Trustee’s Powers. 17.01 The Trustee shall have all the powers conferred on trustees by the Trustee Ordinance (Chapter 8 No. 3) and by way of supplement thereto it is expressly declared as follows:- 17.01.01 the Trustee may in relation to this Trust Deed in good faith act on the opinion or advice of or information obtained from the Registrar or any lawyer, valuer, surveyor, banker, broker, auctioneer, accountant or other expert whether obtained by the Paying Agent, Company or by the Trustee or otherwise and shall not be responsible for any loss occasioned by so acting. Any such opinion, advice or information may be sent or obtained by letter, telemessage, telex, facsimile or cablegram or other means of recording in permanent form, visual messages (whether written or printed) and the Trustee shall not be liable for acting on any opinion, advice or information purporting to be conveyed by any such means even if it shall contain some error or shall not be authentic; 17.01.02 the Trustee shall not be bound to take any steps to ascertain whether any event listed in clause 6.00 has happened and, until it shall have actual knowledge or shall have express notice to the contrary, the Trustee shall be entitled to assume that no such event has happened and that the Company is performing all the obligations on its part contained in these presents and under the Bonds; 17.01.03 save as otherwise expressly provided in this Trust Deed, the Trustee shall, as regards all trust, powers, authorities and discretions vested in it by this Trust Deed, have absolute discretion as to their exercise and, provided it shall have acted with the standard of care and skill prescribed by law, it shall not be responsible for any loss, costs, damages or expenses that may result from the exercise or non-exercise thereof. In particular, it shall not be bound to act (whether at the request or direction of the Bondholders or otherwise) under any of the provisions of this Trust Deed unless the Trustee shall first be indemnified to its satisfaction against all proceedings, claims and demands to which the Trustee may so become liable and all costs, charges and expenses which may be so incurred by the Trustee; 17.01.04 the Trustee shall not be responsible for having acted upon any resolution purporting to have been passed at any meeting of the Bondholders of which minutes have been made and signed, even though it may subsequently be found that there was some defect in the constitution of the meeting or the passing of the resolution or that, for any reason, the resolution was not valid or binding on the Bondholders; 17.01.05 without prejudice to the right of indemnity by law given to trustees the Trustee and every attorney, manager, agent, delegate or other person appointed by it under this Trust Deed shall be indemnified by the Company against all liabilities and expenses properly incurred by it or him in the execution of the powers and trusts of this Trust Deed or of any powers, authorities or discretions vested in it or him pursuant to this Trust Deed. This indemnity shall extend to all actions, proceedings, costs, claims and demands in respect of any matter or thing done or omitted in relation to this Trust Deed. The Trustee may in priority to any payment to the Bondholders retain and pay out of any moneys in its hands on the trusts of this Trust Deed the amount of any such liabilities and expenses and also the remuneration of the Trustee as provided in this Trust Deed; 17.01.06 the Trustee shall be at liberty to hold or to deposit these presents and any deeds or documents relating to these presents or to the Bonds with any banker or banking company or company whose business includes undertaking the safe custody of deeds and documents or with any lawyer or firm of lawyers of good repute, and the Trustee shall not be responsible for any loss incurred in connection with any such holding or deposit and may pay all sums required to be paid on account or in respect of any such deposit; 17.01.07 the Trustee may call for and shall be at liberty to accept a certificate signed by any director of the Company and the Company’s Secretary as sufficient evidence of any fact or matter relating to the Company on which the Trustee may require to be satisfied or to have information or to the effect that, in the opinion of the person so certifying, any particular dealing, transaction, step or thing relating as aforesaid is expedient. The Trustee shall not be bound to call for further evidence and shall not be responsible for any loss occasioned by acting on any such certificate; 17.01.08 as between itself and the Bondholders, the Trustee shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Trust Deed. Every such determination whether made upon a question actually raised or implied in the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee under this Trust Deed) shall be conclusive and binding on the Trustee and the Bondholders; 17.01.09 the Trustee shall not be responsible for the receipt or application by the Company of the proceeds of the issue of any of the Bonds or for the delivery of the Certificates to the persons entitled thereto; 17.01.10 the Trustee shall not be liable to the Company or any Bondholder by reason of having accepted as valid or not having rejected any Certificate purporting to be such and subsequently found to be forged or not authentic; 17.01.11 the Trustee shall not (unless ordered so to do by a court of competent jurisdiction) be required to disclose to any Bondholder any confidential financial or other information made available to the Trustee by the Company in connection with the trusts of these presents and no Bondholder shall be entitled to take any action to obtain from the Trustee any such information; 17.01.12 whenever there shall be more than two trustees of these presents the majority of such trustees shall be competent to execute and exercise all the powers, trusts, authorities and discretions vested in the Trustee by these presents provided that a trust corporation shall be included in such majority; 17.01.13 the Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Trust Deed upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is a Bondholder shall be conclusive and binding upon all future Bondholders of the same Bond and upon Bonds issued in exchange therefor or in place thereof; 17.01.14 at any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right fully to inspect all books and records of the Company pertaining to the Bonds, and to make such copies and memoranda from and with regard thereto as may be desired; 17.01.15 no provision of this Trust Deed shall require the Trustee to expend or risk the Trustee’s own funds or otherwise incur any financial liability in the performance of any of the Trustee’s duties hereunder, or in the exercise of any of the Trustee’s rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to the Trustee. 17.02 Nothing in this clause 17.01 shall exempt the Trustee from or indemnify it against any liability for breach of trust or any liability which by virtue of any rule of law would otherwise attach to it in respect of any negligence, default, breach of duty or breach of trust of which it may be guilty in relation to its duties under this Trust Deed.
Appears in 2 contracts
Samples: Trust Deed (FirstCaribbean International Bank LTD), Trust Deed (FirstCaribbean International Bank LTD)
Trustee’s Powers. 17.01 The Trustee Subject to the limitations set forth in this Trust Agreement, the Trustees shall have all the powers conferred on trustees by the Trustee Ordinance (Chapter 8 No. 3) upon a trustee in accordance with Oregon law and by way of supplement thereto it is expressly declared as follows:-
17.01.01 the Trustee may in relation to this Trust Deed in good faith act on the opinion or advice of or information obtained from the Registrar or any lawyer, valuer, surveyor, banker, broker, auctioneer, accountant or other expert whether obtained by the Paying Agent, Company or by the Trustee or otherwise and shall not be responsible for any loss occasioned by so acting. Any such opinion, advice or information may be sent or obtained by letter, telemessage, telex, facsimile or cablegram or other means of recording in permanent form, visual messages (whether written or printed) and the Trustee shall not be liable for acting on any opinion, advice or information purporting to be conveyed by any such means even if it shall contain some error or shall not be authentic;
17.01.02 the Trustee shall not be bound powers to take any steps and all actions as, in the judgment and discretion of the Trustees, are necessary or advisable to ascertain whether effectuate the purposes of the Trust, including without limitation, each power expressly granted below and any event listed in clause 6.00 has happened and, until it shall have actual knowledge or shall have express notice power reasonably incidental thereto:
(a) to receive cash and other additions to the contraryTrust Fund from any source and to hold, administer, and distribute such additions as part of the Trustee shall be entitled to assume that no such event has happened and that the Company is performing all the obligations on its part contained in these presents and under the BondsTrust Fund;
17.01.03 save (b) to invest and reinvest the funds of the Trust as otherwise expressly provided in this Trust DeedAgreement;
(c) to rely upon any affidavit, certificate, letter, notice, telegram, email or other paper, or upon any telephone conversation or other oral communication, believed by the Trustees to be genuine and sufficient and upon any other evidence believed by the Trustees to be genuine and sufficient, and to be protected and saved harmless in respect of all payments or distributions made hereunder if in good faith and without actual notice or knowledge of the changed condition or status of any person receiving payments or other distributions upon a condition;
(d) to institute any action or proceeding at law or in equity for the collection of sums due the Trust, or otherwise to advance the interests of the Trust in a manner not inconsistent with the terms of this Trust Agreement, prosecute any such action or proceeding to judgment or final decree, enforce any such judgement or final decree, and collect in any manner provided by law the monies adjudged or decreed to be payable; provided that, regardless of any deficiencies of the Trust or any other reason, the Trustee shall, as regards all trust, powers, authorities Trust may not institute or prosecute any action or proceeding at law or in equity against the Company or OSM concerning any claim that has been released under the terms of the 2004 Settlement;
(e) to obtain and discretions vested in it by this Trust Deed, have absolute discretion as to their exercise and, provided it shall have acted with pay the standard of care and skill prescribed by law, it shall not be responsible premiums for any loss, costs, damages or expenses that may result from the exercise or non-exercise thereof. In particular, it shall fidelity bonds; and
(f) to do all other acts and things not be bound to act (whether at the request or direction of the Bondholders or otherwise) under any of inconsistent with the provisions of this Trust Deed unless the Trustee shall first be indemnified to its satisfaction against all proceedings, claims and demands to which the Trustee may so become liable and all costs, charges and expenses which may be so incurred by the Trustee;
17.01.04 the Trustee shall not be responsible for having acted upon any resolution purporting to have been passed at any meeting of the Bondholders of which minutes have been made and signed, even though it may subsequently be found that there was some defect in the constitution of the meeting or the passing of the resolution or that, for any reason, the resolution was not valid or binding on the Bondholders;
17.01.05 without prejudice to the right of indemnity by law given to trustees the Trustee and every attorney, manager, agent, delegate or other person appointed by it under this Trust Deed shall be indemnified by the Company against all liabilities and expenses properly incurred by it or him in the execution of the powers and trusts of this Trust Deed or of any powers, authorities or discretions vested in it or him pursuant to this Trust Deed. This indemnity shall extend to all actions, proceedings, costs, claims and demands in respect of any matter or thing done or omitted in relation to this Trust Deed. The Trustee may in priority to any payment to the Bondholders retain and pay out of any moneys in its hands on the trusts of this Trust Deed the amount of any such liabilities and expenses and also the remuneration of the Trustee as provided in this Trust Deed;
17.01.06 the Trustee shall be at liberty to hold or to deposit these presents and any deeds or documents relating to these presents or to the Bonds with any banker or banking company or company whose business includes undertaking the safe custody of deeds and documents or with any lawyer or firm of lawyers of good repute, and the Trustee shall not be responsible for any loss incurred in connection with any such holding or deposit and may pay all sums required to be paid on account or in respect of any such deposit;
17.01.07 the Trustee may call for and shall be at liberty to accept a certificate signed by any director of the Company and the Company’s Secretary as sufficient evidence of any fact or matter relating to the Company on which the Trustee may require to be satisfied or to have information or to the effect thatAgreement, in the opinion of the person so certifying, any particular dealing, transaction, step or thing relating as aforesaid is expedient. The Trustee shall not be bound same manner and to call for further evidence and shall not be responsible for any loss occasioned by acting on any such certificate;
17.01.08 as between itself and the Bondholders, the Trustee shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Trust Deed. Every such determination whether made upon a question actually raised or implied in the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole extent as prudent persons might or in part could do with respect to their own property, subject to the acts or proceedings limitations of applicable law governing the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings conduct of the Trustee under this Trust Deed) shall be conclusive and binding on the Trustee and the Bondholders;
17.01.09 the Trustee shall not be responsible for the receipt or application by the Company of the proceeds of the issue of any of the Bonds or for the delivery of the Certificates to the persons entitled thereto;
17.01.10 the Trustee shall not be liable to the Company or any Bondholder by reason of having accepted as valid or not having rejected any Certificate purporting to be such and subsequently found to be forged or not authentic;
17.01.11 the Trustee shall not (unless ordered so to do by a court of competent jurisdiction) be required to disclose to any Bondholder any confidential financial or other information made available to the Trustee by the Company in connection with the trusts of these presents and no Bondholder shall be entitled to take any action to obtain from the Trustee any such information;
17.01.12 whenever there shall be more than two trustees of these presents the majority of such trustees shall be competent to execute and exercise all the powers, trusts, authorities and discretions vested in the Trustee by these presents provided that a trust corporation shall be included in such majority;
17.01.13 the Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Trust Deed upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is a Bondholder shall be conclusive and binding upon all future Bondholders of the same Bond and upon Bonds issued in exchange therefor or in place thereof;
17.01.14 at any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right fully to inspect all books and records of the Company pertaining to the Bonds, and to make such copies and memoranda from and with regard thereto as may be desired;
17.01.15 no provision of this Trust Deed shall require the Trustee to expend or risk the Trustee’s own funds or otherwise incur any financial liability in the performance of any of the Trustee’s duties hereunder, or in the exercise of any of the Trustee’s rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to the Trusteefiduciaries.
