Common use of Voting; Notice to Depositor Clause in Contracts

Voting; Notice to Depositor. Subject to the following two paragraphs, in the event that the Trustee shall have been notified at any time of any action to be taken or proposed to be taken by at least a legally required number of holders of any Securities deposited in a Trust, the Trustee shall take such action or omit from taking any action, as appropriate, so as to cause the Securities to be voted as closely as possible in the same manner and the same general proportion as are the Securities held by owners other than such Trust. The Trustee may employ an agent to cause the Securities to be voted as provided in the preceding sentence and the cost of such agent shall be an expense reimbursable to the Trustee from the Income or Capital Accounts as provided in Section 6.04. With respect to any Trust which is a widely held fixed investment trust as defined in Treas. Reg. Section 1.671 5(b)(22), in the event that an offer by the issuer of any of the Securities or any other party shall be made to issue new securities, or to exchange securities, for Trust Securities, the Trustee shall reject such offer. However, should any issuance, exchange or substitution be effected notwithstanding such rejection or without an initial offer, any securities, cash and/or property received shall be deposited hereunder and shall be promptly sold, if securities or property, by the Trustee pursuant to the Depositor’s direction, unless the Depositor advises the Trustee to keep such securities or property. With respect to any Trust which intends to qualify as a regulated investment company, as set forth in the Prospectus for such Trust, in the event that an offer by the issuer of any of the Securities or any other party shall be made to issue new securities, or to exchange securities, for Trust Securities, the Trustee will, at the direction of the Depositor, vote for or against any offer for new or exchanged securities or property in exchange for a Trust Security. Should any issuance, exchange or substitution be effected, any securities, cash and/or property received shall be deposited hereunder and shall be promptly sold, if securities or property, by the Trustee pursuant to the Depositor’s direction, unless the Depositor advises the Trustee to keep such securities or property. The Depositor may rely on the Portfolio Supervisor in so advising the Trustee. The cash received in such exchange and cash proceeds of any such sales shall be distributed to Unit holders on the next distribution date in the manner set forth in Section 3.05 regarding distributions from the Capital Account. The Trustee shall not be liable or responsible in any way for depreciation or loss incurred by reason of any such sale. Subject to the preceding paragraph, with respect to any Trust which intends to qualify as a regulated investment company, as set forth in the Prospectus for such Trust, and holds shares of a closed-end fund, exchange traded fund or other investment fund (a “Deposited Fund”), the Trustee will provide the Depositor access to the information provided to the Trustee regarding matters on which voting or other action is solicited or required with respect to shares of a Deposited Fund. If the Depositor determines that the voting or response to such matters should not be done in accordance with the first paragraph of this Section, the Depositor will direct the Trustee in writing as to the manner in which the voting or response should be made not later than ten Business Days prior to due date for the vote or response. Unless prohibited by law or statute, the Trustee will vote or respond as directed by the Depositor. In providing such direction, the Depositor will take into account any applicable agreement and all restrictions or limitations imposed by applicable law or statute and will cause the shares to be voted, or other response made, in the best interests of the Unit holders. The Depositor is authorized to enter into an agreement with a Deposited Fund with respect to the manner in which the shares of such fund will be voted or otherwise regarding a Trust’s investment in such Deposited Fund. The Trustee shall have no responsibility or liability for any loss or liability resulting from any vote or other response made pursuant to the Depositor’s direction or otherwise pursuant to this Section in the absence of the Depositor’s direction."

