Appears in 122 contracts

Samples: Custody Agreement (Federated Hermes Fixed Income Securities, Inc.), Custody Agreement (Federated Hermes Equity Funds), Custody Agreement (Federated Hermes Adviser Series)

CONCERNING CUSTODIAN. ~~(a) The Custodian shall be held to a standard of reasonable care in carrying out the provisions of this Agreement; provided, however, that~~ For its services hereunder the Custodian shall be ~~held~~ paid such compensation at such times as may from time to ~~different standard of care of imposed~~ time be agreed on in writing by ~~any other provision of this Agreement or imposed upon~~ the parties hereto in a Custodian ~~by any applicable law or regulation, which by its terms cannot be contractually modified or waived~~Fee Agreement. ~~Except as otherwise expressly provided herein,~~ The Custodian shall not be liable for any ~~costs~~action taken in good faith upon any custodian order or facsimile herein described or certified copy of any resolution of the Board of Directors or of the Executive Committee of the Board of Directors of the Corporation, and may rely on the genuineness of any such document which it may in good faith believe to have been validly executed. The Corporation agrees to indemnify and hold harmless Custodian and its nominee from all taxes, charges, expenses, ~~damages~~assessments, claims and liabilities (including counsel fees) incurred or ~~claims, including attorneys' and accountants' fees (collectively, “Losses”), incurred by~~ assessed against it or ~~asserted against~~ its nominee in connection with the ~~Fund~~performance of this Agreement, except ~~those Losses arising out of~~ such as may arise from the Custodian's or its nominee's own ~~negligence~~ negligent action, negligent failure to act or willful misconduct. Custodian ~~shall have no liability whatsoever~~ is authorized to charge any account of the Corporation for such items. In the ~~action or inaction~~ event of any ~~Depositories~~ advance of cash for any purpose made by Custodian resulting from orders or ~~of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result~~ instructions of the Custodian' s failure to fulfill its duties hereunder. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any Subcustodian (other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's sole responsibility and liability to the Fund shall be limited to amounts so received from such Subcustodian ( exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to the Fund or any third party for special, indirect or consequential damagesCorporation, or ~~lost profits~~ in the event that Custodian or ~~loss of business~~its nominee shall incur or be assessed any taxes, ~~arising~~ charges, expenses, assessments, claims or liabilities in connection with the performance of this Agreement, ~~nor shall Custodian~~ except such as may arise from its or ~~any Subcustodian be liable: (i) for acting in accordance with any Certificate~~ its nominee's own negligent action, negligent failure to act or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (yii) for the insolvency of any Subcustodian (other than a BNY Affiliate)willful misconduct, any ~~Depository, or, except to the extent such action or inaction is a direct result of the Custodian's failure to fulfill its duties hereunder,~~ property at any Foreign Depository; or (yiii)l for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or event and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be time held for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's own negligence or willful misconduct. This indemnity Corporation shall be security therefor. The Custodian shall maintain a ~~continuing obligation~~ standard of ~~the Fund, its successors and assigns, notwithstanding the termination~~ care equivalent to that which would be required of ~~this Agreement. 2. Without limiting the generality of the foregoing, Custodian sep be under no obligation to inquire into,~~ a bailee for hire and shall not be liable ~~for: (a) Any Losses incurred~~ for any loss or damage to the Corporation resulting from participation in a securities depository unless such loss or damage arises by ~~the Fund~~ reason of any negligence, misfeasance, or ~~any other person as a result~~ willful misconduct of officers or employees of the ~~receipt or acceptance of fraudulent, forged or invalid Securities~~Custodian, or ~~Securities which are otherwise not freely transferable~~ from its failure to enforce effectively such rights as it may have against any securities depository or ~~deliverable without encumbrance in~~ from use of an agent, unless such loss or damage arises by reason of any ~~relevant market; (b) The validity~~ negligence, misfeasance, or willful misconduct of officers or employees of the ~~issue of any Securities purchased, sold~~Custodian, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount from its failure to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to enforce effectively such rights as it ~~that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund~~ may have against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fundagent. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice and opinion of counsel to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as maybe applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse Custodian, at cost, for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 23 contracts

Samples: Custodian Agreement (Ids Tax Exempt Bond Fund Inc), Custodian Agreement (Ids Strategy Fund Inc), Custodian Agreement (Ids Precious Metals Fund Inc)

Appears in 22 contracts

Samples: Custody Agreement (Clough Global Equity Fund), Custody Agreement (Clarion Value Fund Master LLC), Custody Agreement (Claymore Trust)

Appears in 17 contracts

Samples: Custody Agreement (Vanguard Admiral Funds), Custody Agreement (Vanguard Trustees' Equity Fund), Custody Agreement (Vanguard CMT Funds)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held~~ exercise such good faith, reasonable care, diligence and prudence as a professional custodian would exercise under the facts and circumstances and to ~~a standard of reasonable care~~ act without negligence, fraud, bad faith, or willful misconduct in carrying out the ~~provisions of~~ duties and obligations set forth in this Agreement~~; provided~~, ~~however, that the Custodian shall be held to different~~ unless a higher standard of care ~~of imposed~~ is required by ~~any other provision of this Agreement or imposed upon Custodian by any applicable law~~ law, rule, or regulation, in which ~~by its terms cannot be contractually modified or waived~~case such higher standard of care will apply. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against ~~the~~ a Fund, except those Losses arising out of Custodian's ’s own ~~negligence~~ negligence, bad faith or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any ~~Depositories or of any Foreign~~ Depositories, or, except ~~in each case~~ to the extent such action or inaction is a direct result of ~~the~~ Custodian~~' s~~ ’s failure to fulfill its duties hereunder, of any Foreign Depositories. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any ~~Subcustodian (other than a BNY Affiliate)~~Subcustodian, Depository, or Foreign Depository, Custodian shall take appropriate action to recover such Losses from such Subcustodian, Depository, or Foreign Depository; and with regard to a Depository or Foreign Depository or with regard to a Loss relating to the Subcustodian’s provision of sub-custody services in a market other than one listed in Schedule III hereto, Custodian's ’s sole responsibility and liability to the Fund shall be limited to amounts so received from such ~~Subcustodian (~~ Subcustodian, Depository or Foreign Depository (exclusive of costs and expenses incurred by Custodian), except to the extent that (A) Custodian’s negligence, bad faith or willful misconduct is the direct cause of such Subcustodian, Depository or Foreign Depository’s act or omission (it being agreed that Custodian’s decision to use any such Subcustodian, Depository or Foreign Depository shall not constitute negligence, bad faith or willful misconduct), or (B) a transaction or other matter between Custodian and such Subcustodian, Depository or Foreign Depository in which Custodian acts with negligence, fraud, bad faith, or willful misconduct and which is unrelated to the Fund was the cause of the loss or damage, in each of which events, Custodian shall be liable for such Losses. ~~In no~~ At a Fund’s election and to the extent practicable under the circumstances and allowable under the applicable agreement and/or the law pursuant to which such agreement is construed, a Fund shall be subrogated on behalf of its Series to the rights of Custodian with respect to any claims against a Depository or Foreign Depository or against a Subcustodian with respect to the provision of sub-custody services in a market other than one listed in Schedule III hereto as a consequence of any Losses if and to the extent that such Series has not been made whole for any Losses within a reasonable period of time by such Subcustodian, Depository or Foreign Depository. Upon the occurrence of any event that causes or may cause any Losses to a Fund, Custodian shall (i) promptly notify the Fund of the occurrence of such event and (ii) take all reasonable steps under the circumstances to mitigate the effects of such event and to avoid continuing harm to the Fund. (b) Provided Custodian’s actions or omissions are without gross negligence, fraudulent conduct, bad faith, or willful misconduct, Custodian shall not be liable to ~~the~~ a Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement. In addition, neither Custodian nor ~~shall Custodian or~~ any Subcustodian shall be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions requiring authentication codes if such Instructions have authentication codes without reviewing the same; (iii) ~~for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00~~ for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section ~~2(i~~3(i) of Article II hereof; (yiv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (yiiv) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of ~~the~~ Custodian's ’s failure to fulfill its duties Schedule II-15 hereunder, any Foreign Depository; or (~~yiii)l~~ vi) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the ~~account~~ Account of the Fund, and Custodian may treat any ~~account~~ Account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. Provided that Custodian shall maintain an information security program as set forth in Article III, Section 13, and business continuation and disaster recovery procedures as set forth in Article III, Section 14, Custodian shall not be liable for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes, or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services (“Force Majeure Event”). Custodian shall endeavor to promptly notify the Funds when it becomes aware of any situation outlined above, but shall not be liable for a failure to do so. The Funds shall not be responsible for temporary delays in the performance of their duties and obligations hereunder and correspondingly shall not be liable for any Losses attributable to such delay in consequence of an event as described above affecting the Funds’ principal place of business operations or administration. (bc) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. With respect to Losses incurred by a Fund as a result of an action or omission of a BNY Affiliate, Custodian will be liable for such Losses to the same extent that Custodian would be liable under the Agreement if the applicable action or omission was that of Custodian. (cd) The ~~Fund agrees~~ Funds agree to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the ~~Fund~~ Funds shall not indemnify Custodian for those Losses arising out of Custodian's ’s own ~~negligence~~ negligence, bad faith or willful misconduct. This indemnity shall be a continuing obligation of each Fund, their successors and assigns, notwithstanding the ~~Fund~~termination of this Agreement. (e) Without limiting any provisions of Article III, Section 1, Custodian agrees to indemnify each Fund against and hold each Fund harmless from and against any and all direct damages sustained or incurred because of or in connection with this Agreement; provided however, that Custodian shall only indemnify the Funds for those direct damages arising out of the negligence, bad faith or willful misconduct of Custodian, or any affiliate of Custodian or any BNY Affiliate. This indemnity shall be a continuing obligation of Custodian, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable ~~for:~~for (except to the extent that either (a) or (b) involves Custodian’s negligence, bad faith or willful misconduct): (a) Any Losses incurred by ~~the~~ a Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; ; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; ; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; ; (d) The legality of the declaration or payment of any dividend or distribution by ~~the~~ a Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice and opinion of counsel to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as maybe applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse Custodian, at cost, for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 16 contracts

Samples: Custody Agreement (Vanguard Fixed Income Securities Funds), Custody Agreement (Vanguard Index Funds), Custody Agreement (Vanguard Institutional Index Funds)

Appears in 14 contracts

Samples: Custody Agreement (Dryden Municipal Bond Fund), Custody Agreement (Jennison Us Emerging Growth Fund Inc), Custody Agreement (Prudentials Gibraltar Fund)

Appears in 14 contracts

Samples: Custody Agreement (ETFis Series Trust I), Custody Agreement (ETFis Series Trust I), Custody Agreement (ETFis Series Trust I)

CONCERNING CUSTODIAN. (ai) ~~The~~ Custodian shall exercise reasonable care, prudence, and diligence and act in good faith and use all commercially reasonable efforts in the performance of its duties hereunder. Custodian shall be ~~held~~ responsible to the Trust for its own failure or the failure of any sub-custodian that it shall appoint (other than a ~~standard~~ Foreign Sub-Custodian referred to in Paragraph 27 or a sub-custodian appointed by Custodian at the specific direction of ~~reasonable care~~ the Trust) or that of its employees or agents, to perform its duties, obligations or responsibilities in ~~carrying out the provisions of~~ accordance with this Agreement~~; provided~~, ~~however~~but only to the extent that such failure results from acts or omissions that constitute willful misfeasance, ~~that~~ bad faith or negligence on the ~~Custodian shall be held to different standard~~ part of ~~care~~ Custodian, or on the part of ~~imposed by~~ its employees or agents, or reckless disregard of such duties, obligations and responsibilities. (ii) Without limiting the generality of the foregoing or any other provision of this ~~Agreement or imposed upon Custodian by any applicable law or regulation~~Agreement, which by its terms cannot be contractually modified or waived. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' and accountants' fees (collectively, “Losses”), incurred by or asserted against the Fund, except those Losses arising out of Custodian's own negligence or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result of the Custodian' s failure to fulfill its duties hereunder. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any Subcustodian (other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's sole responsibility and liability to the Fund shall be limited to amounts so received from such Subcustodian ( exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to the Fund or any third party nor, except as otherwise provided in this subparagraph for special, indirect or consequential ~~damages,~~ damages or lost profits or loss of business, arising under or in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation even if previously informed of the ~~banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability~~ possibility of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software such damages and ~~hardware) services; (yii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result~~ regardless of the ~~Custodian's failure to fulfill its duties hereunder, any Foreign Depository; or (yiii)l for any Losses arising from the applicability~~ form of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or event and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's own negligence or willful misconduct. This indemnity shall be a continuing obligation of the Fund, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian sep be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3action. Custodian may, with respect to questions of law ~~specifically regarding an Account~~arising under any FCM Agreement, apply for and obtain the advice and opinion of counsel to the ~~independent trustees~~ Trust at the expense of ~~a Fund~~ the Trust, or ~~other~~ of its own counsel ~~that is mutually agreed upon by the Funds and the Custodian~~ at its own expense, and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such ~~advice. 4~~advice or opinion. Custodian shall be ~~under no obligation~~ liable to ~~take action to collect~~ the Trust for any ~~amount payable~~ loss or damage resulting from the use of the Book-Entry System or any Securities Depository arising by reason of any negligence or willful misconduct on ~~Securities in default,~~ the part of Custodian or ~~if payment is refused after due demand and presentment~~any of its employees or agents. ~~5. Custodian~~ (iii) Custodian's liability pursuant to the last sentence of subparagraph (a)(i) shall ~~have no duty or responsibility to inquire into~~include, ~~make recommendations~~but not be limited to, ~~supervise~~reimbursing the Trust for court-ordered damage awards, ~~or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the~~ fines, penalties, and judicially-approved settlements (and attorney's fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as maybe applicable. The Fund shall reimburse Custodian for all costs associated with the conversion disbursements relating thereto) arising out of ~~the Fund's Securities hereunder and the transfer of Securities and records kept~~ or in connection with ~~this Agreement. The Fund shall also reimburse Custodian~~the conduct giving rise to such liability. (iv) If the Trust receives notice of the commencement of any action, ~~at cost~~suit, or proceeding (an "Action"), or notice that any Action may be commenced, for ~~out-of-pocket expenses~~ which ~~are a normal incident~~ Custodian may be liable to the Trust pursuant to this Paragraph 28, the Trust shall give notice to Custodian of the ~~services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations~~ commencement of the ~~Fund~~ Action or of the possibility that an Action will be commenced. Any omission to ~~Custodian. In addition~~ notify Custodian will not relieve Custodian from any liability which it may have under this Paragraph, except to the extent the failure to notify Custodian prejudices the rights of Custodian. Custodian ~~under applicable law~~ will be entitled at its sole expense and ~~other agreements~~liability, ~~at any time when the Fund shall not have honored any of its obligations~~ to ~~Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations~~ exercise full control of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.defense,

Appears in 12 contracts

Samples: Custody Agreement (Nations Funds Trust), Custody Agreement (Nations Funds Trust), Custody Agreement (Nations Institutional Reserves)

Appears in 11 contracts

Samples: Custody Agreement (Cortland Trust Inc), Custody Agreement (New York Daily Tax Free Income Fund Inc), Custody Agreement (Cortland Trust Inc)

Appears in 10 contracts

Samples: Custody Agreement (Hancock John California Tax Free Income Fund), Custody Agreement (Hancock John Patriot Premium Dividend Fund Ii), Custody Agreement (Hancock John Sovereign Bond Fund)

Appears in 10 contracts

Samples: Custody Agreement (FundVantage Trust), Custody Agreement (Bennett Global Funds), Custody Agreement (TXF Funds Inc)

Appears in 10 contracts

Samples: Custody Agreement (BlackRock Enhanced Equity Dividend Trust), Custody Agreement (BlackRock Real Asset Equity Trust), Custody Agreement (BlackRock Enhanced Dividend Achievers Trust)

Appears in 9 contracts

Samples: Custody Agreement (Guggenheim Energy & Income Fund), Custody Agreement (Guggenheim Credit Allocation Fund), Custody Agreement (Guggenheim Credit Allocation Fund)

Appears in 6 contracts

Samples: Custody Agreement (Fiduciary/Claymore Dynamic Equity Fund), Custody Agreement (Fiduciary/Claymore MLP Opportunity Fund), Custody Agreement (Williams Capital Management Trust)

Appears in 6 contracts

Samples: Custody Agreement (BlackRock Science & Technology Trust), Custody Agreement (BlackRock Resources & Commodities Strategy Trust), Custody Agreement (BlackRock Utility & Infrastructure Trust)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held to~~ exercise such good faith, reasonable care, diligence, and prudence as a ~~standard of reasonable care~~ professional custodian for securities would exercise in carrying out ~~the provisions~~ all of this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waivedthese duties and obligations. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' and accountants' fees (collectively, “"Losses”"), incurred by or asserted against the Fund, except those Losses arising out of Custodian's own negligence or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any ~~Depositories or of any Foreign~~ Depositories, or, except ~~in each case~~ to the extent such action or inaction is a direct result of the Custodian~~' s~~ 's failure to fulfill its duties hereunder, of any Foreign Depositories. With respect to any Losses incurred by the Fund as a result of the acts or ~~any~~ failures to act by a Subcustodian listed on part 1 of Schedule 1, Custodian shall be liable to the Fund for such Losses, but only to the extent such Losses arise out of or are caused by acts or failure to act by such Subcustodian for which it is liable under the terms of its agreement with Custodian and the laws governing such agreement. With respect to any Losses incurred by the Fund as a result of the acts or omission of a Subcustodian ~~(other than a BNY Affiliate)~~either not listed on part 1 of Schedule 1 or listed on part 2 of Schedule 1, Custodian shall take appropriate action to recover such ~~Losses from such Subcustodian;~~ Losses, and Custodian's ~~sole responsibility and~~ liability ~~to the Fund~~ shall be limited to ~~amounts so received from such Subcustodian ( exclusive~~ the amount recovered net of costs and ~~expenses incurred by Custodian)~~expenses. In no event shall Custodian be liable to the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall ~~Custodian~~ BNY or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 iv) for conclusively presuming that all disbursements of cash directed by the ~~Fund, whether~~ Fund by ~~a Certificate, an Oral Instruction, or~~ an Instruction, are in accordance with Section ~~2(i~~2(j) of Article II hereof; (yv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yivi) for any Losses due to forces beyond the reasonable control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, ~~communications~~ non-internal communication services, but only to the extent beyond Custodian's reasonable control, and, but only if Custodian is maintaining such back-up system(s) and disaster recovery plan(s) as are required by its regulators and all laws applicable to Custodian, interruption, loss or malfunction of internal communication services or of computer (software ~~and~~ or hardware) services; it being understood that Custodian shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances; (~~yii~~vii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ viii) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall in any way discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's performance hereunder, including reasonable fees and expenses of ~~counsel incurred by Custodian in a successful defense of claims by the Fund;~~ counsel, provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's own negligence or willful misconduct or for any Losses which constitutes indirect, special, or consequential damages or lost profits or loss of business. Custodian agrees to indemnify the Fund and hold the Fund harmless from and against any and all Losses, including reasonable fees ad expenses of counsel, sustained or incurred by or asserted against the Fund arising out of the Custodian's negligence or willful misconduct, provided, however, that the Custodian shall not indemnify the Fund for nor be liable for any Losses which constitute indirect, special, or consequential damages or lost profits or loss of business. This indemnity shall be a continuing obligation of the ~~Fund~~Fund and the custodian, ~~its~~ their successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. , In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's ~~receiptor~~ receipt or non-receipt of any such payment; except that Custodian shall notify the Fund of any difference between any amount the Fund has specified in a Certificate or Oral Instructions as the amount to be received and the amount custodian actually receives; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of the Fund and specifically allocated to a ~~Fund~~ Series are such as properly may be held by the Fund or such Series under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as ~~maybe~~ may be applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse ~~Custodian, at cost,~~ Custodian for out-~~of-~~of pocket expenses , subject to approval of the Fund, which are a normal incident of the services provided hereunder. 7. With Instructions from an Authorized Person or Oral Instructions, Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the ~~Fund~~ Series to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the ~~Fund~~Series, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency ~~Unit. Any such asset of, or obligation to,~~ Unit and shall notify the Fund ~~may be transferred to Custodian and any BNY Affiliate in order to effect the above rights~~whenever it has exercised such right. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not ~~received or that a contrary Certificate or contrary Instructions are~~ received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J I hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, all regulatory authorities whose statutes, laws, rules and regulations are applicable to the Fund shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by ~~the~~ Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 1112. Custodian ~~shall have no duties or responsibilities whatsoever except such duties~~ will also provide those custody related services not already described above that are included in the Service Guidelines established and ~~responsibilities~~ agreed between the parties as ~~are specifically set forth in this Agreement,~~ the same may be revised from time to time by mutual agreement of the parties hereto. The Service Guidelines will also govern the timeliness and ~~no covenant or obligation shall be implied against Custodian in connection with this Agreement~~performance standards for custody related services where specified therein.