17.02 Nothing in this clause 17.01 shall exempt the Trustee from or indemnify it against any liability for breach of trust or any liability which by virtue of any rule of law would otherwise attach to it in respect of any negligence, default, breach of duty or breach of trust of which it may be guilty in relation to its duties under this Trust Deed.
Appears in 2 contracts
Samples: Back Pay Trust Agreement, Back Pay Trust Agreement (Oregon Steel Mills Inc)
Trustee’s Powers. 17.01 The Trustee shall have is authorized and empowered, but not by way of limitation, with the following powers, rights and duties:
(a) To hold cash, pending investment or distribution, or the Company’s common stock in the Trust in the name of the Trustee or its nominee, or in another form as it may deem best, with or without disclosing the trustee relationship;
(b) To retain any funds or property subject to any dispute with- out liability for the payment of interest and to decline to make payment or delivery of the funds or property until a court of competent jurisdiction makes final adjudication;
(c) To charge against and pay from the Trust all taxes of any nature levied, assessed, or imposed upon the powers conferred on trustees Trust, and to pay all reasonable expenses and attorney fees which may be necessarily incurred by the Trustee Ordinance with respect to the foregoing matter;
(Chapter 8 No. 3d) To file any tax or information return required of the Trustee, and by way to pay any tax, interest or penalty associat- ed with any such return;
(e) To furnish or cause to be furnished to the Grantor an annual calendar year report concerning the status of supplement thereto it is expressly declared the Trust Account, including a statement of the assets of the Trust held at the end of the calendar year, which report shall be conclusive on all persons, except as follows:-
17.01.01 to any act or transaction concerning which the Grantor files with the Trustee may in relation written exceptions or objections within 60 days after the receipt of the report statements, or which the law authorizes a longer period within which to this Trust Deed in good faith object. The approval of any report, act on the opinion or advice of or information obtained from the Registrar or any lawyer, valuer, surveyor, banker, broker, auctioneer, accountant or other expert whether obtained procedure by the Paying Agent, Company or by Grantor shall be a full acquittance and discharge to the Trustee with respect to the report, act or otherwise and shall not be responsible for procedure;
(f) To begin, maintain or defend any loss occasioned by so acting. Any such opinionlitigation necessary in connection with the administration of the Trust Account, advice or information may be sent or obtained by letter, telemessage, telex, facsimile or cablegram or other means of recording in permanent form, visual messages (whether written or printed) and except that the Trustee shall not be liable for acting on any opinion, advice obliged or information purporting required to be conveyed by any such means even if it shall contain some error or shall not be authenticdo so unless indemnified to its satisfaction;
17.01.02 (g) To forward proxy cards to the Grantor, whose shares shall be voted in accordance with the instructions of the Grantor, or as described in the Program Literature; and
(h) To amend this Trust agreement consistent with the pro- visions of applicable law. Notwithstanding the provisions of Article VIII, the Grantor irrevocably delegates to the Trustee shall not be bound the power to take amend this Trust agreement with- out any steps to ascertain whether any event listed in clause 6.00 has happened and, until it shall have actual knowledge or shall have express prior consent of the Grantor upon 30 days prior written notice to the contrary, Grantor setting forth such amend- ment. If the Trustee shall be entitled to assume that no such event has happened and that does request the Company is performing all the obligations on its part contained in these presents and under the Bonds;
17.01.03 save as otherwise expressly provided in this Trust Deed, the Trustee shall, as regards all trust, powers, authorities and discretions vested in it by this Trust Deed, have absolute discretion as to their exercise and, provided it shall have acted with the standard of care and skill prescribed by law, it shall not be responsible for any loss, costs, damages or expenses that may result from the exercise or non-exercise thereof. In particular, it shall not be bound to act (whether at the request or direction consent of the Bondholders or otherwise) under any of the provisions of this Trust Deed unless the Trustee shall first be indemnified Grantor to its satisfaction against all proceedings, claims and demands to which the Trustee may so become liable and all costs, charges and expenses which may be so incurred by the Trustee;
17.01.04 the Trustee shall not be responsible for having acted upon any resolution purporting to have been passed at any meeting of the Bondholders of which minutes have been made and signed, even though it may subsequently be found that there was some defect in the constitution of the meeting or the passing of the resolution or that, for any reason, the resolution was not valid or binding on the Bondholders;
17.01.05 without prejudice to the right of indemnity by law given to trustees the Trustee and every attorney, manager, agent, delegate or other person appointed by it under this Trust Deed shall be indemnified by the Company against all liabilities and expenses properly incurred by it or him in the execution of the powers and trusts of this Trust Deed or of any powers, authorities or discretions vested in it or him pursuant an amendment to this Trust Deed. This indemnity shall extend agreement, the Grantor will be deemed to all actions, proceedings, costs, claims and demands have consented to such amendment unless the Grantor responds in respect of any matter or thing done or omitted writing with- in relation to this Trust Deed. The Trustee may in priority to any payment to the Bondholders retain and pay out of any moneys in its hands on the trusts of this Trust Deed the amount of any such liabilities and expenses and also the remuneration 30 days of the Trustee as provided in this Trust Deed;
17.01.06 the Trustee shall be at liberty to hold or to deposit these presents and any deeds or documents relating to these presents or to the Bonds with any banker or banking company or company whose business includes undertaking the safe custody of deeds and documents or with any lawyer or firm of lawyers of good repute, and the Trustee shall not be responsible for any loss incurred in connection with any such holding or deposit and may pay all sums required to be paid on account or in respect of any such deposit;
17.01.07 the Trustee may call for and shall be at liberty to accept a certificate signed by any director of the Company and the Company’s Secretary as sufficient evidence of any fact or matter relating to the Company on which the Trustee may require to be satisfied or to have information or to the effect that, in the opinion of the person so certifying, any particular dealing, transaction, step or thing relating as aforesaid is expedient. The Trustee shall not be bound to call for further evidence and shall not be responsible for any loss occasioned by acting on any such certificate;
17.01.08 as between itself and the Bondholders, the Trustee shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Trust Deed. Every such determination whether made upon a question actually raised or implied in the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee under this Trust Deed) shall be conclusive and binding on the Trustee and the Bondholders;
17.01.09 the Trustee shall not be responsible for the receipt or application by the Company of the proceeds of the issue of any of the Bonds or for the delivery of the Certificates to the persons entitled thereto;
17.01.10 the Trustee shall not be liable to the Company or any Bondholder by reason of having accepted as valid or not having rejected any Certificate purporting to be such and subsequently found to be forged or not authentic;
17.01.11 the Trustee shall not (unless ordered so to do by a court of competent jurisdiction) be required to disclose to any Bondholder any confidential financial or other information made available to the Trustee by the Company in connection with the trusts of these presents and no Bondholder shall be entitled to take any action to obtain from the Trustee any such information;
17.01.12 whenever there shall be more than two trustees of these presents the majority mailing of such trustees shall be competent to execute and exercise all the powers, trusts, authorities and discretions vested in the Trustee by these presents provided that a trust corporation shall be included in such majority;
17.01.13 the Trustee shall be protected in acting upon any notice, request, indicating his refusal to consent, certificate, order, affidavit, letter, telegram or other paper or document believed to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Trust Deed upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is a Bondholder shall be conclusive and binding upon all future Bondholders of the same Bond and upon Bonds issued in exchange therefor or in place thereof;
17.01.14 at any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right fully to inspect all books and records of the Company pertaining to the Bonds, and to make such copies and memoranda from and with regard thereto as may be desired;
17.01.15 no provision of this Trust Deed shall require the Trustee to expend or risk the Trustee’s own funds or otherwise incur any financial liability in the performance of any of the Trustee’s duties hereunder, or in the exercise of any of the Trustee’s rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to the Trustee.
17.02 Nothing in this clause 17.01 shall exempt the Trustee from or indemnify it against any liability for breach of trust or any liability which by virtue of any rule of law would otherwise attach to it in respect of any negligence, default, breach of duty or breach of trust of which it may be guilty in relation to its duties under this Trust Deed.