Voting; Notice to Depositor. Subject to the following two paragraphsparagraph, in the event that the Trustee Custodian, at any time, shall have been notified received actual notice of any action to be taken or proposed to be taken by holders of the Securities (including but not limited to the making of any demand, direction, request, giving of any notice, consent or waiver or the voting with respect to any matter relating to the Securities), the Custodian shall promptly notify the Depositor and shall thereupon take such action or refrain from taking any action as the Depositor shall in writing direct; provided, however, that if the Depositor shall not within five Business Days of the giving of such notice to the Depositor direct the Custodian to take or refrain from taking any action, the Custodian shall take such reasonable action or refrain from taking any action so that the Securities are voted as closely as possible in the same manner and the same general proportion, with respect to all issues, as are shares of such Securities that are held by owners other than the Trust. Notwithstanding the foregoing, in the event that the Custodian shall have received actual notice at any time of any action to be taken or proposed to be taken by at least a legally required number of holders of Fund Shares (including but not limited to the making of any Securities deposited in a Trustdemand, direction, request, giving of any notice, consent or waiver or the voting with respect to any matter relating to the Fund Shares), the Trustee Custodian shall promptly notify the Depositor and shall thereupon take such reasonable action or omit refrain from taking any action, as appropriate, action with respect to the Fund Shares so as to cause that the Securities to be Fund Shares are voted as closely as possible in the same manner and the same general proportion proportion, with respect to all issues, as are the Securities shares of such Fund Shares that are held by owners other than such the Trust. The Trustee Custodian may employ an agent to cause the Securities Securities, including Fund Shares, to be voted as provided in the preceding sentence this paragraph and the cost of such agent shall be an expense reimbursable to the Trustee Custodian from the Series Income or Series Capital Accounts as provided in Section 6.047.05. With respect to any Trust which is a widely held fixed investment trust as defined in Treas. Reg. Section 1.671 5(b)(22), in In the event that an offer by the issuer of any of the Securities or any other party shall be made to issue new securities, or to exchange securitiessecurities for Securities, including an exchange or substitution pursuant to a plan for Trust the refunding or refinancing of Securities, the Trustee Custodian shall reject such offer. However, should any issuance, exchange or substitution be effected notwithstanding such rejection or without an initial offer, any securities, cash and/or property received shall be deposited hereunder and shall be promptly sold, if securities or property, by the Trustee pursuant to the Depositor’s direction, unless the Depositor advises the Trustee to keep such securities or property. With respect to any Trust which intends to qualify as a regulated investment company, as set forth in the Prospectus for such Trust, in the event that an offer by the issuer of any of the Securities or any other party shall be made to issue new securities, or to exchange securities, for Trust Securities, the Trustee will, at the direction of the DepositorSupervisor, on behalf of the Series of Trust, process the vote for against such offer in the case of a Series that is a Grantor Trust or against accept or reject any such offer for new in the case of a Series of Trust that is a RIC. Notwithstanding the forgoing, if (i) the issuer is in default with respect to such Securities or exchanged securities (ii) in the opinion of the Supervisor, given in writing to the Custodian, there is a reasonable likelihood that the issuer will default with respect to such Securities in the reasonably foreseeable future, the Supervisor shall instruct the Custodian in writing to accept or property in exchange for a Trust Securityreject such offer or take any other action with respect thereto as the Supervisor may deem proper on behalf of the Series of Trust. Should If any such issuance, exchange or substitution be effected, any securities, cash and/or property received shall be deposited hereunder and shall be promptly sold, if securities or property, by the Trustee pursuant to Depositor for the Depositor’s directionaccount of the related Series of Trust, unless the Depositor Supervisor advises the Trustee Custodian to keep such securities securities, cash or property. The Depositor may rely on With respect to a Series of Trust which qualifies as a RIC and is an Index Trust, the Portfolio Supervisor in so advising the Trustee. The cash received in such exchange and cash proceeds of any such sales shall be reinvested by the Depositor, to the extent practicable, into any security which replaces such Security as a component of its Target Index or, if no security so replaces such Security, into any other Securities which are under-represented in the Index Trust’s portfolio in comparison to their weighting in its Target Index, and, to the extent not so reinvested, shall be distributed pursuant to the following sentence. With respect to all other Series of Trusts, the cash received in such exchange and cash proceeds of any such sales shall be credited to the Series Capital Account and distributed to Unit holders on the next distribution date Unitholders in the manner set forth in Section 3.05 regarding distributions from 3.06. Without limiting the Capital Account. The Trustee shall not be liable or responsible generality of the foregoing, in any way for depreciation or loss incurred by reason of any such sale. Subject to the preceding paragraph, determining whether reinvestment is practicable with respect to any Trust which intends to qualify as a regulated investment company, as set forth in the Prospectus for such an Index Trust, and holds shares the Depositor may, but is not obligated to, specifically consider the ability of the Index Trust to reinvest such proceeds into round lots of a closed-end fund, exchange traded fund or other investment fund (a “Deposited Fund”), the Trustee will provide Security. Neither the Depositor access nor the Custodian shall be liable to the information provided any person for any action or failure to the Trustee regarding matters on which voting or other take action is solicited or required with respect to shares of this Section 3.12 other than a Deposited Fund. If failure by the Depositor determines that Custodian to discharge its duty to notify the voting or response to such matters should not be done Depositor, in accordance with the first paragraph its standard of care, as provided herein. Whenever new securities or property is received and retained by a Series of Trust pursuant to this SectionSection 3.12, the Depositor will direct Transfer Agent shall provide notice of such acquisition in the Trustee in writing as to the manner in which the voting or response should be made not later than ten Business Days annual report for such Series of Trust unless prior to due date for the vote or response. Unless prohibited by law or statute, the Trustee will vote or respond as notice is directed by the Depositor. In providing such direction, the Depositor will take into account any applicable agreement and all restrictions or limitations imposed by applicable law or statute and will cause the shares to be voted, or other response made, in the best interests of the Unit holders. The Depositor is authorized to enter into an agreement with a Deposited Fund with respect to the manner in which the shares of such fund will be voted or otherwise regarding a Trust’s investment in such Deposited Fund. The Trustee shall have no responsibility or liability for any loss or liability resulting from any vote or other response made pursuant to the Depositor’s direction or otherwise pursuant to this Section in the absence of the Depositor’s direction."