Appears in 6 contracts

Samples: Custody Agreement (Ing Vp Emerging Markets Fund Inc), Custody Agreement (Uslico Series Fund/Va/), Custody Agreement (Ing Vp Bond Portfolio)

Appears in 6 contracts

Samples: Custody Agreement (Nations Annuity Trust), Custody Agreement (Nations Master Investment Trust), Custody Agreement (Nations Annuity Trust)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held~~ exercise such good faith, reasonable care, diligence and prudence as a professional custodian would exercise under the facts and circumstances and to ~~a standard of reasonable care~~ act without negligence, fraud, bad faith, or willful misconduct in carrying out the ~~provisions of~~ duties and obligations set forth in this Agreement~~; provided~~, ~~however, that the Custodian shall be held to different~~ unless a higher standard of care ~~of imposed~~ is required by ~~any other provision of this Agreement or imposed upon Custodian by any applicable law~~ law, rule, or regulation, in which ~~by its terms cannot be contractually modified or waived~~case such higher standard of care will apply. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against ~~the~~ a Fund, except those Losses arising out of Custodian's ’s own ~~negligence~~ negligence, bad faith or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any ~~Depositories or of any Foreign~~ Depositories, or, except ~~in each case~~ to the extent such action or inaction is a direct result of ~~the~~ Custodian~~' s~~ ’s failure to fulfill its duties hereunder, of any Foreign Depositories. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any ~~Subcustodian (other than a BNY Affiliate)~~Subcustodian, Depository, or Foreign Depository, Custodian shall take appropriate action to recover such Losses from such Subcustodian, Depository, or Foreign Depository; and with regard to a Depository or Foreign Depository or with regard to a Loss relating to the Subcustodian’s provision of sub-custody services in a market other than one listed in Schedule III hereto, Custodian's ’s sole responsibility and liability to the Fund shall be limited to amounts so received from such ~~Subcustodian (~~ Subcustodian, Depository or Foreign Depository (exclusive of costs and expenses incurred by Custodian), except to the extent that (A) Custodian’s negligence, bad faith or willful misconduct is the direct cause of such Subcustodian, Depository or Foreign Depository’s act or omission (it being agreed that Custodian’s decision to use any such Subcustodian, Depository or Foreign Depository shall not constitute negligence, bad faith or willful misconduct), or (B) a transaction or other matter between Custodian and such Subcustodian, Depository or Foreign Depository in which Custodian acts with negligence, fraud, bad faith, or willful misconduct and which is unrelated to the Fund was the cause of the loss or damage, in each of which events, Custodian shall be liable for such Losses. ~~In no~~ At a Fund’s election and to the extent practicable under the circumstances and allowable under the applicable agreement and/or the law pursuant to which such agreement is construed, a Fund shall be subrogated on behalf of its Series to the rights of Custodian with respect to any claims against a Depository or Foreign Depository or against a Subcustodian with respect to the provision of sub-custody services in a market other than one listed in Schedule III hereto as a consequence of any Losses if and to the extent that such Series has not been made whole for any Losses within a reasonable period of time by such Subcustodian, Depository or Foreign Depository. Upon the occurrence of any event that causes or may cause any Losses to a Fund, Custodian shall (i) promptly notify the Fund of the occurrence of such event and (ii) take all reasonable steps under the circumstances to mitigate the effects of such event and to avoid continuing harm to the Fund. (b) Provided Custodian’s actions or omissions are without gross negligence, fraudulent conduct, bad faith, or willful misconduct, Custodian shall not be liable to ~~the~~ a Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement. In addition, neither Custodian nor ~~shall Custodian or~~ any Subcustodian shall be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions requiring authentication codes if such Instructions have authentication codes without reviewing the same; (iii) ~~for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00~~ for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section ~~2(i~~3(i) of Article II hereof; (yiv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (yiiv) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of ~~the~~ Custodian's ’s failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ vi) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the ~~account~~ Account of the Fund, and Custodian may treat any ~~account~~ Account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. Provided that Custodian shall maintain an information security program as set forth in Article III, Section 13, and business continuation and disaster recovery procedures as set forth in Article III, Section 14, Custodian shall not be liable for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes, or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services (“Force Majeure Event”). Custodian shall endeavor to promptly notify the Funds when it becomes aware of any situation outlined above, but shall not be liable for a failure to do so. The Funds shall not be responsible for temporary delays in the performance of their duties and obligations hereunder and correspondingly shall not be liable for any Losses attributable to such delay in consequence of an event as described above affecting the Funds’ principal place of business operations or administration. (bc) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. With respect to Losses incurred by a Fund as a result of an action or omission of a BNY Affiliate, Custodian will be liable for such Losses to the same extent that Custodian would be liable under the Agreement if the applicable action or omission was that of Custodian. (cd) The ~~Fund agrees~~ Funds agree to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the ~~Fund~~ Funds shall not indemnify Custodian for those Losses arising out of Custodian's ’s own ~~negligence~~ negligence, bad faith or willful misconduct. This indemnity shall be a continuing obligation of each Fund, their successors and assigns, notwithstanding the ~~Fund~~termination of this Agreement. (e) Without limiting any provisions of Article III, Section 1, Xxxxxxxxx agrees to indemnify each Fund against and hold each Fund harmless from and against any and all direct damages sustained or incurred because of or in connection with this Agreement; provided however, that Custodian shall only indemnify the Funds for those direct damages arising out of the negligence, bad faith or willful misconduct of Custodian, or any affiliate of Custodian or any BNY Affiliate. This indemnity shall be a continuing obligation of Custodian, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable ~~for:~~for (except to the extent that either (a) or (b) involves Custodian’s negligence, bad faith or willful misconduct): (a) Any Losses incurred by ~~the~~ a Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by ~~the~~ a Fund; (e) The legality of any borrowing by ~~the~~ a Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate ~~security~~ collateral for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of ~~money~~ cash and/or Securities held in any Special Account in connection with transactions by ~~the~~ a Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian~~'s receiptor~~ ’s receipt or non-receipt of any such ~~payment~~payment except that Custodian shall as promptly as practical under the circumstances notify a Fund of any difference between the amount the Fund has specified in a Certificate or Instructions as the amount to be received and the amount Custodian actually receives or does not receive; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund and specifically allocated to a Series are such as properly may be held by the Fund or such Series under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by ~~the~~ a Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ at its own expense (without limiting Article VIII, Section 1(d)) and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such ~~advice~~advice provided that Custodian has selected and retained such counsel using reasonable care and any action taken pursuant to the advice must be consistent with Custodian’s responsibilities under this Agreement. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment, unless and until (i) it shall be directed to take such action by a Certificate or Instructions and (ii) it shall be assured to its satisfaction of reimbursement of its reasonable costs and expenses in connection with any such action except that Custodian shall as promptly as practical under the circumstances notify the affected Fund in writing of such default or refusal to pay. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. ~~The~~ Each Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at ~~Custodian's standard~~ agreed rates for such services as ~~maybe~~ may be applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse Custodian, at cost, for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. In addition to, and not as a limitation of, Xxxxxxxxx’s rights under Section 1 of Article V, Custodian has the right to debit ~~any~~ a cash account in advance for any amount payable by ~~the~~ a Fund in connection with any and all obligations of the Fund to Custodian~~. In addition to the rights of~~ , provided Custodian ~~under applicable law and other agreements, at any time when~~ has given the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.at least two

Appears in 5 contracts

Samples: Custody Agreement (Vanguard CMT Funds), Custody Agreement (Vanguard World Fund), Custody Agreement (Vanguard Admiral Funds)

Appears in 5 contracts

Samples: Custody Agreement (Vanguard Trustees' Equity Fund), Custody Agreement (Vanguard Fenway Funds), Custody Agreement (Vanguard Money Market Reserves)

CONCERNING CUSTODIAN. (ai) ~~The~~ Custodian shall exercise reasonable care, prudence, and diligence and act in good faith and use all commercially reasonable efforts in the performance of its duties hereunder. Custodian shall be ~~held~~ responsible to the Trust for its own failure or the failure of any sub-custodian that it shall appoint (other than a ~~standard~~ Foreign Sub-Custodian referred to in Paragraph 27 or a sub-custodian appointed by Custodian at the specific direction of ~~reasonable care~~ the Trust) or that of its employees or agents, to perform its duties, obligations or responsibilities in ~~carrying out the provisions of~~ accordance with this Agreement~~; provided~~, ~~however~~but only to the extent that such failure results from acts or omissions that constitute willful misfeasance, ~~that~~ bad faith or negligence on the ~~Custodian shall be held to different standard~~ part of ~~care~~ Custodian, or on the part of ~~imposed by~~ its employees or agents, or reckless disregard of such duties, obligations and responsibilities. (ii) Without limiting the generality of the foregoing or any other provision of this ~~Agreement or imposed upon Custodian by any applicable law or regulation~~Agreement, which by its terms cannot be contractually modified or waived. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' and accountants' fees (collectively, “Losses”), incurred by or asserted against the Fund, except those Losses arising out of Custodian's own negligence or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result of the Custodian' s failure to fulfill its duties hereunder. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any Subcustodian (other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's sole responsibility and liability to the Fund shall be limited to amounts so received from such Subcustodian ( exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to the Fund or any third party nor, except as otherwise provided in this subparagraph for special, indirect or consequential ~~damages,~~ damages or lost profits or loss of business, arising under or in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation even if previously informed of the ~~banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability~~ possibility of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software such damages and ~~hardware) services; (yii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result~~ regardless of the ~~Custodian's failure to fulfill its duties hereunder, any Foreign Depository; or (yiii)l for any Losses arising from the applicability~~ form of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or event and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's own negligence or willful misconduct. This indemnity shall be a continuing obligation of the Fund, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian sep be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3action. Custodian may, with respect to questions of law ~~specifically regarding an Account~~arising under any FCM Agreement, apply for and obtain the advice and opinion of counsel to the ~~independent trustees~~ Trust at the expense of ~~a Fund~~ the Trust, or ~~other~~ of its own counsel ~~that is mutually agreed upon by the Funds and the Custodian~~ at its own expense, and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such ~~advice. 4~~advice or opinion. Custodian shall be ~~under no obligation~~ liable to ~~take action to collect~~ the Trust for any ~~amount payable~~ loss or damage resulting from the use of the Book-Entry System or any Securities Depository arising by reason of any negligence or willful misconduct on ~~Securities in default,~~ the part of Custodian or ~~if payment is refused after due demand and presentment~~any of its employees or agents. ~~5. Custodian~~ (iii) Custodian's liability pursuant to the last sentence of subparagraph (a)(i) shall ~~have no duty or responsibility to inquire into~~include, ~~make recommendations~~but not be limited to, ~~supervise~~reimbursing the Trust for court-ordered damage awards, ~~or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the~~ fines, penalties, and judicially-approved settlements (and attorney's fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as maybe applicable. The Fund shall reimburse Custodian for all costs associated with the conversion disbursements relating thereto) arising out of ~~the Fund's Securities hereunder and the transfer of Securities and records kept~~ or in connection with ~~this Agreement. The Fund shall also reimburse Custodian~~the conduct giving rise to such liability. (iv) If the Trust receives notice of the commencement of any action, ~~at cost~~suit, or proceeding (an "Action"), or notice that any Action may be commenced, for ~~out-of-pocket expenses~~ which ~~are a normal incident~~ Custodian may be liable to the Trust pursuant to this Paragraph 28, the Trust shall give notice to Custodian of the ~~services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations~~ commencement of the ~~Fund~~ Action or of the possibility that an Action will be commenced. Any omission to ~~Custodian. In addition~~ notify Custodian will not relieve Custodian from any liability which it may have under this Paragraph, except to the extent the failure to notify Custodian prejudices the rights of Custodian. Custodian ~~under applicable law~~ will be entitled at its sole expense and ~~other agreements~~liability, ~~at any time when the Fund shall not have honored any of its obligations~~ to ~~Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations~~ exercise full control of the ~~Fund~~defense, ~~any Securities~~ compromise or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies settlement of any such ~~books and records shall be~~ Action, provided ~~by Custodian~~ that Custodian: (1) notifies the Trust in writing of Custodian's intention to ~~the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any~~ assume such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.defense; and

Appears in 5 contracts

Samples: Custody Agreement (Nations Funds Trust), Custody Agreement (Nations Funds Trust), Custody Agreement (Nations Funds Trust)

Appears in 5 contracts

Samples: Custody Agreement (PowerShares Exchange-Traded Fund Trust II), Custody Agreement (PowerShares Exchange-Traded Fund Trust II), Custody Agreement (PowerShares Exchange-Traded Fund Trust II)

Appears in 5 contracts

Samples: Custody Agreement (Northern Lights Fund Trust), Custody Agreement (Northern Lights Fund Trust), Custody Agreement (Northern Lights Variable Trust)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held to a standard of~~ exercise such good faith, reasonable ~~care~~ care, diligence and prudence in carrying out the ~~provisions of this Agreement; provided, however, that~~ duties and obligations set forth herein as a professional custodian would exercise under the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waivedfacts and circumstances. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against the Fund, except those Losses arising out of Custodian's ’s own negligence or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result of the Custodian~~' s~~ ’s failure to fulfill its duties hereunder. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any Subcustodian (other than a ~~BNY~~ Custodian Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and ~~Custodian's sole responsibility and liability~~ Custodian shall be liable to the Fund ~~shall be limited~~ for such Losses, but only to ~~amounts so received from~~ the extent such Losses arise out of or are caused by acts or failure to act by such Subcustodian ~~( exclusive~~ for which it is liable under the terms of ~~costs~~ its agreement with Custodian and ~~expenses incurred by Custodian)~~the laws governing such agreement. In no event shall Custodian be liable to the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for ~~conclusively~~ presuming that all Instructions are given only by person(s) duly authorized; (00 iv) for ~~conclusively~~ presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (yv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yivi) for any Losses due to forces beyond the control of Custodian, including ~~without limitation strikes, work stoppages,~~ acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, but only if Custodian is maintaining such back-up systems and disaster recovery plans as set forth in Section (11) of Article III of this Agreement; (~~yii~~vii) for the insolvency of any Subcustodian (other than a ~~BNY~~ Custodian Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's ’s failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ viii) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any ~~BNY~~ Custodian Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder, provided that Custodian acts in good faith and with reasonable care, diligence and prudence in doing so. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder, and Custodian shall be liable for the acts or omissions of any Custodian Affiliate to the same extent as if it is liable for such acts or omissions under this Agreement. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's ’s own negligence or willful ~~misconduct~~misconduct or for any Losses which constitute indirect, special or consequential damages or lost profits. This indemnity shall be a continuing obligation of the Fund, its successors and assigns, notwithstanding the termination of this Agreement. (d) In the event a claim is asserted against a Fund arising out of or in connection with any action or inaction by Custodian in performing its duties in accordance with the standard of care set forth hereunder (a “Claim”), and to the extent such Fund asserts and is successful in a related claim against Custodian in which it is determined by a court or arbiter of competent jurisdiction that Custodian failed to discharge its duties in accordance with the standard of care as set forth hereunder, then Custodian shall indemnify such Fund for any and all Losses sustained or incurred as a result of such Claim. 2. Without limiting the generality of the ~~foregoing~~foregoing (provided that Custodian’s acts or omissions do not constitute bad faith, willful misconduct or a breach of any representation or warranty of Custodian in this Agreement), Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian~~'s receiptor~~ ’s receipt or non-receipt of any such payment, except that Custodian shall notify the Fund of any difference between the amount the Fund has specified in a Certificate or Oral Instructions as the amount to be received and the amount the Custodian actually receives or does not receive; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of the Fund and specifically allocated to a ~~Fund~~ Series are such as properly may be held by the Fund or such Series under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian ~~may,~~ may consult with ~~respect~~ the Fund’s counsel and may rely on advice given by the Fund’s counsel so long as Custodian provides written notification to ~~questions~~ the appropriate Fund as promptly as practical under the circumstances in advance of ~~law specifically regarding an Account, obtain~~ acting on the advice ~~and~~ or opinion of counsel to when such advice or opinion is inconsistent with the ~~independent trustees~~ terms of ~~a Fund~~ this Agreement or other ~~counsel that is mutually agreed upon~~ instructions or procedures provided by the ~~Funds and the Custodian and~~ Fund. Fund counsel, however, shall ~~be fully protected~~ have no obligation to consult with ~~respect~~ or provide advice to ~~anything done or omitted by it in good faith in conformity~~ Custodian. Custodian, at its own cost, may consult with ~~such advice~~its own counsel. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment, except that Custodian shall as promptly as practical under the circumstances notify the Fund in writing of such refusal to pay. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time in advance and such other fees and charges at Custodian's ’s standard rates for such services as ~~maybe applicable~~may be applicable and agreed to by the parties in advance. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's ’s Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse ~~Custodian, at cost,~~ Custodian for actual and disclosed out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to ~~Custodian~~Custodian provided that Custodian has notified the Fund in advance of such debit. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a ~~BNY~~ Custodian Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a ~~BNY~~ Custodian Affiliate may have to the Fund in any currency or Composite Currency ~~Unit~~Unit and Custodian shall notify the Fund whenever it has exercised such right. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any ~~BNY~~ Custodian Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received ~~or that a contrary Certificate or contrary Instructions are received~~ by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's ’s use thereof shall be subject to the Terms and Conditions attached as Appendix J I hereto. If Custodian receives Instructions which appear on their face to have been transmitted by an Authorized Person via (i) computer facsimile, ~~and Custodian shall provide user and~~ email, the Internet or other insecure electronic method, or (ii) secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys, the Fund understands and agrees that Custodian cannot determine the identity of the actual sender of such Instructions and that Custodian shall presume that such Written Instructions have been sent by an Authorized Person so long as Custodian provides authorization codes, passwords and/or authentication keys only to an Authorized ~~Person~~ Persons or ~~a person reasonably~~ persons believed by Custodian to be Authorized Persons. If the Fund elects (with Custodian’s prior consent) to transmit Instructions through an ~~Authorized Person~~on-line communications service owned or operated by a third party, the Fund agrees that Custodian shall not be responsible or liable for the reliability or availability of any such service. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the ~~Fund~~Fund and shall be surrendered to the Fund promptly upon request. Such books and records shall be prepared and maintained as required by the '‘40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's ’s normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian promptly shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, including any SAS 70 reports, and with such reports on ~~its~~ Custodian’s own system of internal accounting ~~control~~ control, including any SAS 70 reports, as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 4 contracts

Samples: Custody Agreement (Old Mutual Insurance Series Fund), Custody Agreement (Old Mutual Advisor Funds Ii), Custody Agreement (Old Mutual Advisor Funds)

Appears in 4 contracts

Samples: Custody Agreement (First Trust New Opportunities MLP & Energy Fund), Custody Agreement (First Trust MLP & Energy Income Fund), Custody Agreement (First Trust Energy Infrastructure Fund)

Appears in 4 contracts

Samples: Custody Agreement (Nations Fund Trust), Custody Agreement (Nations Fund Trust), Custody Agreement (Nations Fund Trust)

Appears in 4 contracts

Samples: Custody Agreement (New Jersey Daily Municipal Income Fund Inc), Custody Agreement (Florida Daily Municipal Income Fund), Custody Agreement (Short Term Income Fund Inc)

Appears in 4 contracts

Samples: Custody Agreement (Nations Funds Trust), Custody Agreement (Nations Funds Trust), Custody Agreement (Nations Funds Trust)

CONCERNING CUSTODIAN. ~~(a) The~~ Custodian shall ~~be held~~ exercise such good faith, reasonable care, diligence and prudence as a professional custodian would exercise under the facts and circumstances and to ~~a standard of reasonable care~~ act without negligence, fraud, bad faith, or willful misconduct in carrying out the ~~provisions of~~ duties and obligations set forth in this Agreement~~; provided~~, ~~however, that the Custodian shall be held to different~~ unless a higher standard of care ~~of imposed~~ is required by ~~any other provision of this Agreement or imposed upon Custodian by any applicable law~~ law, rule, or regulation, in which ~~by its terms cannot be contractually modified or waived~~case such higher standard of care will apply. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against ~~the~~ a Fund, except those Losses arising out of Custodian's ’s own ~~negligence~~ negligence, bad faith or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any ~~Depositories or of any Foreign~~ Depositories, or, except ~~in each case~~ to the extent such action or inaction is a direct result of ~~the~~ Custodian~~' s~~ ’s failure to fulfill its duties hereunder, of any Foreign Depositories. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any ~~Subcustodian (other than a BNY Affiliate)~~Subcustodian, Depository, or Foreign Depository, Custodian shall take appropriate action to recover such Losses from such Subcustodian, Depository, or Foreign Depository; and with regard to a Depository or Foreign Depository or with regard to a Loss relating to the Subcustodian’s provision of sub-custody services in a market other than one listed in Schedule III hereto, Custodian's ’s sole responsibility and liability to the Fund shall be limited to amounts so received from such ~~Subcustodian (~~ Subcustodian, Depository or Foreign Depository (exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (yii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent that (A) Custodian’s negligence, bad faith or willful misconduct is the direct cause of such ~~action~~ Subcustodian, Depository or ~~inaction~~ Foreign Depository’s act or omission (it being agreed that Custodian’s decision to use any such Subcustodian, Depository or Foreign Depository shall not constitute negligence, bad faith or willful misconduct), or (B) a transaction or other matter between Custodian and such Subcustodian, Depository or Foreign Depository in which Custodian acts with negligence, fraud, bad faith, or willful misconduct and which is ~~a direct result~~ unrelated to the Fund was the cause of the ~~Custodian's failure~~ loss or damage, in each of which events, Custodian shall be liable for such Losses. At a Fund’s election and to ~~fulfill~~ the extent practicable under the circumstances and allowable under the applicable agreement and/or the law pursuant to which such agreement is construed, a Fund shall be subrogated on behalf of its ~~duties hereunder,~~ Series to the rights of Custodian with respect to any claims against a Depository or Foreign ~~Depository;~~ Depository or ~~(yiii)l for~~ against a Subcustodian with respect to the provision of sub-custody services in a market other than one listed in Schedule III hereto as a consequence of any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or event if and to the extent that such Series has not been made whole for any Losses within a reasonable period of time by such ~~law~~Subcustodian, ~~regulation~~ Depository or ~~event imposes a cost or charge upon Custodian in relation to~~ Foreign Depository. Upon the ~~transferability, convertibility, or availability~~ occurrence of any ~~cash currency~~ event that causes or ~~Composite Currency Unit, such cost or charge shall be for the account of the~~ may cause any Losses to a Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's own negligence or willful misconduct. This indemnity shall be a continuing obligation of the Fund, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian sep be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall (i) promptly notify the Fund in of the occurrence of such event ~~that such dividends or interest are not paid~~ and ~~received when due;~~ (gii) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund take all reasonable steps under the ~~provisions~~ circumstances to mitigate the effects of ~~its then current prospectus~~ such event and ~~statement of additional information, or~~ to ~~ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by~~ avoid continuing harm to the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice and opinion of counsel to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as maybe applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse Custodian, at cost, for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 4 contracts