Appears in 2 contracts
Samples: Roth Individual Retirement Account Trust Agreement, Roth Individual Retirement Account Trust Agreement
Trustee’s Powers. 17.01 The Trustee shall have all In addition to the powers conferred on trustees vested in them by law the Trustee Ordinance (Chapter 8 No. 3) and by way of supplement thereto it is expressly declared as follows:-
17.01.01 the Trustee may in relation to this Trust Deed in good faith act on the opinion or advice of or information obtained from the Registrar or any lawyer, valuer, surveyor, banker, broker, auctioneer, accountant or other expert whether obtained by the Paying Agent, Company or by the Trustee or otherwise and shall not be responsible for any loss occasioned by so acting. Any such opinion, advice or information may be sent or obtained by letter, telemessage, telex, facsimile or cablegram or other means of recording in permanent form, visual messages (whether written or printed) and the Trustee shall not be liable for acting on any opinion, advice or information purporting to be conveyed by any such means even if it shall contain some error or shall not be authentic;
17.01.02 the Trustee shall not be bound to take any steps to ascertain whether any event listed in clause 6.00 has happened and, until it shall have actual knowledge or shall have express notice to the contrary, the Trustee shall be entitled to assume that no such event has happened and that the Company is performing all the obligations on its part contained in these presents and under the Bonds;
17.01.03 save as otherwise expressly provided in this Trust Deed, the Trustee Trustees shall, as regards all trust, powers, authorities and discretions vested in it by this Trust Deed, have absolute discretion as subject to their exercise and, provided it shall have acted with the standard of care and skill prescribed by law, it shall not be responsible for any loss, costs, damages or expenses that may result from the exercise or non-exercise thereof. In particular, it shall not be bound to act (whether at the request or direction of the Bondholders or otherwise) under any of the provisions of this Trust Deed unless the Trustee shall first be indemnified to its satisfaction against all proceedings, claims and demands to which the Trustee may so become liable and all costs, charges and expenses which may be so incurred by the Trustee;
17.01.04 the Trustee shall not be responsible for having acted upon any resolution purporting to have been passed at any meeting provided that it is done in achievement or advancement of the Bondholders objectives of which minutes this Trust, have been made the widest powers and signed, even though it may subsequently be found that there was some defect in the constitution of the meeting or the passing of the resolution or that, for any reason, the resolution was not valid or binding on the Bondholders;
17.01.05 without prejudice to the right generality of indemnity by law given the aforegoing they may exercise the following powers:
12.1 To retain and allow the trust assets or any part or parts thereof to trustees remain in the Trustee present state of investment thereof for so long as they may deem fit;
12.2 To invest or reinvest the proceeds of any assets or any monies of the trust in their hands from time to time in immovable and every attorneymovable property and with regard to the latter, managerin Government or municipal securities, agentbanking institutions, delegate registered building society investments or first mortgage bonds, or in such shares, securities or other person appointed by it under investments of whatever nature, as the Trustees in their sole and absolute discretion may deem fit;
12.3 To vary any investments made in terms of clause 12.2 to any other investments;
12.4 To exchange, sell, alienate, lease or otherwise deal with the trust assets, whether movable or immovable, whether corporeal or incorporeal trust assets and of whatsoever nature and wheresoever situate, as they in their sole and absolute discretion may deem fit, and in exercising any powers of sale, whether conferred in this Trust Deed subclause or otherwise, they shall be indemnified entitled to cause such sale to be effected by public auction or by private treaty and in such manner and on such terms and conditions as they in their sole and absolute discretion may deem fit and, in exercising any powers of lease, they shall be entitled to cause any property to be let at such rental, for such period and on such terms and conditions as they, in their sole and absolute discretion may deem fit;
12.5 To pay out of the Company against capital or out of the income of the trust assets for any repairs, improvements or other works of whatsoever nature done on any property forming party of the trust assets or on any buildings or other structures situated thereon;
12.6 To exercise all liabilities the voting powers attached to any shares, debentures or other securities at any time forming part of the trust assets;
12.7 To compromise and expenses properly incurred by it settle for such consideration and upon such terms and conditions as they may deem advisable, all matters arising in relation to the Trust and all such compromises and settlements shall be final and binding;
12.8 To consent to any re-organisation, arrangement or him reconstruction of any company the securities of which form , from time to time, the whole or any part of the trust assets and to consent to any reduction in capital or other dealings with such securities as they may consider advantageous or desirable;
12.9 To surrender and deliver any shares forming part of the trust assets for such consideration and upon such terms and conditions as they may approve to any company reducing its share capital and to receive such consideration in the execution form of cash, securities or other assets as may be agreed upon between them and such company;
12.10 In their sole and absolute discretion, to borrow money and arrange, obtain and utilise credit facilities for the purposes hereof at such time or times, at such rate of interest or other consideration for any such loan or credit facility and upon such terms and conditions as they may deem desirable. Such borrowings and credit facilities may be made from any suitable person or persons and, should they consider it advisable to do so, the Trustees may secure the payment of any such loan or credit facility by pledging or mortgaging the trust assets or any part thereof or by any other security device. Any such loan or credit facility may be extended, renewed or repaid from time to time as the Trustees may deem to be in the best interest of the powers Trust;
12.11 To pay out of the income or out of the capital of the trust assets all municipal and trusts other taxes and other levies, lawfully levied or imposed on the trust assets or income of this the trust assets or any part thereof or which may be imposed on the Trustees in respect of matters arising out of the Trust;
12.12 To make all apportionments in the accounts of the Trust Deed which may be necessary;
12.13 To make secured or unsecured loans, with or without interest, to any person or persons, or to companies in which the Trustees in their representative capacities hold shares, directly or indirectly;
12.14 To employ accountants, attorneys, agents, brokers, or such professional or other assistants as they may consider necessary to transact all or any business of any powers, authorities or discretions vested in it or him whatsoever nature required to be done pursuant to this Trust Deed. This indemnity shall extend , and to pay all actionssuch fees, proceedings, costs, claims and demands in respect of any matter or thing done or omitted in relation to this Trust Deed. The Trustee may in priority to any payment to the Bondholders retain and pay out of any moneys in its hands on the trusts of this Trust Deed the amount of any such liabilities charges and expenses and also the remuneration of the Trustee so incurred as provided in this Trust Deed;
17.01.06 the Trustee shall be at liberty to hold or to deposit these presents and any deeds or documents relating to these presents or to the Bonds with any banker or banking company or company whose business includes undertaking the safe custody of deeds and documents or with any lawyer or firm of lawyers of good reputea first charge, and the Trustee shall not be responsible for any loss incurred in connection with any such holding or deposit and may pay all sums required to be paid on account or in respect of any such deposit;
17.01.07 the Trustee may call for and shall be at liberty to accept a certificate signed by any director of the Company and the Company’s Secretary as sufficient evidence of any fact or matter relating to the Company on which the Trustee may require to be satisfied or to have information or to the effect that, in the opinion of the person so certifying, any particular dealing, transaction, step or thing relating as aforesaid is expedient. The Trustee shall not be bound to call for further evidence and shall not be responsible for any loss occasioned by acting on any such certificate;
17.01.08 as between itself and the Bondholders, the Trustee shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Trust Deed. Every such determination whether made upon a question actually raised or implied in the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee under this Trust Deed) shall be conclusive and binding on the Trustee and the Bondholders;
17.01.09 the Trustee they shall not be responsible for the receipt or application by the Company of the proceeds of the issue of any of the Bonds or for the delivery of the Certificates to the persons entitled thereto;
17.01.10 the Trustee shall not be liable to the Company or any Bondholder by reason of having accepted as valid or not having rejected any Certificate purporting to be such and subsequently found to be forged or not authentic;
17.01.11 the Trustee shall not (unless ordered so to do by a court of competent jurisdiction) be required to disclose to any Bondholder any confidential financial or other information made available to the Trustee by the Company in connection with the trusts of these presents and no Bondholder shall be entitled to take any action to obtain from the Trustee any such information;
17.01.12 whenever there shall be more than two trustees of these presents the majority default of such trustees shall be competent to execute and exercise all the powers, trusts, authorities and discretions vested in the Trustee by these presents provided that a trust corporation shall be included in such majority;
17.01.13 the Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Trust Deed upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is a Bondholder shall be conclusive and binding upon all future Bondholders of the same Bond and upon Bonds issued in exchange therefor or in place thereof;
17.01.14 at any and all reasonable times the Trustee, and its duly authorized agentsaccountants, attorneys, expertsagents, engineersbrokers, accountants professional or other assistants or for any loss occasioned by such employment;
12.15 To determine all problems and representativesmatters of doubt which may arise in the course of their management, shall have the right fully to inspect all books and records administration, realisation, liquidation or utilisation of the Company pertaining trust assets;
12.16 To open and to operate upon (either themselves or by a person or persons authorised by them) a banking account or accounts in the name of the Trust;
12.17 To reimburse themselves out of the capital or out of the income for all expenses incurred by them personally in or about the execution of the Trust and powers conferred upon them by this Trust Deed;
12.18 To, at the Trust’s cost, appoint employees at such remuneration and on such conditions of employment as the Trustees may in their absolute discretion deem fit, and to amend such conditions of employment and terminate the services of employees;
12.19 To pay out of the capital or out of the income of the Trust, any costs and expenses relating to the BondsTrust or to the administration of the Trust;
12.20 To institute or defend legal proceedings, attend meetings of creditors of a private individual, juristic person or body who is a debtor of the Trust, regardless of whether the meeting is concerned with insolvency, liquidation or judicial management or with any other law, to vote on any issue put before the meeting and, in general, exercise all rights becoming to a creditor in similar circumstances;
12.21 With regard to any immovable property or mortgage bond at any time forming part of the trust assets, to execute any act or deed relating to the alienation, partition, exchange, transfer, mortgage, hypothecation or otherwise, in any deeds registry, mining titles office or other public office dealing with servitudes, usufructs, limited interests or otherwise, and to make any applications, grant any consents and agree to any amendments, variations, cancellations, cessions, releases, reductions, substitutions or otherwise generally relating to any deed, bond or document for any purposes and generally to do or cause to be done any act whatsoever in any such copies and memoranda from and with regard thereto as may be desiredoffice;
17.01.15 no provision 12.22 To, subject to the terms and conditions of this Trust Deed shall require and subject to the Trustee to expend terms and conditions accompanying such gift or risk bequest, accept and acquire for the Trustee’s own funds or otherwise incur any financial liability in the performance of any purpose of the Trustee’s duties hereunderTrust any gifts, bequests or in payments of whatsoever nature from any person, firm, company or association that may be given, bequeathed or paid to the exercise of Trust, and any additions so accepted and acquired shall be deemed to form part of the Trustee’s rights or powers, if the Trustee shall have reasonable grounds for believing that repayment Trust administered in terms of such funds or adequate indemnity against such risk or liability is not reasonably assured to the Trustee.
17.02 Nothing in this clause 17.01 shall exempt the Trustee from or indemnify it against any liability for breach of trust or any liability which by virtue of any rule of law would otherwise attach to it in respect of any negligence, default, breach of duty or breach of trust of which it may be guilty in relation to its duties under this Trust Deed.;
Appears in 2 contracts
Samples: Deed of Trust, Deed of Trust
Trustee’s Powers. 17.01 The Trustee shall have 5.1 In addition to all of the powers conferred on trustees upon the Trustees by the Trustee Ordinance (Chapter 8 No. 3) other provisions of this Deed or by any statute or general rule of law, but subject always to paragraphs 5.4 and by way 5.5, the Trustees are hereby given the power to administer the Trust Fund in whatever manner they consider appropriate, and they may take any action in connection with the Trust Fund, and may exercise any power which may now exist or which may arise in the future, to the same extent and as fully as an individual could do, if such individual were the sole beneficial owner of supplement thereto it is expressly declared as follows:-the Trust Fund.
17.01.01 5.2 Without limiting the Trustee generality of paragraph 5.1, but subject always to paragraphs 5.4 and 5.5, the Trustees may exercise any or all of the powers set out in relation the Schedule to this Trust Deed Deed, as they consider appropriate.