Voting; Notice to Depositor. Subject to the following two paragraphs, in the event that the Trustee shall have been notified at any time of any action to be taken or proposed to be taken by at least a legally required number of holders of any Securities deposited in a Trust, the Trustee shall take such action or omit from taking any action, as appropriate, so as to cause the Securities to be voted as closely as possible in the same manner and the same general proportion as are the Securities held by owners other than such Trust. The Trustee may employ an agent to cause the Securities to be voted as provided in the preceding sentence and the cost of such agent shall be an expense reimbursable to the Trustee from the Income or Capital Accounts as provided in Section 6.04. With respect to any Trust which is a widely held fixed investment trust as defined in Treas. Reg. Section 1.671 5(b)(22), in the event that an offer by the issuer of any of the Securities or any other party shall be made to issue new securities, or to exchange securities, for Trust Securities, the Trustee shall reject such offer. However, should any issuance, exchange or substitution be effected notwithstanding such rejection or without an initial offer, any securities, cash and/or property received shall be deposited hereunder and shall be promptly sold, if securities or property, by the Trustee pursuant to the Depositor’s direction, unless the Depositor advises the Trustee to keep such securities or property. With respect to any Trust which intends to qualify as a regulated investment company, as set forth in the Prospectus for such Trust, in the event that an offer by the issuer of any of the Securities or any other party shall be made to issue new securities, or to exchange securities, for Trust Securities, the Trustee will, at the direction of the Depositor, vote for or against any offer for new or exchanged securities or property in exchange for a Trust Security. Should any issuance, exchange or substitution be effected, any securities, cash and/or property received shall be deposited hereunder and shall be promptly sold, if securities or property, by the Trustee pursuant to the Depositor’s direction, unless the Depositor advises the Trustee to keep such securities or property. The Depositor may rely on the Portfolio Supervisor in so advising the Trustee. The cash received in such exchange and cash proceeds of any such sales shall be distributed to Unit holders on the next distribution date in the manner set forth in Section 3.05 regarding distributions from the Capital Account. The Trustee shall not be liable or responsible in any way for depreciation or loss incurred by reason of any such sale. Subject to the preceding paragraph, with respect to any Trust which intends to qualify as a regulated investment company, as set forth in the Prospectus for such Trust, and holds shares of a closed-end fund, exchange traded fund or other investment fund (a “"Deposited Fund”), the Trustee will provide the Depositor access to the information provided to the Trustee regarding matters on which voting or other action is solicited or required with respect to shares of a Deposited Fund. If the Depositor determines that the voting or response to such matters should not be done in accordance with the first paragraph of this Section, the Depositor will direct the Trustee in writing as to the manner in which the voting or response should be made not later than ten Business Days prior to due date for the vote or response. Unless prohibited by law or statute, the Trustee will vote or respond as directed by the Depositor. In providing such direction, the Depositor will take into account any applicable agreement and all restrictions or limitations imposed by applicable law or statute and will cause the shares to be voted, or other response made, in the best interests of the Unit holders. The Depositor is authorized to enter into an agreement with a Deposited Fund with respect to the manner in which the shares of such fund will be voted or otherwise regarding a Trust’s investment in such Deposited Fund. The Trustee shall have no responsibility or liability for any loss or liability resulting from any vote or other response made pursuant to the Depositor’s direction or otherwise pursuant to this Section in the absence of the Depositor’s direction."