Samples: Custody Agreement (Vanguard Whitehall Funds), Custody Agreement (Vanguard World Fund), Custody Agreement (Vanguard Fixed Income Securities Funds)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held to~~ exercise such good faith, reasonable care, diligence, and prudence as a ~~standard of reasonable care~~ professional custodian for securities would exercise in carrying out ~~the provisions~~ all of this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waivedthese duties and obligations. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against the Fund, except those Losses arising out of Custodian's ’s own negligence or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any ~~Depositories or of any Foreign~~ Depositories, or, except ~~in each case~~ to the extent such action or inaction is a direct result of the Custodian~~' s~~ ’s failure to fulfill its duties hereunder, of any Foreign Depositories. With respect to any Losses incurred by the Fund as a result of the acts or ~~any~~ failures to act by a Subcustodian listed on part 1 of Schedule 1, Custodian shall be liable to the Fund for such Losses, but only to the extent such Losses arise out of or are caused by acts or failure to act by such Subcustodian for which it is liable under the terms of its agreement with Custodian and the laws governing such agreement. With respect to any Losses incurred by the Fund as a result of the acts or omission of a Subcustodian ~~(other than a BNY Affiliate)~~either not listed on part 1 of Schedule 1 or listed on part 2 of Schedule 1, Custodian shall take appropriate action to recover such ~~Losses from such Subcustodian;~~ Losses, and Custodian~~'s sole responsibility and~~ ’s liability ~~to the Fund~~ shall be limited to ~~amounts so received from such Subcustodian ( exclusive~~ the amount recovered net of costs and ~~expenses incurred by Custodian)~~expenses. In no event shall Custodian be liable to the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall ~~Custodian~~ BNY or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 iv) for conclusively presuming that all disbursements of cash directed by the ~~Fund, whether~~ Fund by ~~a Certificate, an Oral Instruction, or~~ an Instruction, are in accordance with Section ~~2(i~~2(j) of Article II hereof; (yv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yivi) for any Losses due to forces beyond the reasonable control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, ~~communications~~ non-internal communication services, but only to the extent beyond Custodian’s reasonable control, and, but only if Custodian is maintaining such back-up system(s) and disaster recovery plan(s) as are required by its regulators and all laws applicable to Custodian, interruption, loss or malfunction of internal communication services or of computer (software ~~and~~ or hardware) services; it being understood that Custodian shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances; (~~yii~~vii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's ’s failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ viii) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall in any way discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance hereunder, including reasonable fees and expenses of ~~counsel incurred by Custodian in a successful defense of claims by the Fund;~~ counsel, provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's ’s own negligence or willful misconduct or for any Losses which constitutes indirect, special, or consequential damages or lost profits or loss of business. Custodian agrees to indemnify the Fund and hold the Fund harmless from and against any and all Losses, including reasonable fees ad expenses of counsel, sustained or incurred by or asserted against the Fund arising out of the Custodian’s negligence or willful misconduct, provided, however, that the Custodian shall not indemnify the Fund for nor be liable for any Losses which constitute indirect, special, or consequential damages or lost profits or loss of business. This indemnity shall be a continuing obligation of the ~~Fund~~Fund and the custodian, ~~its~~ their successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian~~'s receiptor~~ ’s receipt or non-receipt of any such payment; except that Custodian shall notify the Fund of any difference between any amount the Fund has specified in a Certificate or Oral Instructions as the amount to be received and the amount custodian actually receives; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of the Fund and specifically allocated to a ~~Fund~~ Series are such as properly may be held by the Fund or such Series under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's ’s standard rates for such services as ~~maybe~~ may be applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's ’s Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse ~~Custodian, at cost,~~ Custodian for out-~~of-~~of pocket ~~expenses~~ expenses, subject to approval of the Fund, which are a normal incident of the services provided hereunder. 7. With Instructions from an Authorized Person or Oral Instructions, Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the ~~Fund~~ Series to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the ~~Fund~~Series, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency ~~Unit. Any such asset of, or obligation to,~~ Unit and shall notify the Fund ~~may be transferred to Custodian and any BNY Affiliate in order to effect the above rights~~whenever it has exercised such right. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received ~~or that a contrary Certificate or contrary Instructions are received~~ by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's ’s use thereof shall be subject to the Terms and Conditions attached as Appendix J I hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '‘40 Act and the rules thereunder. The Fund, or its authorized representatives, all regulatory authorities whose statutes, laws, rules and regulations are applicable to the Fund shall have access to such books and records during Custodian's ’s normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by ~~the~~ Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 1112. Custodian ~~shall have no duties or responsibilities whatsoever except such duties~~ will also provide those custody related services not already described above that are included in the Service Guidelines established and ~~responsibilities~~ agreed between the parties as ~~are specifically set forth in this Agreement,~~ the same may be revised from time to time by mutual agreement of the parties hereto. The Service Guidelines will also govern the timeliness and ~~no covenant or obligation shall be implied against Custodian in connection with this Agreement~~performance standards for custody related services where specified therein.

Appears in 4 contracts

Samples: Custody Agreement (ING Risk Managed Natural Resources Fund), Custody Agreement (ING Global Advantage & Premium Opportunity Fund), Custody Agreement (ING Asia Pacific High Dividend Equity Income Fund)

Appears in 4 contracts

Samples: Custody Agreement (PowerShares Exchange-Traded Fund Trust II), Custody Agreement (PowerShares Exchange-Traded Fund Trust II), Custody Agreement (PowerShares Exchange-Traded Fund Trust II)

Appears in 3 contracts

Samples: Custody Agreement (Alliance Institutional Reserves Inc), Custody Agreement (Alliancebernstein Variable Products Series Fund Inc), Custody Agreement (Alliancebernstein Blended Style Series Inc)

Appears in 3 contracts

Samples: Custody Agreement (Cullen Funds Trust), Custody Agreement (Cullen Funds Trust), Custody Agreement (Calamos Global Total Return Fund)

CONCERNING CUSTODIAN. ~~(a) The Custodian shall be held to a standard of reasonable care in carrying out the provisions of this Agreement; provided, however, that~~ For its services hereunder the Custodian shall be ~~held~~ paid such compensation at such times as may from time to ~~different standard of care of imposed~~ time be agreed on in writing by ~~any other provision of this Agreement or imposed upon~~ the parties hereto in a Custodian ~~by any applicable law or regulation, which by its terms cannot be contractually modified or waived~~Fee Agreement. ~~Except as otherwise expressly provided herein,~~ The Custodian shall not be liable for any ~~costs~~action taken in good faith upon any custodian order or facsimile herein described or certified copy of any resolution of the Board of Directors or of the Executive Committee of the Board of Directors of the Corporation, and may rely on the genuineness of any such document which it may in good faith believe to have been validly executed. The Corporation, on behalf of the Funds, agrees to indemnify and hold harmless Custodian and its nominee from all taxes, charges, expenses, ~~damages~~assessments, claims and liabilities (including counsel fees) incurred or ~~claims, including attorneys' and accountants' fees (collectively, “Losses”), incurred by~~ assessed against it or ~~asserted against~~ its nominee in connection with the ~~Fund~~performance of this Agreement, except ~~those Losses arising out of~~ such as may arise from the Custodian's or its nominee's own ~~negligence~~ negligent action, negligent failure to act or willful misconduct. Custodian ~~shall have no liability whatsoever~~ is authorized to charge any account of the Corporation for such items. In the ~~action or inaction~~ event of any ~~Depositories~~ advance of cash for any purpose made by Custodian resulting from orders or ~~of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result~~ instructions of the Custodian' s failure to fulfill its duties hereunder. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any Subcustodian (other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's sole responsibility and liability to the Fund shall be limited to amounts so received from such Subcustodian ( exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to the Fund or any third party for special, indirect or consequential damagesCorporation, or ~~lost profits~~ in the event that Custodian or ~~loss of business~~its nominee shall incur or be assessed any taxes, ~~arising~~ charges, expenses, assessments, claims or liabilities in connection with the performance of this Agreement, ~~nor shall Custodian~~ except such as may arise from its or ~~any Subcustodian be liable: (i) for acting in accordance with any Certificate~~ its nominee's own negligent action, negligent failure to act or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (yii) for the insolvency of any Subcustodian (other than a BNY Affiliate)willful misconduct, any ~~Depository, or, except to the extent such action or inaction is a direct result of the Custodian's failure to fulfill its duties hereunder,~~ property at any Foreign Depository; or (yiii)l for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or event and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be time held for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the respective Fund shall ~~not indemnify~~ be security therefor. The Custodian shall maintain a standard of care equivalent to that which would be required of a bailee for those Losses arising out of Custodian's own negligence or willful misconduct. This indemnity shall be a continuing obligation of the Fund, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian sep be under no obligation to inquire into, hire and shall not be liable ~~for: (a) Any Losses incurred~~ for any loss or damage to the Corporation resulting from participation in a securities depository unless such loss or damage arises by ~~the Fund~~ reason of any negligence, misfeasance, or ~~any other person as a result~~ willful misconduct of officers or employees of the ~~receipt or acceptance of fraudulent, forged or invalid Securities~~Custodian, or ~~Securities which are otherwise not freely transferable~~ from its failure to enforce effectively such rights as it may have against any securities depository or ~~deliverable without encumbrance in~~ from use of an agent, unless such loss or damage arises by reason of any ~~relevant market; (b) The validity~~ negligence, misfeasance, or willful misconduct of officers or employees of the ~~issue of any Securities purchased, sold~~Custodian, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount from its failure to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to enforce effectively such rights as it ~~that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund~~ may have against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fundagent. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice and opinion of counsel to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as maybe applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse Custodian, at cost, for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 3 contracts

Samples: Custodian Agreement (Axp Partners International Series Inc), Custodian Agreement (Axp Partners Series Inc), Custodian Agreement (Axp Partners Series Inc)

Appears in 3 contracts

Samples: Custody Agreement (Calamos Convertible & High Income Fund), Custody Agreement (Calamos Strategic Total Return Fund), Custody Agreement (Calamos Strategic Total Return Fund)

Appears in 3 contracts

Samples: Custody Agreement (Impact Shares Trust I), Custody Agreement (Impact Shares Trust I), Custody Agreement (Active Weighting Funds ETF Trust)

Appears in 3 contracts

Samples: Custody Agreement (Clough Global Opportunities Fund), Custody Agreement (Alpine Total Dynamic Dividend Fund), Custody Agreement (Alpine Global Dynamic Dividend Fund)

Appears in 3 contracts

Samples: Custody Agreement (GLG Investment Series Trust), Custody Agreement (GLG Investment Series Trust), Custody Agreement (GLG Investment Series Trust)

Appears in 3 contracts

Samples: Custody Agreement (Powershares Actively Managed Exchange-Traded Fund Trust), Custody Agreement (Powershares Actively Managed Exchange-Traded Fund Trust), Custody Agreement (Powershares Actively Managed Exchange-Traded Fund Trust)

Appears in 3 contracts

Samples: Custody Agreement (Ook Inc), Custody Agreement (Ook Inc), Custody Agreement (Ook Inc)

CONCERNING CUSTODIAN. (ai) ~~The~~ Custodian shall exercise reasonable care, prudence, and diligence and act in good faith and use all commercially reasonable efforts in the performance of its duties hereunder. Custodian shall be ~~held~~ responsible to the Trust for its own failure or the failure of any sub-custodian that it shall appoint (other than a ~~standard~~ Foreign Sub-Custodian referred to in Paragraph 27 or a sub-custodian appointed by Custodian at the specific direction of ~~reasonable care~~ the Trust) or that of its employees or agents, to perform its duties, obligations or responsibilities in ~~carrying out the provisions of~~ accordance with this Agreement~~; provided~~, ~~however~~but only to the extent that such failure results from acts or omissions that constitute willful misfeasance, ~~that~~ bad faith or negligence on the ~~Custodian shall be held to different standard~~ part of ~~care~~ Custodian, or on the part of ~~imposed by~~ its employees or agents, or reckless disregard of such duties, obligations and responsibilities. (ii) Without limiting the generality of the foregoing or any other provision of this ~~Agreement or imposed upon Custodian by any applicable law or regulation~~Agreement, which by its terms cannot be contractually modified or waived. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' and accountants' fees (collectively, “Losses”), incurred by or asserted against the Fund, except those Losses arising out of Custodian's own negligence or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result of the Custodian' s failure to fulfill its duties hereunder. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any Subcustodian (other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's sole responsibility and liability to the Fund shall be limited to amounts so received from such Subcustodian ( exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to the ~~Fund~~ Portfolio or any third party nor, except as otherwise provided in this subparagraph for special, indirect or consequential ~~damages,~~ damages or lost profits or loss of business, arising under or in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation even if previously informed of the ~~banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability~~ possibility of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software such damages and ~~hardware) services; (yii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result~~ regardless of the ~~Custodian's failure to fulfill its duties hereunder, any Foreign Depository; or (yiii)l for any Losses arising from the applicability~~ form of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or event and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's own negligence or willful misconduct. This indemnity shall be a continuing obligation of the Fund, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian sep be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3action. Custodian may, with respect to questions of law ~~specifically regarding an Account~~arising under any FCM Agreement, apply for and obtain the advice and opinion of counsel to the ~~independent trustees~~ Trust at the expense of ~~a Fund~~ the Trust, or ~~other~~ of its own counsel ~~that is mutually agreed upon by the Funds and the Custodian~~ at its own expense, and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such ~~advice. 4~~advice or opinion. Custodian shall be ~~under no obligation~~ liable to ~~take action to collect~~ the Trust for any ~~amount payable~~ loss or damage resulting from the use of the Book-Entry System or any Securities Depository arising by reason of any negligence or willful misconduct on ~~Securities in default,~~ the part of Custodian or ~~if payment is refused after due demand and presentment~~any of its employees or agents. ~~5. Custodian~~ (iii) Custodian's liability pursuant to the last sentence of subparagraph (a)(i) shall ~~have no duty or responsibility to inquire into~~include, ~~make recommendations~~but not be limited to, ~~supervise~~reimbursing the Trust for court-ordered damage awards, ~~or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the~~ fines, penalties, and judicially-approved settlements (and attorney's fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as maybe applicable. The Fund shall reimburse Custodian for all costs associated with the conversion disbursements relating thereto) arising out of ~~the Fund's Securities hereunder and the transfer of Securities and records kept~~ or in connection with ~~this Agreement. The Fund shall also reimburse Custodian~~the conduct giving rise to such liability. (iv) If the Trust receives notice of the commencement of any action, ~~at cost~~suit, or proceeding (an "Action"), or notice that any Action may be commenced, for ~~out-of-pocket expenses~~ which ~~are a normal incident of the services provided hereunder. 7.~~ Custodian ~~has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to Custodian. In addition~~ may be liable to the ~~rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations~~ Trust pursuant to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation tothis Paragraph 28, the Fund may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.Trust

Appears in 3 contracts

Samples: Custody Agreement (Nations Separate Account Trust), Custody Agreement (Nations Separate Account Trust), Custody Agreement (Nations Separate Account Trust)

Appears in 3 contracts

Samples: Global Custody Agreement (BNP Paribas L/S Commodities Trust), Global Custody Agreement (Jefferies Commodity Real Return ETF), Global Custody Agreement (Jefferies S&P 500 VIX Short-Term Futures ETF)

Appears in 3 contracts

Samples: Custody Agreement (Guggenheim Strategic Opportunities Fund), Custody Agreement (Clough Global Opportunities Fund), Custody Agreement (Greater China Fund Inc)

CONCERNING CUSTODIAN. (ai) ~~The~~ Custodian shall exercise care and diligence and act in good faith and use all commercially reasonable efforts in the performance of its duties hereunder. Custodian shall be ~~held~~ responsible to the Company for its own failure, or the failure of any sub-custodian that it shall appoint (other than a ~~standard~~ foreign sub-custodian referred to in Paragraph 27 or a sub-custodian appointed by Custodian at the specific direction of ~~reasonable care~~ the Company) or that of its employees or agents, to perform its duties, obligations or responsibilities in ~~carrying out the provisions of~~ accordance with this Agreement~~; provided~~, ~~however~~but only to the extent that such failure results from acts or omissions that constitute willful misfeasance, ~~that~~ bad faith or negligence on the ~~Custodian shall be held to different standard~~ part of ~~care~~ Custodian, or on the part of ~~imposed by~~ its employees or agents, or reckless disregard of such duties, obligations and responsibilities. (ii) Without limiting the generality of the foregoing or any other provision of this ~~Agreement or imposed upon Custodian by any applicable law or regulation~~Agreement, which by its terms cannot be contractually modified or waived. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' and accountants' fees (collectively, “Losses”), incurred by or asserted against the Fund, except those Losses arising out of Custodian's own negligence or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result of the Custodian' s failure to fulfill its duties hereunder. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any Subcustodian (other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's sole responsibility and liability to the Fund shall be limited to amounts so received from such Subcustodian ( exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to the Fund or any third party nor, except as otherwise provided in this subparagraph for special, indirect or consequential ~~damages,~~ damages or lost profits or loss of business, arising under or in connection with this Agreement, ~~nor~~ even if previously informed of the possibility of such damages and regardless of the form of action. Custodian may, with respect to questions of law arising under any FCM Agreement, apply for and obtain the advice and opinion of counsel to the Company at the expense of the Company, or of its own counsel at its own expense, and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice or opinion. Custodian shall be liable to the Company for any loss or damage resulting from the use of the Book-Entry System or any Securities Depository arising by reason of any negligence or willful misconduct on the part of Custodian or any ~~Subcustodian be liable: (i) for acting in accordance with any Certificate~~ of its employees or ~~Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same;~~ agents. (iii) ~~for conclusively presuming that all Instructions are given only by person(s~~Custodian's liability pursuant to the last sentence of subparagraph (a)(i) duly authorized; (00 for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for holding property in any particular country, includingshall include, but not be limited to, ~~Losses resulting from nationalization~~reimbursing the Company for court-ordered damage awards, ~~expropriation~~ fines, penalties, and judicially-approved settlements (and attorney's fees and disbursements relating thereto) arising out of or ~~other governmental actions; regulation~~ in connection with the conduct giving rise to such liability. (iv) If the Company receives notice of the ~~banking or securities industry; exchange or currency controls or restrictions~~commencement of any action, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of Godsuit, or ~~interruptions, loss or malfunctions of utilities, communications or computer~~ proceeding (~~software and hardware) services; (yii) for the insolvency of any Subcustodian (other than a BNY Affiliate~~an "Action"), or notice that any ~~Depository~~Action may be commenced, orfor which Custodian may be liable to the Company pursuant to this Paragraph 28, the Company shall give notice to Custodian of the commencement of the Action or of the possibility that an Action will be commenced. Any omission to notify Custodian will not relieve Custodian from any liability which it may have under this Paragraph, except to the extent ~~such action or inaction is a direct result~~ the failure to notify Custodian prejudices the rights of Custodian. Custodian will be entitled at its sole expense and liability, to exercise full control of the defense, compromise or settlement of any such Action, provided that Custodian (1) notifies the Company in writing of Custodian's ~~failure~~ intention to ~~fulfill its duties hereunder~~assume such defense; and (2) retains legal counsel reasonably satisfactory to the Company to conduct the defense of such Action. If Custodian advises the Company that it does not wish to exercise full control of any defense, compromise or settlement of any ~~Foreign Depository;~~ Action, Custodian shall be responsible for the fees and expenses of counsel selected by the Company, in addition to any other amounts for which Custodian may be liable pursuant to this Paragraph 28. The other person will cooperate with the person assuming the defense, compromise or settlement of any Action in accordance with this Paragraph in any manner that such person reasonably may request. If Custodian so assumes the defense of any such Action, the Company will have the right to employ a separate counsel and to participate in (but not control) the defense, compromise or settlement of the Action, but the fees and expenses of such counsel will be at the expense of the Company unless (a) Custodian has agreed to pay such fees and expenses, (b) any relief other than the payment of money damages is sought against the Company, or (~~yiii)l for any Losses arising~~ c) the Company has been advised by its counsel that there may be one or more defenses available to it which are different from ~~the applicability~~ or additional to those available to Custodian and that a conflict of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securitiesinterest therefore exists, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or event and to the extent that any such ~~law~~case that portion of the fees and expenses of such separate counsel that are reasonably related to matters for which Custodian is liable pursuant to this Paragraph will be paid by Custodian. The Company will not settle or compromise any such Action for which Custodian is liable pursuant to this Paragraph without the prior written consent of Custodian, ~~regulation~~ unless Custodian has failed, after reasonable notice, to undertake control of such Action in the manner provided in this Paragraph. Custodian will not settle or ~~event imposes a cost or charge upon Custodian~~ compromise any such Action in ~~relation to~~ which any relief other than the ~~transferability, convertibility, or availability~~ payment of ~~any cash currency or Composite Currency Unit~~money damages is sought against the Company without the consent of the Company, such ~~cost~~ consent not to be unreasonably withheld. In the event that Custodian intends to settle or ~~charge~~ compromise any Action in which solely money damages are sought, Custodian shall ~~be for~~ give the ~~account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies~~Company fifteen (15) business days prior written notice. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's own negligence or willful misconduct. This indemnity shall be a continuing obligation of the Fund, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for: (ai) ~~Any Losses incurred by~~ the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any ~~Securities~~ securities purchased, sold, or written by or for the Company or any Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (cii) ~~The~~ the legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (diii) ~~The~~ the legality of the declaration or payment of any dividend ~~or distribution~~ by the ~~Fund~~Company; (eiv) ~~The~~ the legality of any borrowing by the ~~Fund~~Company using securities as collateral; (fv) ~~The~~ the legality of any loan of portfolio ~~Securities~~securities, ~~nor shall Custodian be~~ or under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, ~~dealer~~ dealer, or financial institution or held by it at any time as a result of such loan of portfolio ~~Securities~~ securities is adequate ~~security~~ collateral for ~~the Fund~~ or against any loss it Custodian, the Company or any Fund might sustain as a result of such loan. Custodian specifically, ~~which~~ but not by way of limitation, shall not be under any duty or obligation periodically to check or notify the Company or any Fund that the amount of such cash collateral held by Custodian for the Company is sufficient collateral for the Company, but such duty or obligation shall be the sole responsibility of the ~~Fund~~Company. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio ~~Securities of the Fund~~ securities are lent makes payment to it of any dividends or interest which are payable to or for the account of the ~~Fund~~ Company during the period of such loan or at the termination of such loan, provided, ~~however~~ however, that Custodian shall promptly notify the ~~Fund~~ Company in the event that such dividends or interest are not paid and received when due;; or (gvi) ~~The~~ the sufficiency or value of any amounts of money and/or ~~Securities~~ securities held in any ~~Special Account~~ segregated account described in Paragraph 12(a) hereof in connection with transactions by the ~~Fund;~~ Funds, or whether such segregated account provides the compliance intended to be achieved. In addition, Custodian shall not be under any duty or obligation to see that any broker, dealer, ~~futures commission merchant~~ FCM or ~~clearing member~~ Clearing Member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, ~~futures commission merchant~~ FCM or ~~clearing member~~Clearing Member, ~~or whether~~ to see that any payment received by Custodian from any broker, dealer, ~~futures commission merchant~~ FCM or ~~clearing member~~ Clearing Member is the amount the ~~Fund~~ Company is entitled to receive, or to notify the Company or a Fund of Custodian's ~~receiptor~~ receipt or non-receipt of any such payment~~; or~~. (c) Custodian shall not be liable for, or considered to be sub-custodian or custodian of, any money, whether or not represented by any check, draft, or other instrument for the payment of money, received by Custodian on behalf of the Company until Custodian actually receives and collects such money directly or by the final crediting of the account representing the Fund's interest at the Book-Entry System or a Securities Depository. (d) Custodian shall not have any responsibility or be liable for ascertaining or acting upon any calls, conversions, exchange offers, tenders, interest rate changes or similar matters relating to securities held in a Securities Depository, unless Custodian shall have actually received timely notice from such Securities Depository. In no event shall Custodian have any responsibility or liability for the failure of any Securities Depository to collect, or for the late collection or late crediting by a Securities Depository of any amount payable upon securities deposited in a Securities Depository which may mature or be redeemed, retired, called or otherwise become payable. Upon receipt of Written Instructions from the Company of an overdue amount on securities held in a Securities Depository Custodian shall make a claim against a Securities Depository on behalf of the Company, except that Custodian shall not be under any obligation to appear in, prosecute or defend any action suit or proceeding in respect to any securities held by a Securities Depository which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. (e) Custodian shall not be under any duty or obligation to take action to effect collection of any amount due to the Company from a transfer agent of the Company nor to take any action to effect payment or distribution by the transfer agent of the Company of any amount paid by Custodian to the transfer agent of the Company in accordance with this Agreement. (f) Custodian shall not be under any duty or obligation to take action to effect collection of any amount, if the securities upon which such amount is payable are in default, or if payment is refused after due demand or presentation, unless and until (i) it shall be directed to take such action by Written Instructions and (ii) it shall be assured to its reasonable satisfaction of reimbursement of its costs and expenses in connection with any such action. (g) Custodian may in addition to the employment of Foreign Sub-Custodians pursuant to Paragraphs 7 and 27, hereof appoint one or more banking institutions as Depository or Depositories, as a sub-custodian or as sub-custodians, or as a co-custodian or as co-custodians, including, but not limited to, banking institutions located in foreign countries, of securities and moneys at any time owned by the Fund, upon such terms and conditions as may be approved in an Officer's Certificate or contained in an agreement executed by Custodian and the Company and the appointed institution. (h) ~~Whether~~ Custodian shall not be under any ~~Securities~~ duty or obligation (i) to ascertain whether any securities at any time delivered to, or held by it or by any ~~Subcustodian~~Foreign Sub-Custodian, for the account of the Company and specifically allocated to a Fund are such as properly may be held by the Company or such Fund under the provisions of its ~~then current prospectus and statement of additional information~~Prospectus, or (ii) to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. (i) Custodian ~~may,~~ shall charge its compensation and any expenses with respect to ~~questions~~ the Funds of ~~law specifically regarding~~ the Company incurred by Custodian in the performance of its duties under this Agreement only against the money of the Fund or Funds of the Company from which such compensation or expenses is actually due and payable, and under no circumstances shall any compensation or expenses due to Custodian be considered to be a joint, or joint and several, obligation of the Funds of the Company. To the extent that Custodian is entitled to recover from the Company any loss, damage, liability or expense (including counsel fees) under this Agreement, Custodian shall charge the amount due in respect of such loss, damage, liability or expense (including counsel fees) only against the money held by it for the Fund or Funds of the Company that is/are identified by the Company in an ~~Account~~Officer's Certificate, ~~obtain~~ unless and until the ~~advice and opinion of counsel~~ Company instructs Custodian by an Officer's Certificate to charge against money held by it for the ~~independent trustees~~ account of a Fund such Fund's pro rata share (based on such Fund's net asset value at the time of the charge in proportion to the aggregate net asset value of all Funds at that time) of the amount of such loss, damage, liability or expense (including counsel fees). (j) Custodian shall be entitled to rely upon any Officer's Certificate, Written Instructions, notice or other ~~counsel that is mutually agreed upon~~ instrument in writing received by ~~the Funds and the~~ Custodian and ~~shall~~ reasonably believed by Custodian to be ~~fully protected with respect to anything done~~ an Officer's Certificate or ~~omitted by it in good faith in conformity with such advice. 4~~Written Instructions. Custodian shall be ~~under no obligation~~ entitled to ~~take action to collect~~ rely upon any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6Oral Instructions actually received by Custodian. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as maybe applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse Custodian, at cost, for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8. The Fund Company agrees to forward to Custodian ~~a Certificate or~~ Written Instructions confirming such Oral Instructions in such manner so that such Written Instructions are received by Custodian, whether by hand delivery, telecopier or other similar device, or otherwise, by the close of business of the same day that such Oral Instructions are ~~given to~~ received by Custodian. The ~~Fund~~ Company agrees that the fact that such confirming ~~Certificate or Instructions~~ instructions are not ~~received~~ received, or that a contrary ~~Certificate or contrary Instructions~~ instructions are ~~received~~ received, by Custodian shall in no way affect the validity of the transactions or enforceability of the transactions hereby authorized by ~~such~~ the Company. The Company agrees that Custodian shall not incur any liability to the Company in acting upon Oral Instructions ~~and effected by Custodian. If the Fund elects~~ given to ~~transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject~~ Custodian hereunder concerning such transactions provided such instructions reasonably appear to the Terms and Conditions attached as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be have been received from an Authorized Person. ~~9. The books and records pertaining to the Fund which are in possession of~~ (k) Custodian shall be entitled to rely upon any instrument, instruction or notice received by it and reasonably believed by it to be given in accordance with the ~~property~~ terms and conditions of any FCM Agreement. Without limiting the generality of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fundforegoing, Custodian shall ~~provide in hard copy~~ not be under any duty to inquire into, and Custodian shall not be liable for, the accuracy of any statements or ~~on computer disc any records included~~ representations contained in any such ~~delivery which are maintained by Custodian on~~ instrument or other notice including, without limitation, any specification of any amount to be paid to a ~~computer disc~~broker, dealer, futures commission merchant or ~~are similarly maintained~~clearing member. ~~10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The~~ (l) Custodian shall provide the ~~Fund~~ Company with any report obtained by ~~the~~ Custodian on the system of internal accounting control of ~~a Depository~~the Book-Entry System, any Securities Depository utilized hereunder the Depository or the Options Clearing Corporation, and with such reports on its own ~~system~~ systems of internal accounting control as the ~~Fund~~ Company may reasonably request from time to time. 11(m) Subject to the foregoing provisions of this Agreement, including, without limitation, those contained in Paragraph 27 hereof, Custodian may deliver and receive securities, and receipts with respect to such securities, and arrange for payments to be made and received by Custodian in accordance with the customs prevailing from time to time among brokers or dealers in such securities. When Custodian is instructed to deliver securities against payment, delivery of such securities and receipt of payment therefor may not be completed simultaneously. The Fund assumes all responsibility and liability for all credit risks involved in connection with Custodian's delivery of securities pursuant to proper instructions of the Fund, which responsibility and liability shall continue until final payment in full has been received by Custodian. (n) Custodian shall not have no any duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied in this Agreement against ~~Custodian in connection with this Agreement~~Custodian.