5.3 Each and every power conferred upon the Trustees by this Deed:
(a) is an absolute and unfettered power which may be exercised at any time or times and in such manner as the Trustees consider appropriate, and so long as the Trustees act honestly and in good faith act on the opinion when exercising any such power:
(i) no exercise of any such power may be challenged, reversed, reviewed or advice of or information obtained from the Registrar or any lawyer, valuer, surveyor, banker, broker, auctioneer, accountant or other expert whether obtained called into question by the Paying AgentBoard, Company by any person that receives a distribution from this Trust, or by any court having jurisdiction over this Trust or the Trustee or otherwise and Trustees; and
(ii) the Trustees shall not be responsible obliged to give any reason or justification for any loss occasioned by so acting. Any such opinion, advice or information may be sent or obtained by letter, telemessage, telex, facsimile or cablegram or other means of recording in permanent form, visual messages (whether written or printed) and the Trustee shall not be liable for acting on any opinion, advice or information purporting to be conveyed by any such means even if it shall contain some error or shall not be authentic;
17.01.02 the Trustee shall not be bound to take any steps to ascertain whether any event listed in clause 6.00 has happened and, until it shall have actual knowledge or shall have express notice to the contrary, the Trustee shall be entitled to assume that no such event has happened and that the Company is performing all the obligations on its part contained in these presents and under the Bonds;
17.01.03 save as otherwise expressly provided in this Trust Deed, the Trustee shall, as regards all trust, powers, authorities and discretions vested in it by this Trust Deed, have absolute discretion as to their exercise and, provided it shall have acted with the standard of care and skill prescribed by law, it shall not be responsible for any loss, costs, damages or expenses that may result from the exercise or non-exercise thereof. In particularof any such power to the Board, it shall not be bound the Company or to act any person that receives a distribution from this Trust, or to any court having jurisdiction over this Trust or the Trustees;
(whether at b) includes the request right to refrain from exercising such power; and
(c) includes the right to use any part or direction all of the Bondholders or otherwise) under any of Trust Fund to pay the provisions of this Trust Deed unless the Trustee shall first be indemnified to its satisfaction against all proceedings, claims and demands to which the Trustee may so become liable and all costs, charges and expenses which may be so incurred by the Trustee;
17.01.04 the Trustee shall not be responsible for having acted upon any resolution purporting to have been passed at any meeting of the Bondholders of which minutes have been made and signed, even though it may subsequently be found that there was some defect in the constitution of the meeting or the passing of the resolution or that, for any reason, the resolution was not valid or binding on the Bondholders;
17.01.05 without prejudice to the right of indemnity by law given to trustees the Trustee and every attorney, manager, agent, delegate or other person appointed by it under this Trust Deed shall be indemnified by the Company against all liabilities and expenses properly incurred by it or him in the execution of the powers and trusts of this Trust Deed or of any powers, authorities or discretions vested in it or him pursuant to this Trust Deed. This indemnity shall extend to all actions, proceedings, costs, claims and demands in respect of any matter or thing done or omitted in relation to this Trust Deed. The Trustee may in priority to any payment to the Bondholders retain and pay out of any moneys in its hands on the trusts of this Trust Deed the amount of any such liabilities and expenses and also the remuneration of the Trustee as provided in this Trust Deed;
17.01.06 the Trustee shall be at liberty to hold or to deposit these presents and any deeds or documents relating to these presents or to the Bonds with any banker or banking company or company whose business includes undertaking the safe custody of deeds and documents or with any lawyer or firm of lawyers of good repute, and the Trustee shall not be responsible for any loss incurred in connection with any such holding or deposit and may pay all sums required to be paid on account or in respect of any such deposit;
17.01.07 the Trustee may call for and shall be at liberty to accept a certificate signed by any director of the Company and the Company’s Secretary as sufficient evidence of any fact or matter relating to the Company on which the Trustee may require to be satisfied or to have information or to the effect that, in the opinion of the person so certifying, any particular dealing, transaction, step or thing relating as aforesaid is expedient. The Trustee shall not be bound to call for further evidence and shall not be responsible for any loss occasioned by acting on any such certificate;
17.01.08 as between itself and the Bondholders, the Trustee shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Trust Deed. Every such determination whether made upon a question actually raised or implied in the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee under this Trust Deed) shall be conclusive and binding on the Trustee and the Bondholders;
17.01.09 the Trustee shall not be responsible for the receipt or application by the Company of the proceeds of the issue of any of the Bonds or for the delivery of the Certificates to the persons entitled thereto;
17.01.10 the Trustee shall not be liable to the Company or any Bondholder by reason of having accepted as valid or not having rejected any Certificate purporting to be such and subsequently found to be forged or not authentic;
17.01.11 the Trustee shall not (unless ordered so to do by a court of competent jurisdiction) be required to disclose to any Bondholder any confidential financial or other information made available to the Trustee by the Company in connection with the trusts of these presents and no Bondholder shall be entitled to take any action to obtain from the Trustee any such information;
17.01.12 whenever there shall be more than two trustees of these presents the majority of such trustees shall be competent to execute and exercise all the powers, trusts, authorities and discretions vested in the Trustee by these presents provided that a trust corporation shall be included in such majority;
17.01.13 the Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Trust Deed upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is a Bondholder shall be conclusive and binding upon all future Bondholders of the same Bond and upon Bonds issued in exchange therefor or in place thereof;
17.01.14 at any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right fully to inspect all books and records of the Company pertaining to the Bonds, and to make such copies and memoranda from and with regard thereto as may be desired;
17.01.15 no provision of this Trust Deed shall require the Trustee to expend or risk the Trustee’s own funds or otherwise incur any financial liability in the performance of any of the Trustee’s duties hereunderincidental to, or in associated with, the exercise of such power.
5.4 When exercising any power, the Trustees must have regard to the directions of the Trustee’s rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured Board as expressed to the TrusteeTrustees from time to time in writing.
17.02 Nothing 5.5 Notwithstanding any other paragraph of this Deed, the Trustees shall not exercise any power contained or referred to in the following enumerated paragraphs of the Schedule to this clause 17.01 shall exempt Deed without first obtaining the Trustee from or indemnify it against any liability for breach of trust or any liability which by virtue of any rule of law would otherwise attach to it in respect of any negligence, default, breach of duty or breach of trust of which it may be guilty in relation to its duties under this Trust Deed.Board’s written consent:
Appears in 2 contracts
Samples: Deed of Trust (Norwegian Cruise Line Holdings Ltd.), Deed of Trust (Norwegian Cruise Line Holdings Ltd.)
Trustee’s Powers. 17.01 The Trustee shall have all the powers conferred on trustees by the Trustee Ordinance (Chapter 8 No. 3) powers, rights and by way of supplement thereto it is expressly declared privileges as follows:-
17.01.01 the Trustee may in relation to this Trust Deed in good faith act on the opinion or advice of or information obtained from the Registrar or any lawyer, valuer, surveyor, banker, broker, auctioneer, accountant or other expert whether obtained by the Paying Agent, Company or by the Trustee or otherwise and shall not be responsible for any loss occasioned by so acting. Any such opinion, advice or information may be sent required and reasonably necessary to perform, accomplish and comply with the duties, obligations and undertakings required or obtained permitted by letter, telemessage, telex, facsimile or cablegram or other means of recording in permanent form, visual messages (whether written or printed) and the Trustee shall not be liable for acting on any opinion, advice or information purporting this Indenture to be conveyed by any such means even if it shall contain some error or shall not be authentic;
17.01.02 the Trustee shall not be bound to take any steps to ascertain whether any event listed in clause 6.00 has happened andmade, until it shall have actual knowledge or shall have express notice to the contrary, the Trustee shall be entitled to assume that no such event has happened kept and that the Company is performing all the obligations on its part contained in these presents and under the Bonds;
17.01.03 save as otherwise expressly provided in this Trust Deed, the Trustee shall, as regards all trust, powers, authorities and discretions vested in it by this Trust Deed, have absolute discretion as to their exercise and, provided it shall have acted with the standard of care and skill prescribed by law, it shall not be responsible for any loss, costs, damages or expenses that may result from the exercise or non-exercise thereof. In particular, it shall not be bound to act (whether at the request or direction of the Bondholders or otherwise) under any of the provisions of this Trust Deed unless the Trustee shall first be indemnified to its satisfaction against all proceedings, claims and demands to which the Trustee may so become liable and all costs, charges and expenses which may be so incurred performed by the Trustee;
17.01.04 . Without limiting the Trustee foregoing, the Trustee, its assigns and its legal representatives shall not have all the remedies of a secured party under the Uniform Commercial Code and such further rights and remedies as from time to time may hereafter be responsible provided in any relevant jurisdiction for having acted upon a secured party. Further, in case of any resolution purporting to have been passed at receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition, or other similar judicial proceedings affecting the Company, any meeting of other obligor on the Bondholders of which minutes have been made and signedNotes, even though it may subsequently be found that there was some defect in the constitution of the meeting or the passing property of the resolution or that, for any reason, the resolution was not valid or binding on the Bondholders;
17.01.05 without prejudice to the right of indemnity by law given to trustees the Trustee and every attorney, manager, agent, delegate or other person appointed by it under this Trust Deed shall be indemnified by the Company against all liabilities and expenses properly incurred by it or him in the execution of the powers and trusts of this Trust Deed or of any powers, authorities or discretions vested in it or him pursuant to this Trust Deed. This indemnity shall extend to all actions, proceedings, costs, claims and demands in respect of any matter or thing done or omitted in relation to this Trust Deed. The Trustee may in priority to any payment to the Bondholders retain and pay out of any moneys in its hands on the trusts of this Trust Deed the amount of any such liabilities and expenses and also the remuneration of the Trustee as provided in this Trust Deed;
17.01.06 the Trustee shall be at liberty to hold or to deposit these presents and any deeds or documents relating to these presents or to the Bonds with any banker or banking company or company whose business includes undertaking the safe custody of deeds and documents or with any lawyer or firm of lawyers of good repute, and the Trustee shall not be responsible for any loss incurred in connection with any such holding or deposit and may pay all sums required to be paid on account or in respect of any such deposit;
17.01.07 the Trustee may call for and shall be at liberty to accept a certificate signed by any director of the Company and the Company’s Secretary as sufficient evidence of any fact or matter relating to the Company on which the Trustee may require to be satisfied or to have information or to the effect that, in the opinion of the person so certifying, any particular dealing, transaction, step or thing relating as aforesaid is expedient. The Trustee shall not be bound to call for further evidence and shall not be responsible for any loss occasioned by acting on any such certificate;
17.01.08 as between itself and the Bondholderseither, the Trustee shall have full power to determine all questions intervene in such proceedings and doubts arising take any action therein that may be permitted by the court and shall be entitled to file such proofs of claim and other papers and documents as may be necessary or advisable in relation order to have the claims of the Trustee and of the holders of the Notes allowed in any judicial proceeding relative to the Company, or any other obligor on the Notes, or its property, for the entire amount due and payable by the Company or such other obligor under this Indenture at the date of institution of such proceedings and for any additional amount that may become due and payable by the Company or such other obligor after such date, and to collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the Trustee under Section 8.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the holders of the Notes to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to the holders of the Notes pursuant to the terms of this Indenture, to pay to the Trustee any amount due to it under Section 8.06. All rights of action and of asserting claims under this Indenture, or under any of the provisions of this Trust Deed. Every such determination whether made upon a question actually raised or implied in the acts or proceedings of Notes, may be enforced by the Trustee made in good faith (whether or not without the same shall relate in whole or in part to the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee under this Trust Deed) shall be conclusive and binding on the Trustee and the Bondholders;
17.01.09 the Trustee shall not be responsible for the receipt or application by the Company of the proceeds of the issue possession of any of the Bonds Notes, or for the delivery of the Certificates to the persons entitled thereto;
17.01.10 the Trustee shall not be liable to the Company or production thereof on any Bondholder by reason of having accepted as valid or not having rejected any Certificate purporting to be such and subsequently found to be forged or not authentic;
17.01.11 the Trustee shall not (unless ordered so to do by a court of competent jurisdiction) be required to disclose to any Bondholder any confidential financial trial or other information made available to the Trustee by the Company in connection with the trusts of these presents proceeding relative thereto, and no Bondholder shall be entitled to take any action to obtain from the Trustee any such information;
17.01.12 whenever there shall be more than two trustees of these presents the majority of such trustees shall be competent to execute and exercise all the powers, trusts, authorities and discretions vested in the Trustee suit or proceeding instituted by these presents provided that a trust corporation shall be included in such majority;
17.01.13 the Trustee shall be protected brought in acting upon its own name as trustee of an express trust, and any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Trust Deed upon the request or authority or consent recovery of any person who at the time of making such request or giving such authority or consent is a Bondholder judgment shall be conclusive and binding upon all future Bondholders for the pro rata benefit of the same Bond and upon Bonds issued in exchange therefor or in place thereof;
17.01.14 at any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right fully to inspect all books and records holders of the Company pertaining to Notes then Outstanding issued under the Bonds, and to make such copies and memoranda from and with regard thereto as may be desired;
17.01.15 no provision terms of this Trust Deed shall require the Trustee to expend or risk the Trustee’s own funds or otherwise incur any financial liability in the performance of any of the Trustee’s duties hereunder, or in the exercise of any of the Trustee’s rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to the TrusteeIndenture and supplements thereto.