Appears in 3 contracts

Samples: Custody Agreement (Nations Fund Inc), Custody Agreement (Nations Fund Inc), Custody Agreement (Nations Fund Inc)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held to~~ exercise such good faith, reasonable care, diligence and prudence as a ~~standard of reasonable care~~ professional custodian for Securities would exercise in carrying out ~~the provisions~~ all of its duties and obligations under this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waived. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against the Fund, except those Losses arising out of Custodian's ’s own negligence or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result of the Custodian~~' s~~ ’s failure to fulfill its duties ~~hereunder~~hereunder or act in accordance with the standard of care provided in this Article VIII. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any ~~Subcustodian (other than a BNY Affiliate)~~Subcustodian, Custodian shall take appropriate action to recover such Losses from such Subcustodian; and ~~Custodian's sole~~ Custodian shall have no more or less responsibility ~~and~~ or liability to the Fund than such Subcustodian has to the Custodian, and then only for such Losses as Custodian is able to recover from Subcustodian, provided that the Custodian has selected and retained any such Subcustodian in accordance with the Custodian’s standard of care under this Agreement. At the election of the Fund, it shall be ~~limited~~ entitled to ~~amounts so received from~~ be subrogated to the rights of Custodian with respect to any claims against any Subcustodian as a consequence of any such ~~Subcustodian ( exclusive of costs~~ Losses if and ~~expenses incurred by Custodian)~~to the extent that the Fund has not been made whole for such Losses. In no event shall Custodian be liable to the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively ~~presuming~~ presuming, in the absence of actual knowledge to the contrary, that all Instructions are given only by person(s) duly authorized; (00 iv) for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (yv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yivi) for any Losses due to forces beyond the reasonable control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, but only to the extent beyond Custodian’s reasonable control and only if Custodian is maintaining such back-up system(s) and disaster recovery plan(s) as are required by its regulators and all laws and regulations applicable to Custodian or otherwise customary for entities performing the types of duties Custodian is obligated to perform under this Agreement, and it being understood that Custodian shall use commercially reasonable efforts to resume performance as soon as practicable under the circumstances; (~~yii~~vii) for the insolvency of any Subcustodian (other than a ~~BNY~~ Custodian Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's ’s failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ viii) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any ~~BNY~~ Custodian Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's ’s own negligence or willful ~~misconduct~~misconduct or for any Losses that constitute indirect, special or consequential damages or lost profits or loss of business. This indemnity shall be a continuing obligation of the Fund, and its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian~~'s receiptor~~ ’s receipt or non-receipt of any such payment, except that Custodian shall endeavor to notify the Fund of any difference between any amount the Fund has specified in a Certificate or Oral Instruction as the amount to be received and the amount Custodian actually receives; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of the Fund and specifically allocated to a ~~Fund~~ Series are such as properly may be held by the Fund or such Series under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ (at its own expense) and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's ’s standard rates for such services as ~~maybe~~ may be applicable. The Fund shall reimburse Custodian for all actual costs associated with the conversion of the Fund's ’s Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse ~~Custodian, at cost,~~ Custodian for out-of-pocket ~~expenses~~ expenses, subject to approval of the Fund, which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund on behalf of a particular Series in connection with any and all obligations of ~~the Fund~~ that Series to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when ~~the Fund~~ such Series shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to ~~the Fund~~ that Series to retain or set-off, against such obligations of ~~the Fund~~such Series, any Securities or cash Custodian or a ~~BNY~~ Custodian Affiliate may directly or indirectly hold for the account of the ~~Fund~~Fund on behalf of such Series, and any obligations (whether matured or unmatured) that Custodian or a ~~BNY~~ Custodian Affiliate may have to the Fund on behalf of such Series in any currency or Composite Currency ~~Unit~~Unit and shall notify the Fund whenever it has exercised such right. Any such asset of, or obligation to, ~~the Fund~~ such Series may be transferred to Custodian and any ~~BNY~~ Custodian Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian prior to the receipt of such contrary Certificate or contrary Instruction by the relevant representative of Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's ’s use thereof shall be subject to the Terms and Conditions attached as Appendix J I hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. If Custodian receives Instructions which appear on their face to have been transmitted by an Authorized Person, and which Custodian reasonably believes to have been transmitted by an Authorized Person, via (i) computer facsimile, email, the Internet or other insecure electronic method, or (ii) secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys, the Fund understands and agrees that Custodian cannot determine the identity of the actual sender of such Instructions and that Custodian shall conclusively presume that such Written Instructions have been sent by an Authorized Person, and the Fund shall be responsible for ensuring that only Authorized Persons transmit such Instructions to Custodian. If the Fund elects (with Custodian’s prior consent) to transmit Instructions through an on-line communications service owned or operated by a third party, the Fund agrees that Custodian shall not be responsible or liable for the reliability or availability of any such service. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '‘40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's ’s normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time~~. 11~~. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian agrees that it will provide any sub-certifications reasonably requested by the Fund in connection with ~~this Agreement~~any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any applicable rules or regulations promulgated thereunder, provided the same do not change Custodian’s standard of care.

Appears in 3 contracts

Samples: Master Custody Agreement (Virtus Equity Trust), Master Custody Agreement (Virtus Insight Trust), Master Custody Agreement (Virtus Opportunities Trust)

Appears in 3 contracts

Samples: Custody Agreement (Clough Global Allocation Fund), Custody Agreement (Reaves Utility Income Fund), Custody Agreement (Clough Global Opportunities Fund)

Appears in 3 contracts

Samples: Custody Agreement (WisdomTree Trust), Custody Agreement (WisdomTree Trust), Custody Agreement (WisdomTree Trust)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held~~ exercise the due care expected of a professional custodian for hire with respect to ~~a standard of reasonable care~~ the Securities in ~~carrying out the provisions of this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement~~ its possession or ~~imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waived~~control. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or ~~claims,~~ claims (including attorneys' and ~~accountants~~accounts' ~~fees (collectively, “Losses”),~~ fees) incurred by or asserted against ~~the Fund~~Customer, except those ~~Losses~~ costs, expenses, damages, liabilities or claims arising out of the negligence, fraud or wilful misconduct of Custodian~~'s own negligence or willful misconduct~~. Custodian shall have no ~~liability whatsoever~~ obligation hereunder for ~~the~~ costs, expenses, damages, liabilities or claims (including attorneys' or accounts' fees) which are sustained or incurred by reason of any action or inaction of by the Book-Entry System or any ~~Depositories or of any Foreign Depositories~~Depository, ~~except in each case to the extent~~ unless such action or inaction is ~~a direct result of the Custodian' s failure to fulfill its duties hereunder. With respect to any Losses incurred~~ caused by the ~~Fund as a result~~ negligence, fraud or wilful misconduct of ~~the acts or any failures to act by any Subcustodian (other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and~~ Custodian~~'s sole responsibility and liability to the Fund shall be limited to amounts so received from such Subcustodian ( exclusive of costs and expenses incurred by Custodian)~~. In no event shall Custodian be liable to ~~the Fund~~ Customer or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (yii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's failure to fulfill its duties hereunder, any Foreign Depository; or (yiii)l for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or event and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund Customer agrees to indemnify Custodian and hold Custodian harmless from and against any and all ~~Losses~~ costs, expenses, damages, liabilities and claims (including reasonable attorneys' fees and accounts' fees), sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by ~~the Fund~~Customer; ~~provided however~~provided, that ~~the Fund~~ Customer shall not indemnify Custodian for those ~~Losses~~ costs, expenses, damages, liabilities or claims arising out of Custodian's ~~own negligence~~ negligence, fraud or ~~willful~~ wilful misconduct. This indemnity shall be a continuing obligation of ~~the Fund~~Customer, its successors and assigns, notwithstanding the termination of this Agreement. (c) If any loss of Securities arises out of the negligence, fraud or wilful misconduct of Custodian, or if any loss of definitive Securities arises out of the (I) negligence or dishonesty of Custodian's officers and employees, or (ii) burglary, robbery, holdup, theft or mysterious disappearance, including loss by damage or destruction (while the definitive Securities are in Custodian's physical possession), Custodian shall promptly replace such Securities with like kind and quality, together with all rights and privileges pertaining to such Securities or, if acceptable to Customer, deliver the cash equivalent to the extent of the fair market value of the Securities as of the date of discovery of such loss. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for~~: (a) Any Losses~~ , any losses incurred by ~~the Fund~~ Customer or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid U.S. Securities, or U.S. Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fundencumbrance. 3. Custodian may, with respect to questions of law ~~specifically regarding an Account~~related to this Agreement and Custodian's performance hereunder, obtain the advice ~~and opinion~~ of ~~counsel to~~ counsel, at the ~~independent trustees~~ expense of ~~a Fund or other counsel that~~ Customer if prior approval is ~~mutually agreed upon by the Funds and the~~ received from Customer. Custodian ~~and~~ shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on U.S. Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. ~~The Fund~~ Customer shall pay to Custodian the fees ~~and charges as may be specifically agreed upon~~ set forth in Schedule I attached hereto, such fees to remain in effect for a period of two years from ~~time to time and such other fees and charges at Custodian's standard rates for such services as maybe applicable~~the date of this Agreement. ~~The Fund~~ Customer shall reimburse Custodian for all costs associated with the conversion of ~~the Fund~~Customer's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. ~~The Fund shall also reimburse Custodian, at cost,~~ Custodian hereby waives all customary fees for ~~out-of-pocket expenses which are a normal incident~~ services performed in conjunction with the initial conversion of Customer's Securities hereunder and the ~~services provided hereunder~~transfer of Securities and records kept in connection with such Securities initially converted. 7. Custodian ~~has the right~~ shall be entitled to ~~debit~~ rely upon any ~~cash account for any amount payable~~ Written or Oral Instruction actually received by the Fund in connection with any and all obligations of the Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and ~~any BNY Affiliate in order~~ reasonably believed by Custodian to ~~effect the above rights. 8~~be duly authorized and delivered. ~~The Fund~~ Customer agrees to forward to Custodian ~~a Certificate or~~ Written Instructions confirming Oral Instructions by the close of business of ~~the~~ same day that such Oral Instructions are given to Custodian. ~~The Fund~~ Customer agrees that the fact that such confirming ~~Certificate or~~ Written Instructions are not received or that a contrary ~~Certificate or contrary~~ Written Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral 4 Instructions and effected by Custodian. If ~~the Fund~~ Customer elects to transmit Written Instructions through an on-line ~~communications~~ communication system offered by Custodian, ~~the Fund~~Customer's use thereof shall be subject to the Terms and Conditions attached hereto as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person.I. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during (a) During Custodian's normal business ~~hours~~hours upon receipt of reasonable notice from Customer, any officer or employee of the Customer, any independent account(s) selected by the Customer and any person designated by any regulatory authority having jurisdiction over Customer shall be entitled to examine on Custodian's premises. Securities held by Custodian on its premises and the Custodian's records regarding Securities held hereunder deposited with entities authorized to hold Securities in accordance with Article III, Section I hereof, but only upon Customer's furnishing Custodian with properly authorized instructions to that effect, provided, such examination shall be consistent with Custodian's obligations of confidentiality to other parties. Custodian's costs and expenses in facilitating such examinations shall be borne by Customer, provided that such costs and expenses are not deemed to be Custodian's costs in providing Customer with documents it is otherwise obligated to provide Customer hereunder. (b) Custodian shall, subject to restrictions under applicable law, provide for itself and seek to obtain from any entity with which Custodian maintains the physical possession of any of the Securities in the Account such records of such entity relating to the Account as may be reasonably required by the Customer or its agents in connection with an internal examination by the Customer of its own affairs. Upon ~~the~~ reasonable request ~~of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund~~from Customer, Custodian shall ~~provide in hard copy~~ useits best efforts to furnish to Customer such reports (or ~~on computer disc any records included in any~~ portions thereof) of the external auditors of each such ~~delivery which are maintained by Custodian on a computer disc, or are similarly maintained~~entity as related directly to such entity's system of internal accounting controls applicable to its duties under its agreement with Custodian. 109. It is understood that Custodian is authorized to supply any information regarding the ~~Accounts~~ Account which is required by any law, regulation or rule now or hereafter in effect. 10. ~~The~~ Custodian shall ~~provide~~ not be responsible or liable for any failure or delay in the ~~Fund with any report obtained~~ performance its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software)or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; it being understood that Custodian shall use its best efforts to resume performance as soon as practicable under the ~~Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time~~circumstances. 11. Custodian may enter into subcontracts, agreements and understands with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. 12. Custodian shall notify Customer promptly of missing Securities which could effect the sale, redemption or other payments to Customer related to such missing Securities. Custodian shall notify Customer of any position shortages older than 30 days in any Security held by Customer. 13. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 3 contracts

Samples: Custody Agreement (Separate Account Ny-B of First Golden Amer Life Ins Co of Ny), Custody Agreement (Separate Account Ny-B of First Golden Amer Life Ins Co of Ny), Custody Agreement (First Golden American Life Insurance Co of New York)

Appears in 3 contracts

Samples: Custody Agreement (Principal Partners Largecap Blend Fund Inc), Custody Agreement (Principal Partners Smallcap Growth Fund Inc), Custody Agreement (Principal Partners Largecap Value Fund Inc)

Appears in 3 contracts

Samples: Custody Agreement (Stratton Multi-Cap Fund, Inc.), Custody Agreement (Stratton Funds, Inc.), Custody Agreement (Stratton Real Estate Fund, Inc.)