17.02 Nothing in this clause 17.01 shall exempt the Trustee from or indemnify it against any liability for breach of trust or any liability which by virtue of any rule of law would otherwise attach to it in respect of any negligence, default, breach of duty or breach of trust of which it may be guilty in relation to its duties under this Trust Deed.
Appears in 1 contract
Samples: Indenture, Assignment and Security Agreement (Tc Pipelines Lp)
Trustee’s Powers. 17.01 The Trustee Trustees, without any action or consent, by the Beneficiary, shall have and may exercise at any time the following powers and authorities:
(a) To hold and continue to hold as an investment the property, of any additional property which may be received by them, so long as' they deem proper, and to invest, acquire and reinvest in any securities or property, whether or not income--producing, deemed bY them to be for the best interest of the Trust and the Beneficiary; (b) To rent or lease any property of the Trust for the time and upon the terms and for the price or prices as in their discretion and judgment may seem just and proper; (c) To sell and convey any of the property of the Trust or any interest, or to exchange it for other property, for the price or prices and upon the terms as in their discretion and judgment may be deemed for the best interest of the Trust and the Beneficiary; (d) To make all repairs and improvements at any time deemed necessary and proper to and upon real property constituting a part of the Trust; (e) To deduct, retain. expend, and payout of any money belonging to the Trust any and all necessary and proper expenses in connection with the operation and conduct of the Trust; (f) To vote upon all securities belonging to the Trust, and to become a party to any stockholders' agreements deemed advisable by them in connection with the securities; (g) To consent to the reorganization, consolidation, merger, liquidation, readjustment of, or other change in any corporation, company, or association; (h) To compromise, settle, arbitrate, or defend any ·claim or demand in favor of or against the Trust; (i) To incur and pay the ordinary and necessary expenses of administration, including (but not by way of limitation) attorneys' fees, accountants' fees, investment counsel fees, and the like; 0) To act through an agent or attorney-in-fact, by and under power of attorney duly executed by the Trustees, in carrying out any of the authorized powers and duties; (k) To borrow money for any purposes of the Trust, or incidental to their administration, upon their bond or promissory note as trustees, and to secure their repayment by mortgaging, creating a security interest in, or pledging or , otherwise encumbering any part or all of the property of the Trust; (1) To lend money to any person or persons upon the terms and in the ways and with the security as they may deem advisable for the best interest of the Trust and the Beneficiary; (m) To engage in business with the property of the Trust as sole proprietor, or as a general 01: limited partner~ with all the powers conferred on trustees customarily exercised by an individual so engaged in business, and to hold an undivided interest in any property as tenant in common or as tenant in partnership; (n) To determine the Trustee Ordinance (Chapter 8 No. 3) and by way manner in which the expenses incidental to or in connection with the administration of supplement thereto it is expressly declared as follows:-
17.01.01 the Trustee may in relation to this Trust Deed in good faith act on the opinion or advice of or information obtained from the Registrar or any lawyer, valuer, surveyor, banker, broker, auctioneer, accountant or other expert whether obtained by the Paying Agent, Company or by the Trustee or otherwise and shall not be responsible for any loss occasioned by so acting. Any such opinion, advice or information may be sent or obtained by letter, telemessage, telex, facsimile or cablegram or other means of recording in permanent form, visual messages (whether written or printed) and the Trustee shall not be liable for acting on any opinion, advice or information purporting to be conveyed by any such means even if it shall contain some error or shall not be authentic;
17.01.02 the Trustee shall not be bound to take any steps to ascertain whether any event listed in clause 6.00 has happened and, until it shall have actual knowledge or shall have express notice to the contrary, the Trustee shall be entitled to assume that no such event has happened apportioned as between corpus and that the Company is performing income; (o) The , Trustees may freely act under all the obligations on its part contained in these presents and under the Bonds;
17.01.03 save as otherwise expressly provided in this Trust Deed, the Trustee shall, as regards all trust, powers, authorities and discretions vested in it by this Trust Deed, have absolute discretion as to their exercise and, provided it shall have acted with the standard of care and skill prescribed by law, it shall not be responsible for any loss, costs, damages or expenses that may result from the exercise or non-exercise thereof. In particular, it shall not be bound to act (whether at the request or direction of the Bondholders or otherwise) under any of the provisions of powers .by this Trust Deed unless Agreement given to them in all matters concerning the Trustee shall first be indemnified Trust, after forming their judgment based upon all the . circumstances of any particular situation as to its satisfaction against all proceedingsthe wisest and best course to pursue in the . interest of the Trust and the Beneficiary, claims and demands without the necessity of obtaining the consent or permission of any interested person. or the consent or approval of any court The powers . granted to which the Trustee may so become liable and all costs, charges and expenses which Trustees may be so incurred by the Trustee;
17.01.04 the Trustee shall not be responsible for having acted upon any resolution purporting to have been passed at any meeting of the Bondholders of which minutes have been made and signed, even though it may subsequently be found that there was some defect in the constitution of the meeting or the passing of the resolution or that, for any reason, the resolution was not valid or binding on the Bondholders;
17.01.05 without prejudice to the right of indemnity by law given to trustees the Trustee and every attorney, manager, agent, delegate or other person appointed by it under this Trust Deed shall be indemnified by the Company against all liabilities and expenses properly incurred by it or him in the execution of the powers and trusts of this Trust Deed or of any powers, authorities or discretions vested in it or him pursuant to this Trust Deed. This indemnity shall extend to all actions, proceedings, costs, claims and demands in respect of any matter or thing done or omitted in relation to this Trust Deed. The Trustee may in priority to any payment to the Bondholders retain and pay out of any moneys in its hands on the trusts of this Trust Deed the amount of any such liabilities and expenses and also the remuneration of the Trustee as provided in this Trust Deed;
17.01.06 the Trustee shall be at liberty to hold or to deposit these presents and any deeds or documents relating to these presents or to the Bonds with any banker or banking company or company whose business includes undertaking the safe custody of deeds and documents or with any lawyer or firm of lawyers of good repute, and the Trustee shall not be responsible for any loss incurred in connection with any such holding or deposit and may pay all sums required to be paid on account or in respect of any such deposit;
17.01.07 the Trustee may call for and shall be at liberty to accept a certificate signed by any director of the Company and the Company’s Secretary as sufficient evidence of any fact or matter relating to the Company on which the Trustee may require to be satisfied or to have information or to the effect that, in the opinion of the person so certifying, any particular dealing, transaction, step or thing relating as aforesaid is expedient. The Trustee shall not be bound to call for further evidence and shall not be responsible for any loss occasioned by acting on any such certificate;
17.01.08 as between itself and the Bondholders, the Trustee shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Trust Deed. Every such determination whether made upon a question actually raised or implied in the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate exercised in whole or in part part, from time to the acts or proceedings time, and shall be deemed to be supplementary to and riot exclusive' of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings general powers of the Trustee under this Trust Deed) shall be conclusive and binding on the Trustee and the Bondholders;
17.01.09 the Trustee shall not be responsible for the receipt or application by the Company of the proceeds of the issue of any of the Bonds or for the delivery of the Certificates to the persons entitled thereto;
17.01.10 the Trustee shall not be liable to the Company or any Bondholder by reason of having accepted as valid or not having rejected any Certificate purporting to be such and subsequently found to be forged or not authentic;
17.01.11 the Trustee shall not (unless ordered so to do by a court of competent jurisdiction) be required to disclose to any Bondholder any confidential financial or other information made available to the Trustee by the Company in connection with the trusts of these presents and no Bondholder shall be entitled to take any action to obtain from the Trustee any such information;
17.01.12 whenever there shall be more than two trustees of these presents the majority of such trustees shall be competent to execute and exercise all the powers, trusts, authorities and discretions vested in the Trustee by these presents provided that a trust corporation shall be included in such majority;
17.01.13 the Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Trust Deed upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is a Bondholder shall be conclusive and binding upon all future Bondholders of the same Bond and upon Bonds issued in exchange therefor or in place thereof;
17.01.14 at any and all reasonable times the Trusteelaw, and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right fully include all powers necessary to inspect all books and records of the Company pertaining to the Bonds, and to make such copies and memoranda from and with regard thereto as may be desired;
17.01.15 no provision of this Trust Deed shall require the Trustee to expend or risk the Trustee’s own funds or otherwise incur any financial liability in the performance of any of the Trustee’s duties hereunder, or in the exercise of any of the Trustee’s rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to the Trustee.