Appears in 2 contracts

Samples: Custody Agreement (Advent Claymore Global Convertible Opport Income Fd), Custody Agreement (Advent Claymore Convertible Securities & Income Fund)

CONCERNING CUSTODIAN. (a) ~~The~~ In performing its duties under this Agreement Custodian shall ~~be held to a standard of~~ exercise the reasonable care and diligence of a professional custodian for hire and shall act in ~~carrying out~~ good faith in the ~~provisions~~ performance of this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its ~~terms cannot be contractually modified or waived~~duties hereunder. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against the Fund, except those Losses arising out of Custodian's ’s own negligence or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result of the Custodian~~' s~~ ’s failure to fulfill its duties hereunder. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any Subcustodian (other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's ’s sole responsibility and liability to the Fund shall be limited to amounts so received from such Subcustodian ( (exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall ~~Custodian~~ BNY or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 iv) for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (yv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yivi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (~~yii~~vii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's ’s failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ viii) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or ~~inaction, or~~ inaction arising out of or related to Custodian's ’s performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's ’s own negligence or willful misconduct. This indemnity shall be a continuing obligation of the Fund, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian~~'s receiptor~~ ’s receipt or non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of the Fund and specifically allocated to a ~~Fund~~ Series are such as properly may be held by the Fund or such Series under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to ~~time~~ time, with reasonable notice to and approval from the Fund, and such other fees and charges at Custodian's ’s standard rates for such services as ~~maybe~~ may be applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's ’s Securities hereunder and the transfer of Securities and the transfer of records kept in connection with this Agreement. The Fund shall also reimburse ~~Custodian, at cost,~~ Custodian for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without giving prior notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit, provided that promptly after exercising such right Custodian shall give notice of such exercise to the Fund. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's ’s use thereof shall be subject to the Terms and Conditions attached as Appendix J I hereto. If Custodian receives Instructions which appear on their face to have been transmitted by an Authorized Person via (i) computer facsimile, ~~and Custodian shall provide user and~~ email, the Internet or other insecure electronic method, or (ii) secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys, the Fund understands and ~~authentication keys only to an Authorized Person or a person reasonably believed~~ agrees that Custodian cannot determine the identity of the actual sender of such Instructions and that Custodian shall conclusively presume that such Written Instructions have been sent by ~~Custodian to be~~ an Authorized Person, and the Fund shall be responsible for ensuring that only Authorized Persons transmit such Instructions to Custodian. If the Fund elects (with Custodian’s prior consent) to transmit Instructions through an on-line communications service owned or operated by a third party, the Fund agrees that Custodian shall not be responsible or liable for the reliability or availability of any such service. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained by Custodian as required by the '‘40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's ’s normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall promptly provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 2 contracts

Samples: Custody Agreement (Blackstone / GSO Senior Floating Rate Term Fund), Custody Agreement (Blackstone / GSO Strategic Credit Fund)

Appears in 2 contracts

Samples: Custody Agreement (Advisorone Funds), Custody Agreement (Renaissance Funds)

CONCERNING CUSTODIAN. (a) The Custodian shall be held to a standard of reasonable care in carrying out the provisions of this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waived. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants~~' fees~~ ’ fees, costs and expenses (collectively, “Losses”), incurred by or asserted against ~~the Fund~~Customer, except those Losses arising out of ~~Custodian's own~~ the gross negligence or willful ~~misconduct~~misconduct of Custodian. Custodian shall have no liability whatsoever for the action or inaction of any ~~Depositories~~ Depository or issuer of Securities. Subject to Section 1(b) below, Custodian’s responsibility with respect to any ~~Foreign Depositories, except in each case~~ Securities or cash held by a Subcustodian is limited to the ~~extent~~ failure on the part of Custodian to exercise reasonable care in the selection, retention or monitoring of such ~~action or inaction is a direct result~~ Subcustodian in light of prevailing settlement and securities handling practices, procedures and controls in the ~~Custodian' s failure to fulfill its duties hereunder~~relevant market. With respect to any Losses incurred by ~~the Fund~~ Customer as a result of the acts or ~~any failures~~ the failure to act by any Subcustodian (other than a ~~BNY~~ BNYM Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's ’s sole responsibility and liability to ~~the Fund~~ Customer shall be limited to amounts so received from such Subcustodian ( (exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to ~~the Fund~~ Customer or any third party for special, ~~indirect~~ indirect, punitive or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (yii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's failure to fulfill its duties hereunder, any Foreign Depository; or (yiii)l for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or event and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any ~~BNY~~ BNYM Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) ~~The Fund~~ Customer agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance hereunder, including reasonable ~~fees~~ fees, costs and expenses of counsel incurred by Custodian in a successful defense of claims by ~~the Fund~~Customer; provided however, that ~~the Fund~~ Customer shall not indemnify Custodian for those Losses arising out of Custodian~~'s own~~ ’s negligence or willful misconduct. This indemnity shall be a continuing obligation of ~~the Fund~~Customer, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for~~: (a) Any Losses~~ , any losses incurred by ~~the Fund~~ Customer or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant ~~market;~~ market (~~b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or~~ other than those received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by from a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the FundBNYM Affiliate). 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. ~~The Fund~~ Customer shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's ’s standard rates for such services as ~~maybe~~ may be applicable. ~~The Fund~~ Customer shall reimburse Custodian for all reasonable costs associated with the conversion of ~~the Fund's~~ Customer’s Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. ~~The Fund~~ Customer shall also reimburse ~~Custodian, at cost,~~ Custodian for reasonable out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by ~~the Fund~~ Customer and not disputed by Customer in good faith in connection with any and all obligations of ~~the Fund~~ Customer to Custodian, whether or not relating to or arising under this Agreement. In addition to the rights of Custodian under applicable law and other agreements, at any time when ~~the Fund~~ Customer shall not have honored any and all of its obligations to Custodian, Custodian shall have the right without notice to ~~the Fund~~ Customer to retain or set-off, against such obligations of ~~the Fund~~Customer, any Securities or cash Custodian or a ~~BNY~~ BNYM Affiliate may directly or indirectly hold for the account of ~~the Fund~~Customer, and any obligations (whether matured or unmatured) that Custodian or a ~~BNY~~ BNYM Affiliate may have to ~~the Fund~~ Customer in any ~~currency or Composite Currency Unit~~currency, provided, however, that Custodian shall endeavor to provide notice to Customer prior to exercising any rights hereunder. Any such asset of, or obligation to, ~~the Fund~~ Customer may be transferred to Custodian and any ~~BNY~~ BNYM Affiliate in order to effect the above rights. 8(a) Subject to the terms below, Custodian shall be entitled to conclusively rely upon any Written Instructions or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be duly authorized and delivered. ~~The Fund~~ Customer agrees to that an Authorized Person shall forward to Custodian ~~a Certificate or~~ Written Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. ~~The Fund~~ Customer agrees that the fact that such confirming ~~Certificate or~~ Written Instructions are not received or that a contrary ~~Certificate or contrary~~ Written Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. (b) The Custodian shall have the right to accept and act upon Written Instructions, including funds transfer instructions and Corporate Action Instructions, given pursuant to this Custody Agreement and delivered using Electronic Means; provided, however, that the Customer shall provide to the Custodian a Certificate of Authorized Persons listing Authorized Persons and containing specimen signatures of such Authorized Persons, which Certificate shall be amended by the Customer whenever a person is to be added or deleted from the listing. If the ~~Fund~~ Customer elects to give the Custodian Written Instructions using Electronic Means and the Custodian in its discretion elects to act upon such Written Instructions, the Custodian’s understanding of such Written Instructions shall be deemed controlling. The Customer understands and agrees that the Custodian cannot determine the identity of the actual sender of such Written Instructions and that the Custodian shall conclusively presume that Written Instructions that purport to have been sent by an Authorized Person listed on the Certificate of Authorized Persons provided to the Custodian have been sent by such Authorized Person. The Customer shall be responsible for ensuring that only Authorized Persons transmit such Written Instructions to the Custodian and that the Customer and all Authorized Persons are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys with reasonable care upon receipt by the Customer. The Custodian shall not be liable for any losses, costs or expenses arising directly or indirectly from the Custodian’s reliance upon and compliance with such Written Instructions notwithstanding such directions conflict or are inconsistent with a subsequent Written Instruction. The Customer agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Written Instructions to the Custodian, including without limitation the risk of the Custodian acting on unauthorized Written Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Written Instructions to the Custodian and that there may be more secure methods of transmitting Written Instructions than the method(s) selected by the Customer; (iii) that the security procedures (if any) to be followed in connection with its transmission of Written Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Custodian immediately upon learning of any compromise or unauthorized use of the security procedures. (c) If Customer elects to transmit Written Instructions or Corporate Action Instructions through an electronic platform offered by Custodian or a BNYM Affiliate, Customer’s access to and use thereof shall be subject to any terms and conditions contained in a separate written agreement. Customer shall be responsible for requesting access to any such electronic platform and completing the documentation required for such access and nothing herein shall obligate Custodian to ensure any such access. Should Customer fail to, or elect not to, avail itself of such access, neither Custodian nor any BNYM Affiliate accepts any responsibility whatsoever for any Losses arising as a result of the lack of such access in connection with its services under this Agreement. Notwithstanding any other provision of this Agreement, whenever Custodian is required to deliver any notice or information to Customer under the terms of this Agreement, it may do so by making the relevant notice or information available to Customer via an electronic platform operated by Custodian or a BNYM Affiliate. If Customer elects (with Custodian’s prior consent) to transmit Written Instructions or Corporate Action Instructions through an on-line communications ~~system offered~~ service owned or operated by ~~Custodian~~a third party, ~~the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and~~ Customer agrees that Custodian shall ~~provide user and authorization codes, passwords and authentication keys only to an Authorized Person~~ not be responsible or ~~a person reasonably believed by Custodian to be an Authorized Person~~liable for the reliability or availability of any such service. 9. ~~The books~~ Upon reasonable request and ~~records pertaining to the Fund which are in possession of~~ provided Custodian shall ~~be the property~~ suffer no significant disruption of ~~the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund~~its normal activities, ~~or its authorized representatives,~~ Customer shall have access to ~~such~~ Custodian’s books and records relating to the Accounts during Custodian's ’s normal business hours. Upon ~~the~~ reasonable ~~request of the Fund~~request, copies of any such books and records shall be provided ~~by Custodian~~ to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintainedCustomer at Customer’s expense. 10. It Custodian shall not either before or for one year after the termination of this Agreement disclose to any person not authorized by Customer in writing to receive the same any confidential information relating to Customer or its business. Custodian shall not disclose Customer’s confidential information to personnel responsible for any proprietary trading activity of Custodian or its affiliates. Notwithstanding the immediately preceding sentence, it is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Neither Customer nor Custodian shall be responsible or liable for any failure or delay in the performance of their respective obligations under this Agreement to the extent caused, directly or indirectly, by natural disasters, fire, acts of God, strikes or other labor disputes, work stoppages, acts of war or terrorism, general civil unrest, actual or threatened epidemics, disease, act of any government, governmental authority or police or military authority, declared or threatened state of emergency, legal constraint, the interruption, loss or malfunction of utilities or transportation, communications or computer systems, or any other similar events beyond its reasonable control. Custodian will use commercially reasonable efforts to minimize the effect of any such events. 12. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 2 contracts

Samples: Global Custody Agreement (AG Twin Brook Capital Income Fund), Global Custody Agreement (AG Twin Brook Capital Income Fund)

CONCERNING CUSTODIAN. (a) The Custodian shall be held to a standard of reasonable care in carrying out the provisions of this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waived. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' and accountants' ~~fees~~ fees, costs and expenses (collectively, “"Losses”"), incurred by or asserted against ~~the Fund~~Customer, except those Losses arising out of ~~Custodian's own negligence~~ the gross negligence, fraud or willful ~~misconduct~~misconduct of Custodian or Custodian’s willful breach of this Agreement. Custodian shall have no liability whatsoever for the action or inaction of any ~~Depositories~~ Depository or issuer of Securities. Custodian agrees that it shall conduct ongoing monitoring of any ~~Foreign Depositories~~Subcustodian appointed. Subject to Section 1(b) below, ~~except in each case~~ Xxxxxxxxx's responsibility with respect to any Securities or cash held by a Subcustodian is limited to the ~~extent~~ failure on the part of Custodian to exercise reasonable care in the selection, oversight or retention of such ~~action or inaction is a direct result~~ Subcustodian in light of prevailing settlement and securities handling practices, procedures and controls in the ~~Custodian' s failure to fulfill its duties hereunder~~relevant market. With respect to any Losses incurred by ~~the Fund~~ Customer as a result of the acts or ~~any failures~~ the failure to act by any Subcustodian (other than a ~~BNY~~ BNYM Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's sole responsibility and liability to ~~the Fund~~ Customer shall be limited to amounts so received from such Subcustodian ( (exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to ~~the Fund~~ Customer or any third party for special, ~~indirect~~ indirect, punitive or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (yii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's failure to fulfill its duties hereunder, any Foreign Depository; or (yiii)l for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or event and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any ~~BNY~~ BNYM Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) ~~The Fund~~ Customer agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by ~~or asserted against~~ Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's performance hereunder, including reasonable ~~fees~~ fees, costs and expenses of counsel incurred by Custodian in a successful defense of claims by ~~the Fund~~Customer; provided however, that ~~the Fund~~ Customer shall not indemnify Custodian for those Losses arising out of Custodian's ~~own negligence~~ gross negligence, fraud or willful ~~misconduct~~misconduct or Custodian’s willful breach of this Agreement. This indemnity shall be a continuing obligation of ~~the Fund~~Customer, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for~~: (a) Any Losses~~ , any losses incurred by ~~the Fund~~ Customer or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the written advice ~~and opinion~~ of external counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. ~~The Fund~~ Customer shall pay to Custodian the fees and charges for its services hereunder as may be specifically agreed upon in writing from time to time and such other fees and charges at Custodian's standard rates for such services as ~~maybe~~ may be applicable. ~~The Fund~~ Customer shall reimburse Custodian for all costs associated with the conversion of ~~the Fund~~Customer's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. ~~The Fund~~ Customer shall also reimburse ~~Custodian, at cost,~~ Custodian for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash ~~account~~ in an Account for any amount payable by ~~the Fund~~ Customer in connection with any and all obligations of ~~the Fund~~ Customer to ~~Custodian~~Custodian arising under this Agreement. In addition to the rights of Custodian under applicable law and other agreements, at any time when ~~the Fund~~ Customer shall not have honored any and all of its obligations to Custodian, Custodian shall have the right without notice to ~~the Fund~~ Customer to retain or set-off, against such obligations of ~~the Fund~~Customer, any Securities or cash Custodian ~~or a BNY Affiliate~~ may directly or indirectly hold for the account of ~~the Fund~~Customer, and any obligations (whether matured or unmatured) that Custodian ~~or a BNY Affiliate~~ may have to ~~the Fund~~ Customer in any ~~currency or Composite Currency Unit~~currency. Any such asset ~~of, or obligation to, the Fund~~ of Customer may be transferred to Custodian ~~and any BNY Affiliate~~ in order to effect the above rights. 8(a) Subject to the terms below, Custodian shall be entitled to conclusively rely upon any Written Instructions or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be duly authorized and delivered. ~~The Fund~~ Customer agrees to that an Authorized Person shall forward to Custodian ~~a Certificate or~~ Written Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. ~~The Fund~~ Customer agrees that the fact that such confirming ~~Certificate or~~ Written Instructions are not received or that a contrary ~~Certificate or contrary~~ Written Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. (b) The Custodian shall have the right to accept and act upon Written Instructions, including funds transfer instructions and Corporate Action Instructions, given pursuant to this Custody Agreement and delivered using Electronic Means; provided, however, that the Customer shall provide to the Custodian a Certificate of Authorized Persons listing Authorized Persons and containing specimen signatures of such Authorized Persons, which Certificate shall be amended by the Customer whenever a person is to be added or deleted from the listing. If the ~~Fund~~ Customer elects to give the Custodian Written Instructions using Electronic Means and the Custodian in its discretion elects to act upon such Written Instructions, the Custodian’s understanding of such Written Instructions shall be deemed controlling. The Customer understands and agrees that the Custodian cannot determine the identity of the actual sender of such Written Instructions and that the Custodian shall conclusively presume that directions that purport to have been sent by an Authorized Person listed on the Certificate of Authorized Persons provided to the Custodian have been sent by such Authorized Person. The Customer shall be responsible for ensuring that only Authorized Persons transmit such Written Instructions to the Custodian and that the Customer and all Authorized Persons are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Customer. The Custodian shall not be liable for any losses, costs or expenses arising directly or indirectly from the Custodian’s reliance upon and compliance with such Written Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Customer agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Written Instructions to the Custodian, including without limitation the risk of the Custodian acting on unauthorized Written Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Written Instructions to the Custodian and that there may be more secure methods of transmitting Written Instructions than the method(s) selected by the Customer; (iii) that the security procedures (if any) to be followed in connection with its transmission of Written Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Custodian immediately upon learning of any compromise or unauthorized use of the security procedures. (c) If Customer elects to transmit Written Instructions or Corporate Action Instructions through an electronic platform offered by Custodian or a BNYM Affiliate, Customer's access to and use thereof shall be subject to any terms and conditions contained in a separate written agreement. Customer shall be responsible for requesting access to any such electronic platform and completing the documentation required for such access and nothing herein shall obligate Custodian to ensure any such access. Should Customer fail to, or elect not to, avail itself of such access, neither Custodian nor any BNYM Affiliate accepts any responsibility whatsoever for any Losses arising as a result of the lack of such access in connection with its services under this Agreement. Notwithstanding any other provision of this Agreement, whenever Custodian is required to deliver any notice or information to Customer under the terms of this Agreement, it may do so by making the relevant notice or information available to Customer via an electronic platform operated by Custodian or a BNYM Affiliate. If Customer elects (with Custodian’s prior consent) to transmit Written Instructions or Corporate Action Instructions through an on-line communications ~~system offered~~ service owned or operated by ~~Custodian~~a third party, ~~the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and~~ Customer agrees that Custodian shall ~~provide user and authorization codes, passwords and authentication keys only to an Authorized Person~~ not be responsible or ~~a person reasonably believed by Custodian to be an Authorized Person~~liable for the reliability or availability of any such service. 9. ~~The books~~ Upon reasonable request and ~~records pertaining to the Fund which are in possession of~~ provided Custodian shall ~~be the property~~ suffer no significant disruption of ~~the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund~~its normal activities, ~~or its authorized representatives,~~ Customer shall have access to ~~such~~ Custodian's books and records relating to the Accounts during Custodian's normal business hours. Upon ~~the~~ reasonable ~~request of the Fund~~request, copies of any such books and records shall be provided ~~by Custodian~~ to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintainedCustomer at Customer's expense. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian will not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement to the extent caused, directly or indirectly, by natural disasters, fire, acts of God, strikes or other labor disputes, work stoppages, acts of war or terrorism, general civil unrest, actual or threatened epidemics, disease, act of any government, governmental authority or police or military authority, declared or threatened state of emergency, legal constraint, the interruption, loss or malfunction of utilities or transportation, communications or computer systems, or any other similar events beyond its reasonable control. Custodian will use commercially reasonable efforts to minimize the effect of any such events. 12. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 2 contracts

Samples: Global Custody Agreement (KKR Infrastructure Conglomerate LLC), Global Custody Agreement (KKR Infrastructure Conglomerate LLC)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian ~~shall be held to a standard~~ must use level of ~~reasonable care~~ care, diligence and prudence in carrying out ~~the provisions of this Agreement; provided, however,~~ duties that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waivedprofessional custodian would exercise under [materially similar] circumstances and prevailing in market where services performed. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against the Fund, except those Losses arising out of Custodian's ’s own negligence or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result of the Custodian~~' s~~ ’s failure to fulfill its duties hereunder. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any Subcustodian (other than a ~~BNY~~ Custodian Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's ’s sole responsibility and liability to the Fund shall be limited to amounts so received from such Subcustodian ( (exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 iv) for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (yv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yivi) subject to Custodian’s obligations under Article II, Section 3(d), for any Losses due to forces beyond the reasonable control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (~~yii~~vii) for the insolvency of any Subcustodian (other than a ~~BNY~~ Custodian Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's ’s failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ viii) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any ~~BNY~~ Custodian Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's ’s own negligence or willful ~~misconduct~~misconduct or for Losses that constitute indirect, special or consequential damages or lost profits. This indemnity shall be a continuing obligation of the Fund, its successors and assigns, notwithstanding the termination of this Agreement. (d) Custodian shall indemnify and hold harmless each Fund from and against any and all costs, expenses, damages, liabilities and claims, and reasonable attorneys’ and accountants’ fees relating thereto, which are sustained or incurred or which may be asserted against such Fund, by reason of or as a result of any action taken or omitted to be taken by a Custodian hereunder; provided, that Custodian shall not indemnify a Fund for costs, expenses, damages, liabilities or claims, unless a court of competent jurisdiction has determined that Custodian had breached a duty hereunder which caused such costs, expenses, damages, liabilities or claims and that in no case shall Custodian indemnify a Fund for costs, expenses, damages, liabilities or claims for indirect, special or consequential damages or lost profits. This indemnity shall be a continuing obligation of the Custodian, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian~~'s receiptor~~ ’s receipt or non-receipt of any such payment, provided that Custodian will notify Fund if amount actually received does not equal an amount specified in Certificate or Instructions; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of the Fund and specifically allocated to a ~~Fund~~ Series are such as properly may be held by the Fund or such Series under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. Custodian shall notify Fund if action to be taken on advice of counsel is inconsistent with this Agreement, any Instructions or any Certificate. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's ’s standard rates for such services as ~~maybe applicable~~may be applicable all as agreed upon in writing from time to time. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's ’s Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse ~~Custodian~~Custodian for actual, ~~at cost~~mutually agreed-upon, ~~for~~ out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to ~~Custodian~~Custodian provided it has notified the Fund of its intent to do so at least ten days in advance. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a ~~BNY~~ Custodian Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a ~~BNY~~ Custodian Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any ~~BNY~~ Custodian Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received ~~or that a contrary Certificate or contrary Instructions are received by Custodian~~ shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's ’s use thereof shall be subject to the Terms and Conditions attached as Appendix J I hereto. If Custodian receives Instructions which appear on their face to have been transmitted by an Authorized Person via (i) computer facsimile, ~~and Custodian shall provide user and~~ email, the Internet or other insecure electronic method, or (ii) secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys, the Fund understands and ~~authentication keys only to an Authorized Person or a person reasonably believed~~ agrees that Custodian cannot determine the identity of the actual sender of such Instructions and that Custodian shall conclusively presume that such Written Instructions have been sent by ~~Custodian to be~~ an Authorized Person, and the Fund shall be responsible for ensuring that only Authorized Persons transmit such Instructions to Custodian. If the Fund elects (with Custodian’s prior consent) to transmit Instructions through an on-line communications service owned or operated by a third party, the Fund agrees that Custodian shall not be responsible or liable for the reliability or availability of any such service. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained by the Custodian as required by the '‘40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's ’s normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, including any SAS 70 reports to the extent made available to the Custodian, and with such reports on its own system of internal accounting control including any SAS 70 reports as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 2 contracts

Samples: Custody Agreement (MTB Group of Funds), Custody Agreement (MTB Funds)

Appears in 2 contracts

Samples: Custody Agreement (Merit Advisors Investment Trust Ii), Custody Agreement (Northern Lights Fund Trust)

Appears in 2 contracts

Samples: Custody Agreement (Solar Senior Capital Ltd.), Custody Agreement (Solar Capital Ltd.)