17.02 Nothing in this clause 17.01 shall exempt the Trustee from or indemnify it against any liability for breach of trust or any liability which by virtue of any rule of law would otherwise attach to it in respect of any negligence, default, breach of duty or breach of trust of which it may be guilty in relation to its duties under this Trust Deed.carry them into effect
Appears in 1 contract
Samples: Credit Agreement (Kimco Realty Corp)
Trustee’s Powers. 17.01 The Trustee shall have all the powers conferred powers, rights and privileges as may be required and reasonably necessary to perform, accomplish and comply with the duties, obligations and undertakings required or permitted by this Indenture to be made, kept and performed by the Trustee. Further, in case of any receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition, or other similar judicial proceedings affecting the Company, any other obligor on trustees the Notes, or the creditors or property of either, the Trustee shall have power to intervene in such proceedings and take any action therein that may be permitted by the court and shall be entitled to file such proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the Noteholders allowed in any judicial proceeding relative to the Company, or any other obligor on the Notes, or its creditors or its property, for the entire amount due and payable by the Company or such other obligor under the Indenture at the date of institution of such proceedings and for any additional amount that may become due and payable by the Company or such other obligor after such date, and to collect and receive any moneys or other property payable or deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the Trustee under SECTION 8.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the Noteholders to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to the Noteholders, to pay to the Trustee any amount due to it under SECTION 8.06. All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Trustee Ordinance (Chapter 8 Nowithout the possession of any of the Notes, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be for the pro rata benefit of the holders of the Notes then Outstanding issued under the terms of this Indenture and supplements thereto. 3) and by way In case of supplement thereto it is expressly declared as follows:-
17.01.01 a Default or Event of Default hereunder, the Trustee may in relation its discretion proceed to this Trust Deed in good faith act on protect and enforce the opinion or advice of or information obtained from the Registrar or any lawyer, valuer, surveyor, banker, broker, auctioneer, accountant or other expert whether obtained by the Paying Agent, Company or by the Trustee or otherwise and shall not be responsible for any loss occasioned by so acting. Any such opinion, advice or information may be sent or obtained by letter, telemessage, telex, facsimile or cablegram or other means of recording in permanent form, visual messages (whether written or printed) and the Trustee shall not be liable for acting on any opinion, advice or information purporting to be conveyed by any such means even if it shall contain some error or shall not be authentic;
17.01.02 the Trustee shall not be bound to take any steps to ascertain whether any event listed in clause 6.00 has happened and, until it shall have actual knowledge or shall have express notice to the contrary, the Trustee shall be entitled to assume that no such event has happened and that the Company is performing all the obligations on its part contained in these presents and under the Bonds;
17.01.03 save as otherwise expressly provided in this Trust Deed, the Trustee shall, as regards all trust, powers, authorities and discretions rights vested in it by this Trust Deed, have absolute discretion Indenture by such appropriate judicial proceedings as to their exercise and, provided it shall have acted with the standard of care and skill prescribed by law, it shall not be responsible for any loss, costs, damages or expenses that may result from the exercise or non-exercise thereof. In particular, it shall not be bound to act (whether at the request or direction of the Bondholders or otherwise) under any of the provisions of this Trust Deed unless the Trustee shall first be indemnified deem most effectual to its satisfaction against all proceedingsprotect and enforce any of such rights, claims and demands to which either at law or in equity or in bankruptcy or otherwise, whether for the Trustee may so become liable and all costs, charges and expenses which may be so incurred by the Trustee;
17.01.04 the Trustee shall not be responsible for having acted upon specific enforcement of any resolution purporting to have been passed at any meeting covenant or agreement contained in this Indenture or in aid of the Bondholders of which minutes have been made and signed, even though it may subsequently be found that there was some defect in the constitution of the meeting or the passing of the resolution or that, for any reason, the resolution was not valid or binding on the Bondholders;
17.01.05 without prejudice to the right of indemnity by law given to trustees the Trustee and every attorney, manager, agent, delegate or other person appointed by it under this Trust Deed shall be indemnified by the Company against all liabilities and expenses properly incurred by it or him in the execution of the powers and trusts of this Trust Deed or exercise of any powers, authorities or discretions vested in it or him pursuant to this Trust Deed. This indemnity shall extend to all actions, proceedings, costs, claims and demands in respect of any matter or thing done or omitted in relation to this Trust Deed. The Trustee may in priority to any payment to the Bondholders retain and pay out of any moneys in its hands on the trusts of this Trust Deed the amount of any such liabilities and expenses and also the remuneration of the Trustee as provided power granted in this Trust Deed;
17.01.06 the Trustee shall be at liberty to hold Indenture, or to deposit these presents and enforce any deeds other legal or documents relating to these presents or to the Bonds with any banker or banking company or company whose business includes undertaking the safe custody of deeds and documents or with any lawyer or firm of lawyers of good repute, and the Trustee shall not be responsible for any loss incurred in connection with any such holding or deposit and may pay all sums required to be paid on account or in respect of any such deposit;
17.01.07 the Trustee may call for and shall be at liberty to accept a certificate signed by any director of the Company and the Company’s Secretary as sufficient evidence of any fact or matter relating to the Company on which the Trustee may require to be satisfied or to have information or to the effect that, in the opinion of the person so certifying, any particular dealing, transaction, step or thing relating as aforesaid is expedient. The Trustee shall not be bound to call for further evidence and shall not be responsible for any loss occasioned by acting on any such certificate;
17.01.08 as between itself and the Bondholders, the Trustee shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Trust Deed. Every such determination whether made upon a question actually raised or implied in the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee under this Trust Deed) shall be conclusive and binding on the Trustee and the Bondholders;
17.01.09 the Trustee shall not be responsible for the receipt or application by the Company of the proceeds of the issue of any of the Bonds or for the delivery of the Certificates to the persons entitled thereto;
17.01.10 the Trustee shall not be liable to the Company or any Bondholder by reason of having accepted as valid or not having rejected any Certificate purporting to be such and subsequently found to be forged or not authentic;
17.01.11 the Trustee shall not (unless ordered so to do by a court of competent jurisdiction) be required to disclose to any Bondholder any confidential financial or other information made available to the Trustee by the Company in connection with the trusts of these presents and no Bondholder shall be entitled to take any action to obtain from the Trustee any such information;
17.01.12 whenever there shall be more than two trustees of these presents the majority of such trustees shall be competent to execute and exercise all the powers, trusts, authorities and discretions equitable right vested in the Trustee by these presents provided that a trust corporation shall be included in such majority;
17.01.13 the Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram this Indenture or other paper or document believed to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Trust Deed upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is a Bondholder shall be conclusive and binding upon all future Bondholders of the same Bond and upon Bonds issued in exchange therefor or in place thereof;
17.01.14 at any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right fully to inspect all books and records of the Company pertaining to the Bonds, and to make such copies and memoranda from and with regard thereto as may be desired;
17.01.15 no provision of this Trust Deed shall require the Trustee to expend or risk the Trustee’s own funds or otherwise incur any financial liability in the performance of any of the Trustee’s duties hereunder, or in the exercise of any of the Trustee’s rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to the Trusteelaw.
17.02 Nothing in this clause 17.01 shall exempt the Trustee from or indemnify it against any liability for breach of trust or any liability which by virtue of any rule of law would otherwise attach to it in respect of any negligence, default, breach of duty or breach of trust of which it may be guilty in relation to its duties under this Trust Deed.
Appears in 1 contract
Samples: Trust Indenture and Security Agreement (Energysouth Inc)
Trustee’s Powers. 17.01 1.1. The Trustee shall Trustees shall, in relation to the assets of the Trust, have all the same powers conferred on trustees as a natural person acting as the beneficial owner thereof and without prejudice thereto and to all statutory powers and immunities, shall have the powers and immunities set out herein without being limited by any specific powers set out herein, provided that the Trustee Ordinance (Chapter 8 NoTrustees shall not exercise any of their powers so as to conflict with the beneficial provisions of the Scheme or to infringe any restrictions expressly imposed herein upon the exercise of any powers.
1.2. 3) In any case of doubt or dispute about the meaning and by way the effect of supplement thereto it any word, phrase or provision in the Deed the same shall be referred for interpretation to the Trustees whose decision thereon shall be final and conclusive.
1.3. The Trustees shall have and be entitled to exercise all powers, rights, authorities and discretions in connection with the Scheme which are required or proper to enable them to carry out any transaction, act, instrument or thing arising under or in connection with the Scheme. The consent or concurrence of the Employees or the Beneficiaries or any of them shall not be necessary in connection with the giving of any receipt or discharge or the making of any payment or the doing of any act or thing made or done in the exercise of their powers as Trustees or in connection with the Scheme, except as is expressly declared as follows:-
17.01.01 provided in the Trustee may Deed. Persons dealing in good faith with the Trustees in relation to this Trust Deed in good faith act on the opinion or advice of or information obtained from the Registrar or any lawyer, valuer, surveyor, banker, broker, auctioneer, accountant or other expert whether obtained by the Paying Agent, Company or by the Trustee or otherwise and Scheme shall not be responsible entitled to, or be under any obligation to, enquire of the Trustees about the investment or application of monies paid or property transferred by them to the Trustees, but shall be completely exonerated by the Trustees' receipt.