Appears in 2 contracts

Samples: Custody Agreement (YieldQuest Funds Trust), Custody Agreement (YieldQuest Funds Trust)

CONCERNING CUSTODIAN. (a) The Custodian shall be held to a standard of reasonable care in carrying out the provisions of this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waived. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants~~' fees~~ ’ fees, costs and expenses (collectively, “Losses”), incurred by or asserted against ~~the Fund~~Customer, except those Losses arising out of ~~Custodian's own~~ the gross negligence or willful ~~misconduct~~misconduct of Custodian. Custodian shall have no liability whatsoever for the action or inaction of any ~~Depositories~~ Depository or issuer of Securities. Subject to Section 1(b) below, Custodian’s responsibility with respect to any ~~Foreign Depositories, except in each case~~ Securities or cash held by a Subcustodian is limited to the ~~extent~~ failure on the part of Custodian to exercise reasonable care in the selection or retention of such ~~action or inaction is a direct result~~ Subcustodian in light of prevailing settlement and securities handling practices, procedures and controls in the ~~Custodian' s failure to fulfill its duties hereunder~~relevant market. With respect to any Losses incurred by ~~the Fund~~ Customer as a result of the acts or ~~any failures~~ the failure to act by any Subcustodian (other than a ~~BNY~~ BNYM Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's ’s sole responsibility and liability to ~~the Fund~~ Customer shall be limited to amounts so received from such Subcustodian ( (exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to ~~the Fund~~ Customer or any third party for special, ~~indirect~~ indirect, punitive or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (yii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's failure to fulfill its duties hereunder, any Foreign Depository; or (yiii)l for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or event and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any ~~BNY~~ BNYM Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) ~~The Fund~~ Customer agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance hereunder, including reasonable ~~fees~~ fees, costs and expenses of counsel incurred by Custodian in a successful defense of claims by ~~the Fund~~Customer; provided however, that ~~the Fund~~ Customer shall not indemnify Custodian for those Losses arising out of Custodian~~'s own~~ ’s gross negligence or willful misconduct. This indemnity shall be a continuing obligation of ~~the Fund~~Customer, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for~~: (a) Any Losses~~ , any losses incurred by ~~the Fund~~ Customer or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. ~~The Fund~~ Customer shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's ’s standard rates for such services as ~~maybe~~ may be applicable. ~~The Fund~~ Customer shall reimburse Custodian for all costs associated with the conversion of ~~the Fund's~~ Customer’s Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. ~~The Fund~~ Customer shall also reimburse ~~Custodian, at cost,~~ Custodian for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by ~~the Fund~~ Customer in connection with any and all obligations of ~~the Fund~~ Customer to Custodian, whether or not relating to or arising under this Agreement. In addition to the rights of Custodian under applicable law and other agreements, at any time when ~~the Fund~~ Customer shall not have honored any and all of its obligations to Custodian, Custodian shall have the right without notice to ~~the Fund~~ Customer to retain or set-off, against such obligations of ~~the Fund~~Customer, any Securities or cash Custodian or a ~~BNY~~ BNYM Affiliate may directly or indirectly hold for the account of ~~the Fund~~Customer, and any obligations (whether matured or unmatured) that Custodian or a ~~BNY~~ BNYM Affiliate may have to ~~the Fund~~ Customer in any ~~currency or Composite Currency Unit~~currency. Any such asset of, or obligation to, ~~the Fund~~ Customer may be transferred to Custodian and any ~~BNY~~ BNYM Affiliate in order to effect the above rights. 8(a) Subject to the terms below, Custodian shall be entitled to conclusively rely upon any Written Instructions or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be duly authorized and delivered. ~~The Fund~~ Customer agrees to that an Authorized Person shall forward to Custodian ~~a Certificate or~~ Written Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. ~~The Fund~~ Customer agrees that the fact that such confirming ~~Certificate or~~ Written Instructions are not received or that a contrary ~~Certificate or contrary~~ Written Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. (b) The Custodian shall have the right to accept and act upon Written Instructions, including funds transfer instructions and Corporate Action Instructions, given pursuant to this Custody Agreement and delivered using Electronic Means; provided, however, that the Customer shall provide to the Custodian a Certificate of Authorized Persons listing Authorized Persons and containing specimen signatures of such Authorized Persons, which Certificate shall be amended by the Customer whenever a person is to be added or deleted from the listing. If the ~~Fund~~ Customer elects to give the Custodian Written Instructions using Electronic Means and the Custodian in its discretion elects to act upon such Written Instructions, the Custodian’s understanding of such Written Instructions shall be deemed controlling. The Customer understands and agrees that the Custodian cannot determine the identity of the actual sender of such Written Instructions and that the Custodian shall conclusively presume that directions that purport to have been sent by an Authorized Person listed on the Certificate of Authorized Persons provided to the Custodian have been sent by such Authorized Person. The Customer shall be responsible for ensuring that only Authorized Persons transmit such Written Instructions to the Custodian and that the Customer and all Authorized Persons are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Customer. The Custodian shall not be liable for any losses, costs or expenses arising directly or indirectly from the Custodian’s reliance upon and compliance with such Written Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Customer agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Written Instructions to the Custodian, including without limitation the risk of the Custodian acting on unauthorized Written Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Written Instructions to the Custodian and that there may be more secure methods of transmitting Written Instructions than the method(s) selected by the Customer; (iii) that the security procedures (if any) to be followed in connection with its transmission of Written Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Custodian immediately upon learning of any compromise or unauthorized use of the security procedures. (c) If Customer elects to transmit Written Instructions or Corporate Action Instructions through an electronic platform offered by Custodian or a BNYM Affiliate, Customer’s access to and use thereof shall be subject to any terms and conditions contained in a separate written agreement. Customer shall be responsible for requesting access to any such electronic platform and completing the documentation required for such access and nothing herein shall obligate Custodian to ensure any such access. Should Customer fail to, or elect not to, avail itself of such access, neither Custodian nor any BNYM Affiliate accepts any responsibility whatsoever for any Losses arising as a result of the lack of such access in connection with its services under this Agreement. Notwithstanding any other provision of this Agreement, whenever Custodian is required to deliver any notice or information to Customer under the terms of this Agreement, it may do so by making the relevant notice or information available to Customer via an electronic platform operated by Custodian or a BNYM Affiliate. If Customer elects (with Custodian’s prior consent) to transmit Written Instructions or Corporate Action Instructions through an on-line communications ~~system offered~~ service owned or operated by ~~Custodian~~a third party, ~~the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and~~ Customer agrees that Custodian shall ~~provide user and authorization codes, passwords and authentication keys only to an Authorized Person~~ not be responsible or ~~a person reasonably believed by Custodian to be an Authorized Person~~liable for the reliability or availability of any such service. 9. ~~The books~~ Upon reasonable request and ~~records pertaining to the Fund which are in possession of~~ provided Custodian shall ~~be the property~~ suffer no significant disruption of ~~the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund~~its normal activities, ~~or its authorized representatives,~~ Customer shall have access to ~~such~~ Custodian’s books and records relating to the Accounts during Custodian's ’s normal business hours. Upon ~~the~~ reasonable ~~request of the Fund~~request, copies of any such books and records shall be provided ~~by Custodian~~ to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintainedCustomer at Customer’s expense. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian will not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement to the extent caused, directly or indirectly, by natural disasters, fire, acts of God, strikes or other labor disputes, work stoppages, acts of war or terrorism, general civil unrest, actual or threatened epidemics, disease, act of any government, governmental authority or police or military authority, declared or threatened state of emergency, legal constraint, the interruption, loss or malfunction of utilities or transportation, communications or computer systems, or any other similar events beyond its reasonable control. Custodian will use commercially reasonable efforts to minimize the effect of any such events. 12. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 2 contracts

Samples: Global Custody Agreement (Jefferies Credit Partners BDC Inc.), Global Custody Agreement (Senior Credit Investments, LLC)

Appears in 2 contracts

Samples: Credit Agreement (Nicholas Applegate Fund Inc), Custody Agreement (Strategic Partners Asset Allocation Funds)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held to~~ exercise such good faith, reasonable care, diligence, and prudence as a ~~standard of reasonable care~~ professional custodian for securities would exercise in carrying out ~~the provisions~~ all of this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waivedthese duties and obligations. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against the Fund, except those Losses arising out of Custodian's ’s own negligence or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any ~~Depositories or of any Foreign~~ Depositories, or, except ~~in each case~~ to the extent such action or inaction is a direct result of the Custodian~~' s~~ ’s failure to fulfill its duties hereunder, of any Foreign Depositories. With respect to any Losses incurred by the Fund as a result of the acts or ~~any~~ failures to act by a Subcustodian listed on part 1 of Schedule 1, Custodian shall be liable to the Fund for such Losses, but only to the extent such Losses arise out of or are caused by acts or failure to act by such Subcustodian for which it is liable under the terms of its agreement with Custodian and the laws governing such agreement. With respect to any Losses incurred by the Fund as a result of the acts or omission of a Subcustodian ~~(other than a BNY Affiliate)~~either not listed on part 1 of Schedule 1 or listed on part 2 of Schedule 1, Custodian shall take appropriate action to recover such ~~Losses from such Subcustodian;~~ Losses, and Custodian~~'s sole responsibility and~~ ’s liability ~~to the Fund~~ shall be limited to ~~amounts so received from such Subcustodian ( exclusive~~ the amount recovered net of costs and ~~expenses incurred by Custodian)~~expenses. In no event shall Custodian be liable to the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall ~~Custodian~~ BNY or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 iv) for conclusively presuming that all disbursements of cash directed by the ~~Fund, whether~~ Fund by ~~a Certificate, an Oral Instruction, or~~ an Instruction, are in accordance with Section ~~2(i~~2(j) of Article II hereof; (yv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yivi) for any Losses due to forces beyond the reasonable control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, ~~communications~~ non-internal communication services, but only to the extent beyond Custodian’s reasonable control, and, but only if Custodian is maintaining such back-up system(s) and disaster recovery plan(s) as are required by its regulators and all laws applicable to Custodian, interruption, loss or malfunction of internal communication services or of computer (software ~~and~~ or hardware) services; it being understood that Custodian shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances; (~~yii~~vii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's ’s failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ viii) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall in any way discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance hereunder, including reasonable fees and expenses of ~~counsel incurred by Custodian in a successful defense of claims by the Fund;~~ counsel, provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's ’s own negligence or willful misconduct or for any Losses which constitutes indirect, special, or consequential damages or lost profits or loss of business. Custodian agrees to indemnify the Fund and hold the Fund harmless from and against any and all Losses, including reasonable fees ad expenses of counsel, sustained or incurred by or asserted against the Fund arising out of the Custodian’s negligence or willful misconduct, provided, however, that the Custodian shall not indemnify the Fund for nor be liable for any Losses which constitute indirect, special, or consequential damages or lost profits or loss of business. This indemnity shall be a continuing obligation of the ~~Fund~~Fund and the custodian, ~~its~~ their successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian~~'s receiptor~~ ’s receipt or non-receipt of any such payment; except that Custodian shall notify the Fund of any difference between any amount the Fund has specified in a Certificate or Oral Instructions as the amount to be received and the amount custodian actually receives; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of the Fund and specifically allocated to a ~~Fund~~ Series are such as properly may be held by the Fund or such Series under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's ’s standard rates for such services as ~~maybe~~ may be applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's ’s Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse ~~Custodian, at cost,~~ Custodian for out-~~of-~~of pocket expenses , subject to approval of the Fund, which are a normal incident of the services provided hereunder. 7. With Instructions from an Authorized Person or Oral Instructions, Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the ~~Fund~~ Series to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the ~~Fund~~Series, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency ~~Unit. Any such asset of, or obligation to,~~ Unit and shall notify the Fund ~~may be transferred to Custodian and any BNY Affiliate in order to effect the above rights~~whenever it has exercised such right. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received ~~or that a contrary Certificate or contrary Instructions are received~~ by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's ’s use thereof shall be subject to the Terms and Conditions attached as Appendix J I hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '‘40 Act and the rules thereunder. The Fund, or its authorized representatives, all regulatory authorities whose statutes, laws, rules and regulations are applicable to the Fund shall have access to such books and records during Custodian's ’s normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by ~~the~~ Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian hereby specifically agrees that it will provide any sub-certifications reasonably requested by the Fund in connection with any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any rules or regulations promulgated by the Securities and Exchange Commission thereunder, provided the same do not change BNY’s standard of care. 12. Custodian will also provide those custody related services not already described above that are included in the Service Guidelines established and agreed between the parties as the same may be revised from time to time by mutual agreement of the parties hereto. The Service Guidelines will also govern the timeliness and performance standards for custody related services where specified therein. 13. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 2 contracts

Samples: Custody Agreement (ING Separate Portfolios Trust), Custody Agreement (ING Emerging Markets High Dividend Equity Fund)

CONCERNING CUSTODIAN. (a) The Custodian shall be held to a standard of reasonable care in carrying out the provisions of this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waived. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against ~~the Fund~~Customer, except those Losses arising out of ~~Custodian's own~~ the negligence or willful ~~misconduct~~misconduct of Custodian. Custodian shall have no liability whatsoever for the action or inaction of any ~~Depositories~~ Depository or issuer of Securities. Subject to Section 1(b) below, Custodian’s responsibility with respect to any ~~Foreign Depositories, except in each case~~ Securities or cash held by a Subcustodian is limited to the ~~extent~~ failure on the part of Custodian to exercise reasonable care in the selection or retention of such ~~action or inaction is a direct result~~ Subcustodian in light of prevailing settlement and securities handling practices, procedures and controls in the ~~Custodian' s failure to fulfill its duties hereunder~~relevant market. With respect to any Losses incurred by ~~the Fund~~ Customer as a result of the acts or ~~any failures~~ the failure to act by any Subcustodian (other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's ’s sole responsibility and liability to ~~the Fund~~ Customer shall be limited to amounts so received from such Subcustodian ( (exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to ~~the Fund~~ Customer or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (yii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's failure to fulfill its duties hereunder, any Foreign Depository; or (yiii)l for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or event and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) ~~The Fund~~ Customer agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by ~~the Fund~~Customer; provided however, that ~~the Fund~~ Customer shall not indemnify Custodian for those Losses arising out of Custodian~~'s own~~ ’s negligence or willful misconduct. This indemnity shall be a continuing obligation of ~~the Fund~~Customer, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for~~: (a) Any Losses~~ , any losses incurred by ~~the Fund~~ Customer or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. ~~The Fund~~ Customer shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's ’s standard rates for such services as ~~maybe~~ may be applicable. ~~The Fund~~ Customer shall reimburse Custodian for all costs associated with the conversion of ~~the Fund's~~ Customer’s Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. ~~The Fund~~ Customer shall also reimburse ~~Custodian, at cost,~~ Custodian for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by ~~the Fund~~ Customer in connection with any and all obligations of ~~the Fund~~ Customer to Custodian, whether or not relating to or arising under this Agreement. In addition to the rights of Custodian under applicable law and other agreements, at any time when ~~the Fund~~ Customer shall not have honored any and all of its obligations to Custodian, Custodian shall have the right without notice to ~~the Fund~~ Customer to retain or set-off, against such obligations of ~~the Fund~~Customer, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of ~~the Fund~~Customer, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to ~~the Fund~~ Customer in any ~~currency or Composite Currency Unit~~currency. Any such asset of, or obligation to, ~~the Fund~~ Customer may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8(a) Subject to the terms below, Custodian shall be entitled to rely upon any Written or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be duly authorized and delivered. ~~The Fund~~ Customer agrees to that an Authorized Person shall forward to Custodian ~~a Certificate or~~ Written Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian~~. The Fund~~ , Customer agrees that the fact that such confirming ~~Certificate or~~ Written Instructions are not received or that a contrary ~~Certificate or contrary~~ Written Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. (b) If Custodian receives Written Instructions which appear on their face to have been transmitted by an Authorized Person via (i) computer facsimile, email, the Internet or other insecure electronic method, or (ii) secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys, Customer understands and agrees that Custodian cannot determine the identity of the actual sender of such Written Instructions and that Custodian shall conclusively presume that such Written Instructions have been sent by an Authorized Person. Customer shall be responsible for ensuring that only Authorized Persons transmit such Written Instructions to Custodian and that all Authorized Persons treat applicable user and authorization codes, passwords and/or authentication keys with extreme care. (c) Customer acknowledges and agrees that it is fully informed of the protections and risks associated with the various methods of transmitting Written Instructions to Custodian and that there may be more secure methods of transmitting Written Instructions than the method(s) selected by Customer. Customer agrees that the security procedures (if any) to be followed in connection with its transmission of Written Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances. (d) If ~~the Fund~~ Customer elects to transmit Written Instructions through an on-line communication system offered by Custodian, Customer’s use thereof shall be subject, once executed, to the Terms and Conditions attached hereto as Appendix I. If Customer elects (with Custodian’s prior consent) to transmit Written Instructions through an on-line communications ~~system offered~~ service owned or operated by ~~Custodian~~a third party, ~~the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and~~ Customer agrees that Custodian shall ~~provide user and authorization codes, passwords and authentication keys only to an Authorized Person~~ not be responsible or ~~a person reasonably believed by Custodian to be an Authorized Person~~liable for the reliability or availability of any such service. 9. ~~The books~~ Upon reasonable request and ~~records pertaining to the Fund which are in possession of~~ provided Custodian shall ~~be the property~~ suffer no significant disruption of ~~the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund~~its normal activities, ~~or its authorized representatives,~~ Customer shall have access to ~~such~~ Custodian’s books and records relating to the Accounts during Custodian's ’s normal business hours. Upon ~~the~~ reasonable ~~request of the Fund~~request, copies of any such books and records shall be provided ~~by Custodian~~ to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintainedCustomer at Customer’s expense. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; it being understood that Custodian shall use its best efforts to resume performance as soon as practicable under the circumstances. 12. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this ~~Agreement,~~ Agreement and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 2 contracts

Samples: Global Custody Agreement, Global Custody Agreement (STREAM S&P Dynamic Roll Global Commodities Fund)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held to~~ exercise such good faith, reasonable care, diligence and prudence as a ~~standard of reasonable care~~ professional custodian for Securities would exercise in carrying out ~~the provisions~~ all of its duties and obligations under this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waived. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against the Fund, except those Losses arising out of Custodian's ’s own negligence or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result of the Custodian~~' s~~ ’s failure to fulfill its duties ~~hereunder~~hereunder or act in accordance with the standard of care provided in this Article VIII. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any ~~Subcustodian (other than a BNY Affiliate)~~Subcustodian, Custodian shall take appropriate action to recover such Losses from such Subcustodian; and ~~Custodian's sole~~ Custodian shall have no more or less responsibility ~~and~~ or liability to the Fund than such Subcustodian has to the Custodian, and then only for such Losses as Custodian is able to recover from Subcustodian, provided that the Custodian has selected and retained any such Subcustodian in accordance with the Custodian’s standard of care under this Agreement. At the election of the Fund, it shall be ~~limited~~ entitled to ~~amounts so received from~~ be subrogated to the rights of Custodian with respect to any claims against any Subcustodian as a consequence of any such ~~Subcustodian ( exclusive of costs~~ Losses if and ~~expenses incurred by Custodian)~~to the extent that the Fund has not been made whole for such Losses. In no event shall Custodian be liable to the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively ~~presuming~~ presuming, in the absence of actual knowledge to the contrary, that all Instructions are given only by person(s) duly authorized; (00 iv) for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (yv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yivi) for any Losses due to forces beyond the reasonable control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, but only to the extent beyond Custodian’s reasonable control and only if Custodian is maintaining such back-up system(s) and disaster recovery plan(s) as are required by its regulators and all laws and regulations applicable to Custodian or otherwise customary for entities performing the types of duties Custodian is obligated to perform under this Agreement, and it being understood that Custodian shall use commercially reasonable efforts to resume performance as soon as practicable under the circumstances; (~~yii~~vii) for the insolvency of any Subcustodian (other than a ~~BNY~~ Custodian Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's ’s failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ viii) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any ~~BNY~~ Custodian Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's ’s own negligence or willful ~~misconduct~~misconduct or for any Losses that constitute indirect, special or consequential damages or lost profits or loss of business. This indemnity shall be a continuing obligation of the Fund, and its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian~~'s receiptor~~ ’s receipt or non-receipt of any such payment, except that Custodian shall endeavor to notify the Fund of any difference between any amount the Fund has specified in a Certificate or Oral Instruction as the amount to be received and the amount Custodian actually receives; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a the Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ (at its own expense) and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's ’s standard rates for such services as ~~maybe~~ may be applicable. The Fund shall reimburse Custodian for all actual costs associated with the conversion of the Fund's ’s Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse ~~Custodian, at cost,~~ Custodian for out-of-pocket ~~expenses~~ expenses, subject to approval of the Fund, which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of ~~the~~ that Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when ~~the~~ such Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to ~~the~~ that Fund to retain or set-off, against such obligations of ~~the~~ such Fund, any Securities or cash Custodian or a ~~BNY~~ Custodian Affiliate may directly or indirectly hold for the account of the Fund on behalf of such Fund, and any obligations (whether matured or unmatured) that Custodian or a ~~BNY~~ Custodian Affiliate may have to the Fund on behalf of such Fund in any currency or Composite Currency ~~Unit~~Unit and shall notify the Fund whenever it has exercised such right. Any such asset of, or obligation to, ~~the~~ such Fund may be transferred to Custodian and any ~~BNY~~ Custodian Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian prior to the receipt of such contrary Certificate or contrary Instruction by the relevant representative of Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's ’s use thereof shall be subject to the Terms and Conditions attached as Appendix J I hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. If Custodian receives Instructions which appear on their face to have been transmitted by an Authorized Person, and which Custodian reasonably believes to have been transmitted by an Authorized Person, via (i) computer facsimile, email, the Internet or other insecure electronic method, or (ii) secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys, the Fund understands and agrees that Custodian cannot determine the identity of the actual sender of such Instructions and that Custodian shall conclusively presume that such Written Instructions have been sent by an Authorized Person, and the Fund shall be responsible for ensuring that only Authorized Persons transmit such Instructions to Custodian. If the Fund elects (with Custodian’s prior consent) to transmit Instructions through an on-line communications service owned or operated by a third party, the Fund agrees that Custodian shall not be responsible or liable for the reliability or availability of any such service. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '‘40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's ’s normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time~~. 11~~. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian agrees that it will provide any sub-certifications reasonably requested by the Fund in connection with ~~this Agreement~~any certification required by the Xxxxxxxx-Xxxxx Act of 2002 or any applicable rules or regulations promulgated thereunder, provided the same do not change Custodian’s standard of care.

Appears in 2 contracts

Samples: Master Custody Agreement (Zweig Total Return Fund Inc), Master Custody Agreement (Phoenix Edge Series Fund)

Appears in 2 contracts

Samples: Custody Agreement (Advisorone Funds), Custody Agreement (Advisorone Funds)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held to~~ exercise such good faith, reasonable care, diligence, and prudence as a ~~standard of reasonable care~~ professional custodian for securities would exercise in carrying out ~~the provisions~~ all of this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waivedthese duties and obligations. ~~Except as otherwise expressly provided herein,~~ Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' and accountants' fees (collectively, “"Losses”"), incurred by or asserted against the Fund, except those Losses arising out of Custodian's own negligence or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result of the Custodian~~' s~~ 's failure to fulfill its duties hereunder. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any Subcustodian (other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's sole responsibility and liability to the Fund shall be limited to amounts so received from such Subcustodian ( (exclusive of costs and expenses incurred by Custodian), provided, however, that in no way shall such provision derogate from the responsibilities of BNY in its capacity as the Fund's Foreign Custody Manager under the Foreign Custody Manager Agreement to determine that the contract with such Subcustodian includes indemnification or insurance arrangements (or any combination) that will adequately protect the Fund against the risk of loss of Securities or cash held in accordance with the contract. In no event shall Custodian be liable to the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian ~~or any Subcustodian~~ be liable~~: (i)~~ : i. for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person~~; (~~; ii) . for acting in accordance with Instructions without reviewing ~~the~~ same~~; (~~; iii) . for conclusively presuming that all Instructions are given only by person(s) duly authorized~~; (00~~ ; iv. for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section ~~2(i~~2(h) of Article II hereof; (y) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) ; v. for any Losses due to forces beyond the reasonable control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, ~~communications~~ non-internal communication services or, but only to the extent beyond Custodian's reasonable control, and, but only if Custodian is maintaining such back-up system(s) and disaster recovery plan(s) as are required by its regulators and all laws applicable to Custodian, interruption, loss, or malfunction of internal communication services or of computer (software ~~and~~ or hardware) services; ~~(yii)~~ and Custodian shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances; vi. for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such ~~action or inaction~~ liability is a direct result of the Custodian's failure to fulfill its duties hereunder, any Foreign Depository; ~~or (yiii)l~~ or vii. for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall in any way discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against ~~Custodian~~ Custodian, by reason of or as a result of any action or inaction, or arising out of Custodian's performance hereunder, including reasonable fees and expenses of ~~counsel incurred by Custodian in a successful defense of claims by the Fund; provided~~ counsel, provided, however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's own negligence or willful misconduct or to any Losses which constitutes indirect, special, or consequential damages or lost profits or loss of business. Custodian agrees to indemnify the Fund and hold the Fund harmless from and against any and all Losses, including reasonable fees and expenses of counsel, sustained or incurred by or asserted against the Fund arising out of the Custodian's negligence or willful misconduct, provided, however, that the Custodian shall not indemnify the Fund for any Losses which constitutes indirect, special, or consequential damages or lost profits or loss of business. This indemnity shall be a continuing obligation of the ~~Fund~~Fund and the Custodian, ~~its~~ their successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or (except as hereinafter provided) to notify the Fund of Custodian's ~~receiptor~~ receipt or non-receipt of any such payment, except Custodian shall notify the Fund of any difference between any amount the Fund has specified in a Certificate or Instructions as the amount to be received and the amount Custodian actually receives; or (h) Whether any Securities at any time delivered to, or held by it ~~or by any Subcustodian,~~ for the account of the Fund and specifically allocated to a ~~Fund~~ Series are such as properly may be held by the Fund or such Series under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as ~~maybe~~ may be applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse ~~Custodian, at cost,~~ Custodian for out-of-pocket ~~expenses~~ expenses, subject to approval of the Fund, which are a normal incident of the services provided hereunder. 7. With Instructions from an Authorized Person or Oral Instructions, Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency ~~Unit. Any such asset of, or obligation to,~~ Unit and shall notify the Fund ~~may be transferred to Custodian and any BNY Affiliate in order to effect the above rights~~whenever it has exercised such right. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.to

Appears in 2 contracts

Samples: Custody Agreement (E Trade Funds), Custody Agreement (E Trade Funds)

Appears in 2 contracts

Samples: Custody Agreement (Whitehall Funds Trust), Custody Agreement (Gabelli Westwood Funds)

Appears in 2 contracts

Samples: Custody Agreement (TDAX Funds, Inc.), Custody Agreement (Realty Funds, Inc.)

CONCERNING CUSTODIAN. (a) The Custodian shall be held to a standard of reasonable care in carrying out the provisions of this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waived. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' and accountants' fees (collectively, “"Losses”"), incurred by or asserted against the ~~Fund~~Trust or a Customer, except those Losses arising out of ~~Custodian's own~~ the negligence or willful ~~misconduct~~misconduct of Custodian. Custodian shall have no liability whatsoever for the action or inaction of any ~~Depositories~~ Depository or issuer of Securities. Subject to Section 1(b) below, Custodian's responsibility with respect to any ~~Foreign Depositories, except in each case~~ Securities or cash held by a Subcustodian is limited to the ~~extent~~ failure on the part of Custodian to exercise reasonable care in the selection or retention of such ~~action or inaction is a direct result~~ Subcustodian in light of prevailing settlement and securities handling practices, procedures and controls in the ~~Custodian' s failure to fulfill its duties hereunder~~relevant market. With respect to any Losses incurred by the ~~Fund~~ Trust or a Customer as a result of the acts or ~~any failures~~ the failure to act by any Subcustodian (other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and, provided that Custodian has exercised reasonable care in the selection and retention of such Subcustodian as provided for in the preceding sentence, Custodian's sole responsibility and liability to ~~the Fund~~ Customer shall be limited to amounts so received from such Subcustodian ( (exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to ~~the Fund~~ Customer or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (yii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's failure to fulfill its duties hereunder, any Foreign Depository; or (yiii)l for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or event and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The ~~Fund~~ Trust on behalf of each Customer agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by ~~the Fund~~Customer; provided however, that the ~~Fund~~ Trust or a Customer shall not indemnify Custodian for those Losses arising out of Custodian's ~~own~~ negligence or willful misconduct. This indemnity shall be a continuing obligation of the ~~Fund~~Trust on behalf of each Customer, its successors and assigns, notwithstanding the termination of this Agreement. (d) Custodian shall indemnify and hold harmless the Trust and each Customer from and against any and all reasonable attorneys’ fees related to claims, where such claims result in liability to the Trust or a Customer and such liability has been finally determined by an arbiter of competent jurisdiction to be directly caused by Custodian’s failure to discharge its duties in accordance with its standard of care as set forth hereunder. This indemnity shall be a continuing obligation of Custodian, its successors and assigns, notwithstanding the termination of this Agreement. (e) If any action, suit or proceeding (each, a “Proceeding”) is brought against either party to this Agreement (an “Indemnified Party”) in respect of which indemnity may be sought against the other party (the “Indemnifying Party”) pursuant to the foregoing paragraphs, the Indemnified Party shall promptly notify the Indemnifying Party in writing of the institution of such Proceeding and the Indemnifying Party shall have the right, by providing notice to the Indemnified Party within twenty (20) Business Days thereafter, to assume the defense of such Proceeding, including the employment of counsel reasonably satisfactory to the Indemnified Party and payment of all fees and expenses; provided, however, that the omission to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability which it may have to the Indemnified Party except to the extent that it has been materially prejudiced by such failure and has not otherwise learned of such Proceeding. If the Indemnifying Party assumes the defense of the Proceeding, the Indemnified Party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Indemnified Party unless the employment of such counsel shall have been authorized in writing by the Indemnifying Party in connection with the defense of such Proceeding or the Indemnifying Party shall not have, within a reasonable period of time in light of the circumstances, employed counsel to have charge of the defense of such Proceeding or the Indemnified Party shall have reasonably concluded that there may be defenses available to it or them which are different from, additional to or in conflict with those available to the Indemnifying Party (in which case the Indemnifying Party shall not have the right to direct the defense of such Proceeding on behalf of the Indemnified Party), in any of which events such fees and expenses shall be borne by the Indemnifying Party and paid as incurred (it being understood, however, that the Indemnifying Party shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel) in any one Proceeding or series of related Proceedings in the same jurisdiction representing the indemnified parties who are parties to such Proceeding). The Indemnifying Party shall not be liable for any settlement of any Proceeding effected without the Indemnifying Party’s written consent but if settled with the Indemnifying Party’s written consent, the Indemnifying Party agrees to indemnify and hold harmless the Indemnified Party from and against any loss or liability by reason of such settlement. Notwithstanding the foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party to reimburse the Indemnified Party for fees and expenses of counsel as contemplated by the second sentence of this section 6.4, then the Indemnifying Party agrees that it shall be liable for any settlement of any Proceeding effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such Indemnifying Party of the aforesaid request, (ii) such Indemnifying Party shall not have fully reimbursed the Indemnified Party in accordance with such request prior to the date of such settlement and (iii) such Indemnified Party shall have given the Indemnifying Party at least 30 days’ prior notice of its intention to settle. The Indemnifying Party shall not, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened Proceeding in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding and does not include an admission of fault, culpability or a failure to act, by or on behalf of such Indemnified Party. 2. Without limiting the generality of and subject to the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for~~: (a) Any Losses~~ , any losses incurred by ~~the Fund~~ a Customer or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. At any time Custodian ~~may~~may apply to any officer of the Trust or its sponsor for instructions, and may seek the advice of outside counsel to the Trust (which instructions or advice shall not be unreasonably withheld) with respect to ~~questions of law specifically regarding an Account~~any matter arising in connection with the services to be performed by Custodian under this Agreement, ~~obtain the advice~~ and ~~opinion of counsel to the independent trustees of a Fund~~ Custodian and its agents or ~~other counsel that is mutually agreed upon by the Funds and the Custodian~~ subcontractors shall not be liable and shall be ~~fully protected with respect to anything done~~ indemnified by the Trust for any action taken or omitted by it in ~~good faith~~ reliance upon such instructions or advice (except for actions or omissions by Custodian taken with negligence or willful misconduct). An application by Custodian for instructions or advice in ~~conformity~~ accordance with this Section VI.3 shall set forth in writing any action proposed to be taken or omitted to be taken by Custodian with respect to its duties or obligations under this Agreement and the date on and/or after which such action shall be taken (which date shall allow an amount of time for the Trust’s or its counsel’s consideration of the application that is reasonable under the circumstances), and the Bank shall not be liable for any action taken or omitted to be taken in accordance with a proposal included in any such application on or after the date specified therein unless, prior to taking or omitting to take any such action, Custodian has received written instructions or advice in response to such application specifying the action to be taken or omitted or has received written notice that the Trust or its counsel is reasonably declining to provide such instructions or advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. ~~The Fund~~ Each Customer shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as ~~maybe~~ may be applicable. ~~The Fund~~ A Customer shall reimburse Custodian for all costs associated with the conversion of ~~the Fund~~Customer's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. ~~The Fund~~ Each Customer shall also reimburse ~~Custodian, at cost,~~ Custodian for out-of-pocket expenses which are a normal incident of the services provided ~~hereunder~~hereunder with respect to that Customer. 7. Custodian has the right to debit any cash account for any amount payable by ~~the Fund~~ a Customer in connection with any and all obligations of ~~the Fund~~ Customer to Custodian, whether or not relating to or arising under this Agreement. In addition to the rights of Custodian under applicable law and other agreements, at any time when ~~the Fund~~ Customer shall not have honored any and all of its obligations to Custodian, Custodian shall have the right without notice to ~~the Fund~~ Customer to retain or set-off, against such obligations of ~~the Fund~~Customer, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of ~~the Fund~~that Customer, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to ~~the Fund~~ that Customer in any ~~currency or Composite Currency Unit~~currency. Any such asset of, or obligation to, ~~the Fund~~ a Customer may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8(a) Subject to the terms below, Custodian shall be entitled to rely upon any Written or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be duly authorized and delivered. The ~~Fund~~ Trust, on behalf of each Customer, agrees to that an Authorized Person shall forward to Custodian ~~a Certificate or~~ Written Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The ~~Fund~~ Trust, on behalf of each Customer, agrees that the fact that such confirming ~~Certificate or~~ Written Instructions are not received or that a contrary ~~Certificate or contrary~~ Written Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. (b) If Custodian receives Written Instructions which appear on their face to have been transmitted by an Authorized Person via (i) computer facsimile, email, the Internet or other insecure electronic method, or (ii) secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys, Customer understands and agrees that Custodian cannot determine the identity of the actual sender of such Written Instructions and that Custodian shall conclusively presume that such Written Instructions have been sent by an Authorized Person. Customer shall be responsible for ensuring that only Authorized Persons transmit such Written Instructions to Custodian and that all Authorized Persons treat applicable user and authorization codes, passwords and/or authentication keys with reasonable care. (c) The Trust, on behalf of each Customer, acknowledges and agrees that it is fully informed of the protections and risks associated with the various methods of transmitting Written Instructions to Custodian and that there may be more secure methods of transmitting Written Instructions than the method(s) selected by a Customer. The Trust, on behalf of each Customer, agrees that the security procedures (if any) to be followed in connection with its transmission of Written Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances. (d) If ~~the Fund~~ a Customer elects to transmit Written Instructions through an on-line ~~communications~~ communication system offered by Custodian, the ~~Fund~~Customer's use thereof shall be subject to the Terms and Conditions attached hereto as Appendix ~~J hereto~~I. If a Customer elects (with Custodian’s prior consent) to transmit Written Instructions through an on-line communications service owned or operated by a third party, ~~and~~ the Trust, on behalf of such Customer, agrees that Custodian shall ~~provide user and authorization codes, passwords and authentication keys only to an Authorized Person~~ not be responsible or ~~a person reasonably believed by Custodian to be an Authorized Person~~liable for the reliability or availability of any such service. 9. ~~The books~~ Upon reasonable request and ~~records pertaining to the Fund which are in possession of~~ provided Custodian shall be suffer no significant disruption of its normal activities, the ~~property~~ Trust, on behalf of ~~the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives~~each Customer, shall have access to ~~such~~ Custodian's books and records relating to the Accounts during Custodian's normal business hours. Upon ~~the~~ reasonable ~~request of the Fund~~request, copies of any such books and records shall be provided ~~by Custodian~~ to the ~~Fund or its authorized representative. Upon the reasonable request~~ Trust, on behalf of ~~the Fund~~each Customer, ~~Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained~~at each Customer's expense. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required to be supplied by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian represents that it has established and implemented a disaster recovery plan and back-up system reasonably designed to satisfy the requirements of all applicable law, rules, and regulations and which is reasonable under the circumstances. Provided that the foregoing representation has remained true and correct at the time of a failure as contemplated in this section, Custodian shall not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions, it also being understood that Custodian shall use its best efforts to resume performance as soon as practicable under the circumstances. 12. Custodian shall have no duties or responsibilities whatsoever in connection with the services to be provided under this Agreement except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 2 contracts

Samples: Global Custody Agreement (Teucrium Commodity Trust), Global Custody Agreement (Teucrium Commodity Trust)

Appears in 2 contracts

Samples: Custody Agreement (Columbia ETF Trust), Custody Agreement (Grail Advisors ETF Trust)

Appears in 2 contracts

Samples: Custody Agreement (BlackRock Alternatives Allocation FB Portfolio LLC), Custody Agreement (BlackRock Alternatives Allocation Portfolio LLC)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held~~ exercise the due care expected of a professional custodian for hire with respect to ~~a standard of reasonable care~~ the Securities in ~~carrying out the provisions of this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement~~ its possession or ~~imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waived~~control. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or ~~claims,~~ claims (including attorneys' and ~~accountants~~accounts' ~~fees (collectively, “Losses”),~~ fees) incurred by or asserted against ~~the Fund~~Customer, except those ~~Losses~~ costs, expenses, damages, liabilities or claims arising out of the negligence, fraud or wilful misconduct of Custodian~~'s own negligence or willful misconduct~~. Custodian shall have no ~~liability whatsoever~~ obligation hereunder for ~~the~~ costs, expenses, damages, liabilities or claims (including attorneys' or accounts' fees) which are sustained or incurred by reason of any action or inaction of by the Book-Entry System or any ~~Depositories or of any Foreign Depositories~~Depository, ~~except in each case to the extent~~ unless such action or inaction is ~~a direct result of the Custodian' s failure to fulfill its duties hereunder. With respect to any Losses incurred~~ caused by the ~~Fund as a result~~ negligence, fraud or wilful misconduct of ~~the acts or any failures to act by any Subcustodian (other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and~~ Custodian~~'s sole responsibility and liability to the Fund shall be limited to amounts so received from such Subcustodian ( exclusive of costs and expenses incurred by Custodian)~~. In no event shall Custodian be liable to ~~the Fund~~ Customer or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (yii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's failure to fulfill its duties hereunder, any Foreign Depository; or (yiii)l for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or event and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund Customer agrees to indemnify Custodian and hold Custodian harmless from and against any and all ~~Losses~~ costs, expenses, damages, liabilities and claims (including reasonable attorneys' fees and accounts' fees), sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by ~~the Fund~~Customer; ~~provided however~~provided, that ~~the Fund~~ Customer shall not indemnify Custodian for those ~~Losses~~ costs, expenses, damages, liabilities or claims arising out of Custodian's ~~own negligence~~ negligence, fraud or ~~willful~~ wilful misconduct. This indemnity shall be a continuing obligation of ~~the Fund~~Customer, its successors and assigns, notwithstanding the termination of this Agreement. (c) If any loss of Securities arises out of the negligence, fraud or wilful misconduct of Custodian, or if any loss of definitive Securities arises out of the (I) negligence or dishonesty of Custodian's officers and employees, or (ii) burglary, robbery, holdup, theft or mysterious disappearance, including loss by damage or destruction (while the definitive Securities are in Custodian's physical possession), Custodian shall promptly replace such Securities with like kind and quality, together with all rights and privileges pertaining to such Securities or, if acceptable to Customer, deliver the cash equivalent to the extent of the fair market value of the Securities as of the date of discovery of such loss. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for~~: (a) Any Losses~~ , any losses incurred by ~~the Fund~~ Customer or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid U.S. Securities, or U.S. Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fundencumbrance. 3. Custodian may, with respect to questions of law ~~specifically regarding an Account~~related to this Agreement and Custodian's performance hereunder, obtain the advice ~~and opinion~~ of ~~counsel to~~ counsel, at the ~~independent trustees~~ expense of ~~a Fund or other counsel that~~ Customer if prior approval is ~~mutually agreed upon by the Funds and the~~ received from Customer. Custodian ~~and~~ shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on U.S. Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. ~~The Fund~~ Customer shall pay to Custodian the fees ~~and charges as may be specifically agreed upon~~ set forth in Schedule I attached hereto, such fees to remain in effect for a period of two years from ~~time to time and such other fees and charges at Custodian's standard rates for such services as maybe applicable~~the date of this Agreement. ~~The Fund~~ Customer shall reimburse Custodian for all costs associated with the conversion of ~~the Fund~~Customer's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. ~~The Fund shall also reimburse Custodian, at cost,~~ Custodian hereby waives all customary fees for ~~out-of-pocket expenses which are a normal incident~~ services performed in conjunction with the initial conversion of Customer's Securities hereunder and the ~~services provided hereunder~~transfer of Securities and records kept in connection with such Securities initially converted. 7. Custodian ~~has the right~~ shall be entitled to ~~debit~~ rely upon any ~~cash account for any amount payable~~ Written or Oral Instruction actually received by the Fund in connection with any and all obligations of the Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and ~~any BNY Affiliate in order~~ reasonably believed by Custodian to ~~effect the above rights. 8~~be duly authorized and delivered. ~~The Fund~~ Customer agrees to forward to Custodian ~~a Certificate or~~ Written Instructions confirming Oral Instructions by the close of business of ~~the~~ same day that such Oral Instructions are given to Custodian. ~~The Fund~~ Customer agrees that the fact that such confirming ~~Certificate or~~ Written Instructions are not received or that a contrary ~~Certificate or contrary~~ Written Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral ~~Instructions~~ Instruction and effected by Custodian. If ~~the Fund~~ Customer elects to transmit Written Instructions through an on-line ~~communications~~ communication system offered by Custodian, ~~the Fund~~Customer's use thereof shall be subject to the Terms and Conditions attached hereto as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person.I. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during (a) During Custodian's normal business ~~hours~~hours upon receipt of reasonable notice from Customer, any officer or employee of the Customer, any independent account(s) selected by the Customer and any person designated by any regulatory authority having jurisdiction over Customer shall be entitled to examine on Custodian's premises. Securities held by Custodian on its premises and the Custodian's records regarding Securities held hereunder deposited with entities authorized to hold Securities in accordance with Article III, Section I hereof, but only upon Customer's furnishing Custodian with properly authorized instructions to that effect, provided, such examination shall be consistent with Custodian's obligations of confidentiality to other parties. Custodian's costs and expenses in facilitating such examinations shall be borne by Customer, provided that such costs and expenses are not deemed to be Custodian's costs in providing Customer with documents it is otherwise obligated to provide Customer hereunder. (b) Custodian shall, subject to restrictions under applicable law, provide for itself and seek to obtain from any entity with which Custodian maintains the physical possession of any of the Securities in the Account such records of such entity relating to the Account as may be reasonably required by the Customer or its agents in connection with an internal examination by the Customer of its own affairs. Upon ~~the~~ reasonable request ~~of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund~~from Customer, Custodian shall ~~provide in hard copy~~ use its best efforts to furnish to Customer such reports (or ~~on computer disc any records included in any~~ portions thereof) of the external auditors of each such ~~delivery which are maintained by Custodian on a computer disc, or are similarly maintained~~entity as related directly to such entity's system of internal accounting controls applicable to its duties under its agreement with Custodian. 109. It is understood that Custodian is authorized to supply any information regarding the ~~Accounts~~ Account which is required by any law, regulation or rule now or hereafter in effect. 10. ~~The~~ Custodian shall ~~provide~~ not be responsible or liable for any failure or delay in the ~~Fund with any report obtained~~ performance its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; it being understood that Custodian shall use its best efforts to resume performance as soon as practicable under the ~~Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time~~circumstances. 11. Custodian may enter into subcontracts, agreements and understands with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. 12. Custodian shall notify Customer promptly of missing Securities which could effect the sale, redemption or other payments to Customer related to such missing Securities. Custodian shall notify Customer of any position shortages older than 30 days in any Security held by Customer. 13. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 2 contracts

Samples: Custody Agreement (Separate Account Ny-B of First Golden Amer Life Ins Co of Ny), Custody Agreement (First Golden American Life Insurance Co of New York)