1.4. In the event of the Trustees being liable to or accountable for any loss occasioned by so acting. Any such opinion, advice or information may be sent or obtained by letter, telemessage, telex, facsimile or cablegram tax imposed in any jurisdiction or other means imposition of recording in permanent form, visual messages (whether written or printed) and the Trustee shall not be liable for acting on any opinion, advice or information purporting to be conveyed by any such means even if it shall contain some error or shall not be authentic;
17.01.02 the Trustee shall not be bound to take any steps to ascertain whether any event listed in clause 6.00 has happened and, until it shall have actual knowledge or shall have express notice kind referable to the contraryassets of the Trust or any benefits payable under the Scheme or otherwise in connection with the Scheme, the Trustee Trustees shall be entitled to assume that no pay such event has happened and that the Company is performing all the obligations on its part contained in these presents and under the Bonds;
17.01.03 save as otherwise expressly provided in this Trust Deed, the Trustee shall, as regards all trust, powers, authorities and discretions vested in it by this Trust Deed, have absolute discretion as to their exercise and, provided it shall have acted with the standard of care and skill prescribed by law, it shall not be responsible for any loss, costs, damages tax or expenses that may result other imposition from the exercise or non-exercise thereof. In particular, it shall not be bound to act (whether at the request or direction assets of the Bondholders or otherwise) under any of the provisions of this Trust Deed unless the Trustee shall first be indemnified to its satisfaction against all proceedings, claims and demands to which the Trustee may so become liable and all costs, charges and expenses which may be so incurred by the Trustee;
17.01.04 the Trustee shall not be responsible for having acted upon any resolution purporting to have been passed at any meeting of the Bondholders of which minutes have been made and signed, even though it may subsequently be found notwithstanding that there was some defect in the constitution of the meeting or the passing of the resolution or that, for any reason, the resolution was not valid or binding on the Bondholders;
17.01.05 without prejudice to the right of indemnity by law given to trustees the Trustee and every attorney, manager, agent, delegate or other person appointed by it under this Trust Deed shall be indemnified by the Company against all liabilities and expenses properly incurred by it or him in the execution of the powers and trusts of this Trust Deed or of any powers, authorities or discretions vested in it or him pursuant to this Trust Deed. This indemnity shall extend to all actions, proceedings, costs, claims and demands in respect of any matter or thing done or omitted in relation to this Trust Deed. The Trustee may in priority to any payment to the Bondholders retain and pay out of any moneys in its hands on the trusts of this Trust Deed the amount of any such liabilities and expenses and also the remuneration of the Trustee as provided in this Trust Deed;
17.01.06 the Trustee shall be at liberty to hold or to deposit these presents and any deeds or documents relating to these presents or to the Bonds with any banker or banking company or company whose business includes undertaking the safe custody of deeds and documents or with any lawyer or firm of lawyers of good repute, and the Trustee shall not be responsible for any loss incurred in connection with any such holding or deposit and may pay all sums required to be paid on account or in respect of any such deposit;
17.01.07 the Trustee may call for and shall be at liberty to accept a certificate signed by any director of the Company and the Company’s Secretary as sufficient evidence of any fact or matter relating to the Company on which the Trustee may require to be satisfied or to have information or to the effect that, in the opinion of the person so certifying, any particular dealing, transaction, step or thing relating as aforesaid is expedient. The Trustee shall not be bound to call for further evidence and shall not be responsible for any loss occasioned by acting on any such certificate;
17.01.08 as between itself and the Bondholders, the Trustee shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Trust Deed. Every such determination whether made upon a question actually raised or implied in the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee under this Trust Deed) shall be conclusive and binding on the Trustee and the Bondholders;
17.01.09 the Trustee shall not be responsible for the receipt or application by the Company of the proceeds of the issue of any of the Bonds or for the delivery of the Certificates to the persons entitled thereto;
17.01.10 the Trustee shall not be liable to the Company or any Bondholder by reason of having accepted as valid or not having rejected any Certificate purporting to be such and subsequently found to be forged or not authentic;
17.01.11 the Trustee shall not (unless ordered so to do by a court of competent jurisdiction) be required to disclose to any Bondholder any confidential financial or other information made available to the Trustee by the Company in connection with the trusts of these presents and no Bondholder shall be entitled to take any action to obtain from the Trustee any such information;
17.01.12 whenever there shall be more than two trustees of these presents the majority of such trustees shall be competent to execute and exercise all the powers, trusts, authorities and discretions vested in the Trustee by these presents provided that a trust corporation shall be included in such majority;
17.01.13 the Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Trust Deed upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is a Bondholder shall be conclusive and binding upon all future Bondholders of the same Bond and upon Bonds issued would not be legally enforceable in exchange therefor or the jurisdiction in place thereof;
17.01.14 at any and all reasonable times which the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right fully to inspect all books and records assets of the Company pertaining to Trust are for the Bonds, and to make such copies and memoranda from and with regard thereto as may be desired;
17.01.15 no provision of this Trust Deed shall require the Trustee to expend or risk the Trustee’s own funds or otherwise incur any financial liability in the performance of any of the Trustee’s duties hereunder, or in the exercise of any of the Trustee’s rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to the Trusteetime being situated.
17.02 Nothing in this clause 17.01 shall exempt the Trustee from or indemnify it against any liability for breach of trust or any liability which by virtue of any rule of law would otherwise attach to it in respect of any negligence, default, breach of duty or breach of trust of which it may be guilty in relation to its duties under this Trust Deed.
Appears in 1 contract
Samples: Trust Deed (Mih LTD)
Trustee’s Powers. 17.01 The Trustee In the administration of this Trust, the Trustees shall have such power as shall be necessary and commensurate with their duty to manage this Trust. The powers herein granted to the Trustees may be exercised in whole or in part, from time to time, and shall be deemed to be supplementary to and not exclusive of the general powers of Trustees pursuant to law, and shall include all powers necessary to carry this Trust into effect, and in general the Trustees shall have the powers conferred on trustees of an individual owner of property who is under no trust obligation. All powers shall be exercised in a fiduciary capacity as provided by Alaska law and this Trust Agreement. By way of illustration and not of limitation (except as expressly indicated), the Trustees shall have the following powers:
9.1 To hold and continue to hold as an investment the funds or assets received hereunder, and any additional property which may be received and accepted by the Trustee Ordinance (Chapter 8 No. 3) Trustees, so long as the Trustees deem proper, and to invest and reinvest in any securities or property, deemed by way the Trustees to be for the best interest of supplement thereto it is expressly declared as follows:-
17.01.01 the Trustee may in relation to this Trust Deed in good faith act on the opinion or advice of or information obtained from the Registrar or any lawyer, valuer, surveyor, banker, broker, auctioneer, accountant or other expert whether obtained by the Paying Agent, Company or by the Trustee or otherwise and shall not be responsible for any loss occasioned by so acting. Any such opinion, advice or information may be sent or obtained by letter, telemessage, telex, facsimile or cablegram or other means of recording in permanent form, visual messages (whether written or printed) and the Trustee shall not be liable for acting on any opinionBeneficiaries, advice or information purporting to be conveyed by any such means even if it shall contain some error or shall not be authentic;
17.01.02 the Trustee shall not be bound to take any steps to ascertain whether any event listed in clause 6.00 has happened and, until it shall have actual knowledge or shall have express notice to the contrary, the Trustee except that no investment shall be entitled to assume that no such event has happened and that the Company made which is performing all the obligations on its part contained in these presents and prohibited for Trusts under the Bonds;
17.01.03 save as otherwise expressly provided in this Trust Deed, the Trustee shall, as regards all trust, powers, authorities and discretions vested in it ANCSA or by this Trust DeedAgreement or does not meet the policies established by the Trustees;
9.2 To invest and reinvest in such stocks, have absolute discretion bonds and other securities and properties as the Trustees may deem advisable, including stocks and unsecured obligations, undivided interests, interests in investment Trusts, legal and discretionary common Trust funds, mutual funds, leases, and property which is within or outside of Alaska. Notwithstanding this authorization, the Trustees shall limit investments to their exercise and, provided it shall have acted with the standard of care and skill prescribed those that are allowed by law, it shall not be responsible for any loss, costs, damages or expenses that may result from the exercise or non-exercise thereof. In particular, it shall not be bound to act (whether at the request or direction of the Bondholders or otherwise) under any of the provisions of this Trust Deed unless the Trustee shall first be indemnified to its satisfaction against all proceedingsAgreement, claims are allowed for Trusts under ANCSA and demands to which the Trustee may so become liable and all costs, charges and expenses which may be so incurred are allowed by the Trusteepolicies established by the Trustees;
17.01.04 the Trustee shall not be responsible for having acted upon any resolution purporting to have been passed at any meeting of the Bondholders of which minutes have been made and signed9.3 To deduct, even though it may subsequently be found that there was some defect in the constitution of the meeting or the passing of the resolution or thatretain, for any reasonexpend, the resolution was not valid or binding on the Bondholders;
17.01.05 without prejudice to the right of indemnity by law given to trustees the Trustee and every attorney, manager, agent, delegate or other person appointed by it under this Trust Deed shall be indemnified by the Company against all liabilities and expenses properly incurred by it or him in the execution of the powers and trusts of this Trust Deed or of any powers, authorities or discretions vested in it or him pursuant to this Trust Deed. This indemnity shall extend to all actions, proceedings, costs, claims and demands in respect of any matter or thing done or omitted in relation to this Trust Deed. The Trustee may in priority to any payment to the Bondholders retain and pay out of any moneys in its hands on the trusts of money belonging to this Trust Deed the amount of any such liabilities and all necessary and proper expenses and also the remuneration of the Trustee as provided in this Trust Deed;
17.01.06 the Trustee shall be at liberty to hold or to deposit these presents and any deeds or documents relating to these presents or to the Bonds with any banker or banking company or company whose business includes undertaking the safe custody of deeds and documents or with any lawyer or firm of lawyers of good repute, and the Trustee shall not be responsible for any loss incurred in connection with any such holding or deposit the operation and may conduct of this Trust, and to pay all sums required to taxes (except income taxes), insurance premiums, and other legal assessments, debts, claims or charges which at any time may be paid on account due and owing by, or in respect of any such depositwhich may exist against, this Trust;
17.01.07 9.4 To vote all securities belonging to this Trust, and to become a party to any stockholders’ agreements deemed advisable by the Trustee may call for and shall be at liberty Trustees in connection with such securities;
9.5 To litigate, compromise, settle, arbitrate, or defend any claim or demand in favor of or against the Trustees; to accept a certificate signed by enforce any director of the Company and the Company’s Secretary as sufficient evidence of any fact bonds, mortgages, security agreements, or matter relating other obligations or liens held hereunder; to the Company on which the Trustee may require to be satisfied waive or to have information or to the effect thatrelinquish, in the opinion of the person so certifying, any particular dealing, transaction, step or thing relating as aforesaid is expedient. The Trustee shall not be bound to call for further evidence and shall not be responsible for any loss occasioned by acting on purpose or reason (including without limitation to avoid a characterization that this Trust operates as a business) any power or right this Trust may have; and to enter upon such certificatecontracts and agreements and to make such compromises or settlements of debts, claims or controversies as the Trustees may deem necessary or advisable;
17.01.08 as between itself 9.6 To incur and the Bondholders, the Trustee shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Trust Deed. Every such determination whether made upon a question actually raised or implied in the acts or proceedings of the Trustee made in good faith pay (whether from Principal or Cash Income or both) the ordinary and necessary expenses of administration including, but not limited to, employee compensation and reasonable attorney, accounting, consultants and other professional fees, and to indemnify any person as the same shall relate Trustees deem appropriate;
9.7 To act hereunder through a committee, including committees that are composed in whole or in part to the acts by persons who are not Trustees, or proceedings through an agent or attorney-in-fact, by and under power of the Trustee made in good faith (whether attorney or not the same shall relate in whole or in part to the acts or proceedings of the Trustee under this Trust Deed) shall be conclusive and binding on the Trustee and the Bondholders;
17.01.09 the Trustee shall not be responsible for the receipt or application other written authorization duly executed by the Company of the proceeds of the issue of Trustees, in carrying out any of the Bonds or for the delivery of the Certificates to the persons entitled theretopowers and duties herein authorized;
17.01.10 9.8 To determine the Trustee shall not be liable manner in which the expenses incidental to the Company or any Bondholder by reason of having accepted as valid or not having rejected any Certificate purporting to be such and subsequently found to be forged or not authentic;
17.01.11 the Trustee shall not (unless ordered so to do by a court of competent jurisdiction) be required to disclose to any Bondholder any confidential financial or other information made available to the Trustee by the Company in connection with the trusts of these presents and no Bondholder shall be entitled to take any action to obtain from the Trustee any such information;
17.01.12 whenever there shall be more than two trustees of these presents the majority of such trustees shall be competent to execute and exercise all the powers, trusts, authorities and discretions vested in the Trustee by these presents provided that a trust corporation shall be included in such majority;
17.01.13 the Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Trust Deed upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is a Bondholder shall be conclusive and binding upon all future Bondholders of the same Bond and upon Bonds issued in exchange therefor or in place thereof;
17.01.14 at any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right fully to inspect all books and records of the Company pertaining to the Bonds, and to make such copies and memoranda from and with regard thereto as may be desired;
17.01.15 no provision administration of this Trust Deed shall require be apportioned between Principal and Income;
9.9 To make any division or distribution required under the Trustee terms of this Trust in kind or in money, or partly in kind and partly in money. The Trustees shall not be required to expend or risk the Trustee’s own funds or otherwise incur any financial liability in the performance of any make physical division of the Trustee’s duties hereunderTrust Fund except when necessary for distribution of Principal, but may, in their discretion, keep the Principal of this Trust in one or in the exercise of more consolidated funds. The Trustees shall not be required to make any of the Trustee’s rights or powers, if the Trustee shall have reasonable grounds provision for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to the Trustee.
17.02 Nothing in this clause 17.01 shall exempt the Trustee from or indemnify it against any liability for breach of trust or any liability which by virtue of any rule of law would otherwise attach to it depreciation in respect of any negligencetangible property, defaultor for the purpose of amortizing or making good any amounts paid in premiums on the purchase of securities or of any other property;
9.10 To freely act under all or any of the powers given to the Trustees by this Trust in all matters concerning this Trust herein created, breach including without limitation to make discretionary distributions of duty income and Principal, after forming their judgment based upon all the circumstances of any particular situation as to the wisest and best course to pursue in the best interests of this Trust and its Beneficiaries, without the necessity of obtaining the consent or breach approval of any court;
9.11 To make any election permitted by tax law which is deemed to be in the best interest of this Trust or the Beneficiaries, provided that in all events the Trustees shall timely make and continue in force the election to be governed by Internal Revenue Code Section 646;
9.12 To restate this Trust Agreement without action of the Beneficiaries at any time following any modification permitted to be made by this Trust Agreement;
9.13 To issue certificates representing the Trust Units, if certificates are deemed appropriate, with such certificates in such form and to contain such provisions as the Trustees shall deem appropriate. To the extent that the provisions of section 22 apply, any such certificates may contain a Testamentary Disposition Clause like that described in A.S. 13.16.705 as amended, to facilitate non- probate transfer of the Trust Units upon death of a holder; alternatively, a stand-alone Testamentary Disposition may be provided to the holders of Trust Units;
9.14 To invest the Trust Fund in conjunction and/or in common with any other trust funds for which the Trustees as a group are fiduciaries whether as Trustees or otherwise, without the need for physical segregation, provided that the Trustees shall maintain sufficient accounting on a separate share basis for the separate shares or all trust funds being so invested so that at all times the Trustees can readily and easily identify and determine the balance of each set of trust of which it may be guilty in relation to its duties under funds; and
9.15 To merge this Trust Deedwith any other Trust with the same or substantially the same Beneficiaries, so long as the terms of each Trust Agreement are substantially similar and/or have similar objectives and purposes, so that thereafter there is only one Trust.
Appears in 1 contract
Samples: Trust Agreement
Trustee’s Powers. 17.01 The Trustee 9.1 Subject to the express terms of this Deed (and without limiting the generality of the foregoing) the Trustees shall have in relation to the Trust Fund and the income arising from the Trust Fund all the same powers conferred on trustees by as a natural person acting as beneficial owner of the Trustee Ordinance (Chapter 8 No. 3) property from time to time comprising the Trust Fund and such powers shall not be restricted to any principle of construction or rule of law except to the extent that such is obligatory.
9.2 Without limiting the generality of the preceding paragraph and merely by way of supplement thereto it example the Trustees shall have the powers set out in Schedule II to this Deed which may be exercised either alone or jointly with any other person.
9.3 Notwithstanding Clause 9.1, the Trustees shall not dispose (whether legally or beneficially) of any interest in the Shares or any other asset of the Trust Fund (and where more than one asset of the Trust Fund is expressly declared disposed of in one or more transactions which substantially represent a single disposition of assets, those assets shall be regarded as follows:-a single asset) unless:
17.01.01 (a) the disposal has been approved by a Special Resolution of the Trustees; and
(b) where the disposition is of Shares, if the number of Shares proposed to be disposed of:
(i) is equal to or greater than 5 per cent of the total issued share capital of the Company or of the class or classes being disposed of (as determined in the manner provided by Section 24 of the Securities Amendment Act 1988); or
(ii) when aggregated with any previous dispositions of Shares which have not been the subject of a Consumer Consultative Procedure, would be equal to or greater than 5 per cent of the total issued share capital of the Company or of the class or classes being disposed of (as determined in the manner provided by Section 24 of the Securities Amendment Act 1988); the Trustees have first implemented a Consumer Consultative Procedure in respect of the proposed disposal; and
(c) where the disposition is of an asset (other than current year net annual income) which exceeds (or when aggregated with the value of assets previously disposed of which were not subject to a Consumer Consultative Procedure exceeds) in value five (5) per cent of the value of the Trust Fund, the Trustees have first implemented a Consumer Consultative Procedure in respect of the proposed disposal.
9.4 Notwithstanding the provisions of Section 13C of the Trustee may in relation to this Trust Deed in good faith act on the opinion or advice of or information obtained from the Registrar or any lawyer, valuer, surveyor, banker, broker, auctioneer, accountant or other expert whether obtained by the Paying Agent, Company or by the Trustee or otherwise and shall not be responsible for any loss occasioned by so acting. Any such opinion, advice or information may be sent or obtained by letter, telemessage, telex, facsimile or cablegram or other means of recording in permanent form, visual messages (whether written or printed) Act 1956 and the likelihood that the Trustees will from time to time include persons whose profession, employment or business is or includes acting as a Trustee or
9.5 Subject to Clause 15 but notwithstanding anything else in this Deed, no Trustee shall not be liable for acting on any opinion, advice or information purporting to be conveyed by any such means even if it shall contain some error or shall not be authentic;
17.01.02 the Trustee shall not be bound to take any steps to ascertain whether any event listed in clause 6.00 has happened and, until it shall have actual knowledge or shall have express notice to the contrary, the Trustee shall be entitled to assume that no such event has happened and that the Company is performing all the obligations on its part contained in these presents and under the Bonds;
17.01.03 save as otherwise expressly provided in this Trust Deed, the Trustee shall, as regards all trust, powers, authorities and discretions vested in it by this Trust Deed, have absolute discretion as to their exercise and, provided it shall have acted with the standard breach of care and skill prescribed by law, it shall not be responsible for any loss, costs, damages or expenses that may result from the exercise or non-exercise thereof. In particular, it shall not be bound to act (whether at the request or direction of the Bondholders or otherwise) under any of the provisions of this Trust Deed unless the Trustee shall first be indemnified to its satisfaction against all proceedings, claims and demands to which the Trustee may so become liable and all costs, charges and expenses which may be so incurred by the Trustee;
17.01.04 the Trustee shall not be responsible for having acted upon any resolution purporting to have been passed at any meeting of the Bondholders of which minutes have been made and signed, even though it may subsequently be found that there was some defect in the constitution of the meeting or the passing of the resolution or that, for any reason, the resolution was not valid or binding on the Bondholders;
17.01.05 without prejudice to the right of indemnity by law given to trustees the Trustee and every attorney, manager, agent, delegate or other person appointed by it under this Trust Deed shall be indemnified by the Company against all liabilities and expenses properly incurred by it or him in the execution of the powers and trusts of this Trust Deed or of any powers, authorities or discretions vested in it or him pursuant to this Trust Deed. This indemnity shall extend to all actions, proceedings, costs, claims and demands trust in respect of any matter duty to exercise the care, diligence and skill that a prudent person of business would exercise in managing the affairs of others or thing done that a prudent person engaged in a profession, employment or omitted business that is or includes acting as a Trustee or investing money on behalf of others would exercise in relation to this Trust Deed. The Trustee may managing the affairs of others merely (in priority to any payment to either case) because the Bondholders retain and pay out of any moneys in its hands on the trusts of this Trust Deed the amount of any such liabilities and expenses and also the remuneration investments of the Trustee as provided in this Trust Deed;
17.01.06 the Trustee shall be at liberty to hold or to deposit these presents and any deeds or documents relating to these presents or to the Bonds with any banker or banking company or company whose business includes undertaking the safe custody of deeds and documents or with any lawyer or firm of lawyers of good repute, and the Trustee shall Fund are not be responsible for any loss incurred in connection with any such holding or deposit and may pay all sums required to be paid on account or in respect of any such deposit;
17.01.07 the Trustee may call for and shall be at liberty to accept a certificate signed by any director of the Company and the Company’s Secretary as sufficient evidence of any fact or matter relating to the Company on which the Trustee may require to be satisfied or to have information or to the effect that, in the opinion of the person so certifying, any particular dealing, transaction, step or thing relating as aforesaid is expedient. The Trustee shall not be bound to call for further evidence and shall not be responsible for any loss occasioned by acting on any such certificate;
17.01.08 as between itself and the Bondholders, the Trustee shall have full power to determine all questions and doubts arising in relation to any of the provisions of this Trust Deed. Every such determination whether made upon a question actually raised or implied in the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee made in good faith (whether or not the same shall relate in whole or in part to the acts or proceedings of the Trustee under this Trust Deed) shall be conclusive and binding on the Trustee and the Bondholders;
17.01.09 the Trustee shall not be responsible for the receipt or application by the Company of the proceeds of the issue of any of the Bonds or for the delivery of the Certificates to the persons entitled thereto;
17.01.10 the Trustee shall not be liable to the Company or any Bondholder by reason of having accepted as valid or not having rejected any Certificate purporting to be such and subsequently found to be forged or not authentic;
17.01.11 the Trustee shall not (unless ordered so to do by a court of competent jurisdiction) be required to disclose to any Bondholder any confidential financial or other information made available to the Trustee by the Company in connection with the trusts of these presents and no Bondholder shall be entitled to take any action to obtain from the Trustee any such information;
17.01.12 whenever there shall be more than two trustees of these presents the majority of such trustees shall be competent to execute and exercise all the powers, trusts, authorities and discretions vested in the Trustee by these presents provided that a trust corporation shall be included in such majority;
17.01.13 the Trustee shall be protected in acting upon any notice, request, consent, certificate, order, affidavit, letter, telegram or other paper or document believed to be genuine and correct and to have been signed or sent by the proper person or persons. Any action taken by the Trustee pursuant to this Trust Deed upon the request or authority or consent of any person who at the time of making such request or giving such authority or consent is a Bondholder shall be conclusive and binding upon all future Bondholders of the same Bond and upon Bonds issued in exchange therefor or in place thereof;
17.01.14 at any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, engineers, accountants and representatives, shall have the right fully to inspect all books and records of the Company pertaining to the Bonds, and to make such copies and memoranda from and with regard thereto as may be desired;
17.01.15 no provision of this Trust Deed shall require the Trustee to expend or risk the Trustee’s own funds or otherwise incur any financial liability in the performance of any of the Trustee’s duties hereunder, or in the exercise of any of the Trustee’s rights or powers, if the Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to the Trusteediversified.
17.02 Nothing in this clause 17.01 shall exempt the Trustee from or indemnify it against any liability for breach of trust or any liability which by virtue of any rule of law would otherwise attach to it in respect of any negligence, default, breach of duty or breach of trust of which it may be guilty in relation to its duties under this Trust Deed.
Appears in 1 contract
Samples: Trust Deed