CONCERNING CUSTODIAN. ~~(a) The~~ Custodian shall be ~~held~~ paid as compensation for its services pursuant to ~~a standard of reasonable care~~ this Agreement such compensation as may from time to time be agreed upon in ~~carrying out~~ writing between the ~~provisions~~ two parties. Until modified in writing, such compensation shall be as set forth in Exhibit A attached hereto Commission. If the Funds elect to terminate this Agreement prior to the third anniversary of this Agreement~~; provided~~, ~~however, that~~ the Funds agree to reimburse Agent for the difference between the standard fee schedule and the discounted fee schedule agreed to between the parties. Custodian shall ~~be held to different standard~~ exercise reasonable care and diligence, act in good faith and use its best efforts within reasonable limits in the performance of ~~care of imposed by any other provision of~~ its duties under this ~~Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waived~~agreement. ~~Except as otherwise expressly provided herein,~~ Custodian shall not be liable for any ~~costs~~action taken in good faith upon any officers' certificate herein described or certified copy of any resolution of the Board, and may rely on the genuineness of any such document which it may in good faith believe to have been validly executed. The Funds agree to indemnify and hold harmless Custodian and its nominee from all taxes, charges, expenses, ~~damages~~assessments, claims and liabilities (including reasonable counsel fees) incurred or ~~claims, including attorneys' and accountants' fees (collectively, “Losses”), incurred~~ assessed against it or by ~~or asserted against~~ its nominee in connection with the ~~Fund~~performance of this Agreement, except ~~those Losses arising out of Custodian~~such as may arise from its or its nominee's own ~~negligence~~ negligent action, negligent failure to act or willful misconduct. Custodian ~~shall have no liability whatsoever~~ is authorized to charge any account of the Funds for such items. In the ~~action or inaction~~ event of any ~~Depositories~~ advance of cash for any purpose made by Custodian resulting from orders or ~~of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result~~ instructions of the Custodian' s failure to fulfill its duties hereunder. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any Subcustodian (other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's sole responsibility and liability to the Fund shall be limited to amounts so received from such Subcustodian ( exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to the Fund or any third party for special, indirect or consequential damagesFunds, or ~~lost profits~~ in the event that Custodian or ~~loss of business~~its nominee shall incur or be assessed any taxes, ~~arising~~ charges, expenses, assessments, claims or liabilities in connection with the performance of this Agreement, ~~nor shall Custodian~~ except such as may arise from its or ~~any Subcustodian be liable: (i) for acting in accordance with any Certificate~~ its nominee's own negligent action, negligent failure to act or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (y) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (yii) for the insolvency of any Subcustodian (other than a BNY Affiliate)willful misconduct, any ~~Depository, or, except to the extent such action or inaction is a direct result of the Custodian's failure to fulfill its duties hereunder,~~ property at any Foreign Depository; or (yiii)l for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or event and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be time held for the account of the ~~Fund, and~~ Funds shall be security therefore. Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify ~~Custodian~~ and hold ~~Custodian~~ harmless the Funds from all charges, expenses, assessments, and claims/liabilities (including counsel fees) incurred or assessed against ~~any and all Losses sustained or incurred by or asserted against Custodian by reason~~ it in connection with the performance of or this agreement, except such as ~~a result of any action or inaction~~may arise from the Funds' own negligent action, ~~or arising out of Custodian's performance hereunder~~negligent failure to act, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's own negligence or willful misconduct~~. This indemnity shall be a continuing obligation of the Fund, its successors and assigns, notwithstanding the termination of this Agreement~~. 2. Without limiting the generality of the foregoing, Custodian sep be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice and opinion of counsel to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as maybe applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse Custodian, at cost, for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 2 contracts

Samples: Custodian Agreement (Hennessy Mutual Funds Inc), Custodian Agreement (O Shaughnessy Funds Inc)

Appears in 2 contracts

Samples: Custody Agreement (Grosvenor Registered Multi-Strategy Fund (Ti 2), LLC), Custody Agreement (Grosvenor Registered Multi-Strategy Fund (Ti 1), LLC)

Appears in 2 contracts

Samples: Custody Agreement (Boyar Value Fund Inc), Custody Agreement (YieldQuest Funds Trust)

Appears in 2 contracts

Samples: Custody Agreement (Spinnaker ETF Trust), Custody Agreement (Spinnaker ETF Trust)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held to a standard of~~ exercise reasonable care and diligence in carrying out ~~the provisions~~ all of its duties and obligations under this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waived. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against the ~~Fund~~Funds, except those Losses arising out of Custodian~~'s own negligence~~ ’s own, or any Custodian Affiliate’s negligence, bad faith or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result of the Custodian~~' s~~ ’s failure to fulfill its duties hereunder. With respect to any Losses incurred by ~~the~~ a Fund as a result of the acts or any failures to act by any Subcustodian (other than a ~~BNY~~ BNYM Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's ’s sole responsibility and liability to the applicable Fund shall be limited to amounts so received from such Subcustodian ( (exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to the ~~Fund~~ Funds or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions reasonably believed by the Custodian to be given by an Authorized Person without reviewing the same; (iii) for ~~conclusively~~ presuming (in the Custodian’s reasonable judgment) that all Instructions are given only by person(s) duly authorized; (00 iv) for conclusively presuming that all disbursements of cash directed by the applicable Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (yv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yivi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) ~~services~~services (a “Force Majeure Event”); (~~yii~~vii) for the insolvency of any Subcustodian (other than a ~~BNY~~ BNYM Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's ’s failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ viii) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the applicable Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian will maintain throughout the term of this Agreement, such disaster recovery and contingency plans and systems as it reasonably believes to be necessary and appropriate to recover its operations from the occurrence of a Force Majeure Event and which are consistent with the requirements of any statute, regulation or rule to which it is subject that imposes business resumption and contingency planning standards. Custodian shall employ commercially reasonable efforts to resume performance as soon as practicable under the circumstances, following the occurrence of a Force Majeure Event. (c) Custodian may enter into subcontracts, agreements and understandings with any ~~BNY~~ BNYM Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (cd) ~~The~~ Each Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance ~~hereunder,~~ hereunder (including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the applicable Fund), including without limitation, any breach of or default under any of the representations, warranties or covenants made in any subscription documentation with any issuer of Hedge Fund Investments; provided however, that ~~the~~ no Fund shall ~~not~~ be obligated to indemnify Custodian for those Losses arising out of Custodian's ’s own negligence or willful misconduct. This indemnity shall be a continuing obligation of ~~the~~ each Fund, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by ~~the~~ a Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for ~~the~~ a Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by ~~the~~ a Fund; (e) The legality of any borrowing by ~~the~~ a Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for ~~the~~ a Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the applicable Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of ~~the~~ a Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the applicable Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the applicable Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by ~~the~~ a Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to ~~the~~ a Fund of any variation margin payment or similar payment which ~~the~~ a Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount ~~the~~ a Fund is entitled to receive, or to notify ~~the~~ a Fund of Custodian~~'s receiptor~~ ’s receipt or non-receipt of any such payment~~; or~~; (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund and specifically allocated to a Series are such as properly may be held by the applicable Fund or such Series under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by ~~the~~ a Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by such Fund; or (i) Any action by a Fund or by any issuer of a Hedge Fund Investment that prevents or limits the ~~Fund~~redemption or other liquidation of the Hedge Fund Investment (including, without limitation, any action taken by any issuer to suspend or curtail redemptions or to make distributions in kind, including distributions of illiquid investments). 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice, provided that, any such action or omission by Custodian is consistent with Custodian’s rights and responsibilities under this Agreement. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. ~~The~~ Each Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's ’s standard rates for such services as ~~maybe~~ may be applicable. ~~The~~ Each Fund shall reimburse Custodian for all costs associated with the conversion of the applicable Fund's ’s Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. ~~The~~ Each Fund shall also reimburse ~~Custodian, at cost,~~ Custodian for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by ~~the~~ a Fund in connection with any and all obligations of the applicable Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when ~~the~~ a Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the applicable Fund to retain or set-off, against such obligations of the applicable Fund, any Securities or cash Custodian or a ~~BNY~~ BNYM Affiliate may directly or indirectly hold for the account of the applicable Fund, and any obligations (whether matured or unmatured) that Custodian or a ~~BNY~~ BNYM Affiliate may have to the applicable Fund in any currency or Composite Currency Unit. Custodian will promptly notify the applicable Fund of any such setoffs, with such notice to include an explanation of such setoffs and any remaining applicable obligations of the applicable Fund to Custodian. Any such asset of, or obligation to, the applicable Fund may be transferred to Custodian and any ~~BNY~~ BNYM Affiliate in order to effect the above rights. 8. ~~The~~ Each Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. ~~The~~ Each Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If ~~the~~ a Fund elects to transmit Instructions through an on-line communications system offered by Custodian, ~~the~~ such Fund's ’s use thereof shall be subject to the Terms and Conditions attached as Appendix J I hereto. If Custodian receives Instructions which appear on their face to have been transmitted by an Authorized Person via (i) computer facsimile, ~~and Custodian shall provide user and~~ email, the Internet or other insecure electronic method, or (ii) secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys, the applicable Fund understands and ~~authentication keys only to an Authorized Person or a person reasonably believed~~ agrees that Custodian cannot determine the identity of the actual sender of such Instructions and that Custodian shall conclusively presume that such Written Instructions have been sent by ~~Custodian to be~~ an Authorized Person, and the applicable Fund shall be responsible for ensuring that only Authorized Persons transmit such Instructions to Custodian. If a Fund elects (with Custodian’s prior consent) to transmit Instructions through an on-line communications service owned or operated by a third party, the applicable Fund agrees that Custodian shall not be responsible or liable for the reliability or availability of any such service. 9. The books and records pertaining to ~~the~~ a Fund which are in possession of Custodian shall be the property of the applicable Fund. Such books and records shall be prepared and maintained as required by the '‘40 Act and the rules thereunder. ~~The~~ Each Fund, or its authorized representatives, shall have access to such books and records during Custodian's ’s normal business hours. Upon the reasonable request of ~~the~~ a Fund, copies of any such books and records shall be provided by Custodian to the applicable Fund or its authorized representative. Upon the reasonable request of ~~the~~ a Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the ~~Fund~~ Funds with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 2 contracts

Samples: Custody Agreement (Entrust Multi-Strategy Fund), Custody Agreement (EnTrust Multi-Strategy Master Fund)

Appears in 2 contracts

Samples: Custody Agreement (Northern Lights Fund Trust), Custody Agreement (Merit Advisors Investment Trust)

CONCERNING CUSTODIAN. (a) The Custodian shall be held to a standard of reasonable care in carrying out the provisions of this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waived. Except as otherwise expressly provided herein, Custodian shall not be liable for any ~~costs, expenses, damages, liabilities or claims, including attorneys' and accountants' fees (collectively, “~~Losses”), incurred by or asserted against the Fund, except those Losses arising out of Custodian's ’s own negligence or willful ~~misconduct~~misconduct (“Breach Conduct”). Custodian shall have no liability whatsoever for the action or inaction of any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result of the Custodian~~' s~~ ’s failure to fulfill its duties hereunder. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any Subcustodian (other than a ~~BNY~~ Custodian Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's ’s sole responsibility and liability to the Fund shall be limited to amounts so received from such Subcustodian ( (exclusive of costs and expenses incurred by Custodian). In Notwithstanding any other provision of this Agreement, in no event shall ~~Custodian~~ Custodian, its affiliates or any of its or their directors, officers, employees, agents or subcontractors be liable ~~to the Fund~~ under any theory of tort, contract, strict liability or ~~any third party~~ other legal or equitable theory for lost profits, for exemplary, punitive, special, incidental, indirect or consequential damages, or ~~lost profits~~ for any other damages which are not direct damages regardless of whether such damages were or ~~loss~~ should have been foreseeable and regardless of ~~business~~whether any entity has been advised of the possibility of such damages, ~~arising~~ all and each of which damages is hereby excluded by agreement of the parties. For purposes of clarification: no other provision of this Agreement shall be interpreted to condition, limit, modify, nullify or otherwise prevail in ~~connection with~~ whole or in part over this ~~Agreement~~Section 1(a). Further, ~~nor~~ in no event shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 iv) for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (yv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yivi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (~~yii~~vii) for the insolvency of any Subcustodian (other than a ~~BNY~~ Custodian Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's ’s failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ viii) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any ~~BNY~~ Custodian Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund agrees to ~~indemnify~~ indemnify, defend and hold harmless Custodian and ~~hold Custodian harmless~~ its affiliates that provide services to the Fund on behalf of Custodian, and the respective directors, trustees, officers and employees of each, from ~~and against~~ any and all Losses ~~sustained~~ and all attorneys’ fees, court costs, travel costs and other reasonable out-of-pocket costs and expenses related to the investigation, discovery, litigation, settlement, mediation or ~~incurred by or asserted against Custodian by reason of or as a result~~ alternative dispute resolution of any ~~action~~ Claim arising directly or ~~inaction~~indirectly from: (a) conduct of the Fund in connection with activities contemplated by this Agreement, or ~~arising out~~ the conduct of ~~Custodian's performance hereunder~~a Fund contractor, ~~including reasonable fees and expenses of counsel incurred by Custodian~~ subcontractor or prior service provider in ~~a successful defense of claims by~~ connection with providing services to the Fund; ~~provided however, that~~ (b) conduct of Custodian as agent of the Fund not constituting Breach Conduct; (c) conduct of Custodian pursuant to Fund Instructions, Oral Instructions or in reliance on written legal analysis or advice that does not also include Breach Conduct; and (d) a Fund Error. Custodian shall ~~not indemnify Custodian~~ have no liability to the Fund or any person claiming through the Fund for ~~those Losses arising out of Custodian's own negligence~~ any Loss caused in whole or ~~willful misconduct~~in part by any conduct described in the preceding sentence. This indemnity shall be a continuing obligation of the Fund, its successors and assigns, notwithstanding the termination of this Agreement. (d) The Fund shall not be responsible for and Custodian shall indemnify and hold harmless the Fund and its directors, trustees, officers and employees from and against any and all Losses and all attorneys’ fees, court costs, travel costs and other reasonable out-of-pocket costs and expenses related to the investigation, discovery, litigation, settlement, mediation or alternative dispute resolution of any Claims made by third parties which result from a negligent act or omission to act or bad faith by Custodian in the performance of its duties hereunder (“Negligence Claim”); provided, however, it shall be a condition precedent to the obligation of Custodian under this Section 1(d) to provide indemnification with respect to a Negligence Claim and the Fund’s right to demand performance by Custodian that the Fund (i) notify Custodian of the Negligence Claim as soon as practicable after becoming aware of the Negligence Claim, (ii) provide Custodian with a copy of any written materials it receives asserting the Claim and any other written materials received by the Fund in connection with the Negligence Claim as soon as practicable after each is received, and (iii) permit Custodian to research the assertions in the Negligence Claim and related circumstances, consult with counsel, if deemed by Custodian to be appropriate, and contact the person asserting the Negligence Claim or such person’s representatives to discuss or attempt to resolve the matters asserted in the Negligence Claim. This indemnity shall be a continuing obligation of Custodian, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian~~'s receiptor~~ ’s receipt or non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of the Fund and specifically allocated to a ~~Fund~~ Portfolio are such as properly may be held by the Fund or such Portfolio under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's ’s standard rates for such services as ~~maybe~~ may be applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's ’s Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse ~~Custodian, at cost,~~ Custodian for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a ~~BNY~~ Custodian Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a ~~BNY~~ Custodian Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any ~~BNY~~ Custodian Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's ’s use thereof shall be subject to the Terms and Conditions attached as Appendix J I hereto. If Custodian receives Instructions which appear on their face to have been transmitted by an Authorized Person via (i) computer facsimile, ~~and Custodian shall provide user and~~ email, the Internet or other insecure electronic method, or (ii) secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys, the Fund understands and ~~authentication keys only to an Authorized Person or a person reasonably believed~~ agrees that Custodian cannot determine the identity of the actual sender of such Instructions and that Custodian shall conclusively presume that such Written Instructions have been sent by ~~Custodian to be~~ an Authorized Person, and the Fund shall be responsible for ensuring that only Authorized Persons transmit such Instructions to Custodian. If the Fund elects (with Custodian’s prior consent) to transmit Instructions through an on-line communications service owned or operated by a third party, the Fund agrees that Custodian shall not be responsible or liable for the reliability or availability of any such service. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '‘40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's ’s normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 2 contracts

Samples: Custody Agreement (Sit Mutual Funds Inc), Custody Agreement (Sit U S Government Securities Fund Inc)

Appears in 2 contracts

Samples: Custody Agreement (XTF Investors Trust), Custody Agreement (XTF Advisors Trust)

Appears in 2 contracts

Samples: Services Agreement (GreenHaven Coal Fund), Services Agreement (Greenhaven Coal Index Fund)

Appears in 2 contracts

Samples: Global Custody Agreement (GreenHaven Continuous Commodity Index Fund), Global Custody Agreement (GreenHaven Continuous Commodity Index Fund)

Appears in 2 contracts

Samples: Custody Agreement (Guggenheim Taxable Municipal Managed Duration Trust), Custody Agreement (Guggenheim Enhanced Equity Income Fund (F/K/a Old Mutual/Claymore Long-Short Fund))

Appears in 2 contracts

Samples: Custody Agreement (Ts&w / Claymore Tax-Advantaged Balanced Fund), Custody Agreement (Madison Claymore Covered Call Fund)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held to~~ exercise such good faith, reasonable care, diligence, and prudence as a ~~standard of reasonable care~~ professional custodian for securities would exercise in carrying out ~~the provisions~~ all of this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waivedthese duties and obligations. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' and accountants' fees (collectively, “"Losses”"), incurred by or asserted against the Fund, except those Losses arising out of Custodian's own negligence or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any ~~Depositories or of any Foreign~~ Depositories, or, except ~~in each case~~ to the extent such action or inaction is a direct result of the Custodian~~' s~~ 's failure to fulfill its duties hereunder, of any Foreign Depositories. With respect to any Losses incurred by the Fund as a result of the acts or ~~any~~ failures to act by a Subcustodian listed on part 1 of Schedule 1, Custodian shall be liable to the Fund for such Losses, but only to the extent such Losses arise out of or are caused by acts or failure to act by such Subcustodian for which it is liable under the terms of its agreement with Custodian and the laws governing such agreement. With respect to any Losses incurred by the Fund as a result of the acts or omission of a Subcustodian ~~(other than a BNY Affiliate)~~either not listed on part 1 of Schedule 1 or listed on part 2 of Schedule 1, Custodian shall take appropriate action to recover such ~~Losses from such Subcustodian;~~ Losses, and Custodian's ~~sole responsibility and~~ liability ~~to the Fund~~ shall be limited to ~~amounts so received from such Subcustodian ( exclusive~~ the amount recovered net of costs and ~~expenses incurred by Custodian)~~expenses. In no event shall Custodian be liable to the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall ~~Custodian~~ BNY or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 iv) for conclusively presuming that all disbursements of cash directed by the ~~Fund, whether~~ Fund by ~~a Certificate, an Oral Instruction, or~~ an Instruction, are in accordance with Section ~~2(i~~2(j) of Article II hereof; (yv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yivi) for any Losses due to forces beyond the reasonable control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, ~~communications~~ non-internal communication services, but only to the extent beyond Custodian's reasonable control, and, but only if Custodian is maintaining such back-up system(s) and disaster recovery plan(s) as are required by its regulators and all laws applicable to Custodian, interruption, loss or malfunction of internal communication services or of computer (software ~~and~~ or hardware) services; it being understood that Custodian shall use commercially reasonable best efforts to resume performance as soon as practicable under the circumstances; (~~yii~~vii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ viii) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall in any way discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's performance hereunder, including reasonable fees and expenses of ~~counsel incurred by Custodian in a successful defense of claims by the Fund;~~ counsel, provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's own negligence or willful misconduct or for any Losses which constitutes indirect, special, or consequential damages or lost profits or loss of business. Custodian agrees to indemnify the Fund and hold the Fund harmless from and against any and all Losses, including reasonable fees ad expenses of counsel, sustained or incurred by or asserted against the Fund arising out of the Custodian's negligence or willful misconduct, provided, however, that the Custodian shall not indemnify the Fund for nor be liable for any Losses which constitute indirect, special, or consequential damages or lost profits or loss of business. This indemnity shall be a continuing obligation of the ~~Fund~~Fund and the custodian, ~~its~~ their successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's ~~receiptor~~ receipt or non-receipt of any such payment; except that Custodian shall notify the Fund of any difference between any amount the Fund has specified in a Certificate or Oral Instructions as the amount to be received and the amount custodian actually receives; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of the Fund and specifically allocated to a ~~Fund~~ Series are such as properly may be held by the Fund or such Series under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as ~~maybe~~ may be applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse ~~Custodian, at cost,~~ Custodian for out-~~of-~~of pocket ~~expenses~~ expenses, subject to approval of the Fund, which are a normal incident of the services provided hereunder. 7. With Instructions from an Authorized Person or Oral Instructions, Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the ~~Fund~~ Series to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the ~~Fund~~Series, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency ~~Unit. Any such asset of, or obligation to,~~ Unit and shall notify the Fund ~~may be transferred to Custodian and any BNY Affiliate in order to effect the above rights~~whenever it has exercised such right. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not ~~received or that a contrary Certificate or contrary Instructions are~~ received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J I hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, all regulatory authorities whose statutes, laws, rules and regulations are applicable to the Fund shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by ~~the~~ Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 1112. Custodian ~~shall have no duties or responsibilities whatsoever except such duties~~ will also provide those custody related services not already described above that are included in the Service Guidelines established and ~~responsibilities~~ agreed between the parties as ~~are specifically set forth in this Agreement,~~ the same may be revised from time to time by mutual agreement of the parties hereto. The Service Guidelines will also govern the timeliness and ~~no covenant or obligation shall be implied against Custodian in connection with this Agreement~~performance standards for custody related services where specified therein.

Appears in 2 contracts

Samples: Custody Agreement (Ing Equity Trust), Custody Agreement (Ing Get Fund)

Appears in 2 contracts

Samples: Custody Agreement (Skybridge Multi-Adviser Hedge Fund Portfolios LLC), Custody Agreement (Skybridge G II Fund, LLC)

Appears in 2 contracts

Samples: Custody Agreement (First Trust Exchange-Traded Fund Iv), Custody Agreement (First Trust Exchange-Traded Fund Iv)

Appears in 2 contracts

Samples: Custody Agreement, Custody Agreement (Federated Enhanced Treasury Income Fund)

Appears in 2 contracts

Samples: Custody Agreement (Versus Global Multi-Manager Real Estate Income Fund LLC), Custody Agreement (Versus Global Multi-Manager Real Estate Income Fund LLC)

Appears in 2 contracts

Samples: Custody Agreement (Nations Master Investment Trust), Custodian Agreement (Nations Master Investment Trust)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held~~ exercise such good faith, reasonable care, diligence and prudence as a professional custodian would exercise under the facts and circumstances and to ~~a standard of reasonable care~~ act without negligence, fraud, bad faith, or willful misconduct in carrying out the ~~provisions of~~ duties and obligations set forth in this Agreement~~; provided~~, ~~however, that the Custodian shall be held to different~~ unless a higher standard of care ~~of imposed~~ is required by ~~any other provision of this Agreement or imposed upon Custodian by any applicable law~~ law, rule, or regulation, in which ~~by its terms cannot be contractually modified or waived~~case such higher standard of care will apply. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against ~~the~~ a Fund, except those Losses arising out of Custodian's ’s own ~~negligence~~ negligence, bad faith or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any ~~Depositories or of any Foreign~~ Depositories, or, except ~~in each case~~ to the extent such action or inaction is a direct result of ~~the~~ Custodian~~' s~~ ’s failure to fulfill its duties hereunder, of any Foreign Depositories. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any ~~Subcustodian (other than a BNY Affiliate)~~Subcustodian, Depository, or Foreign Depository, Custodian shall take appropriate action to recover such Losses from such Subcustodian, Depository, or Foreign Depository; and with regard to a Depository or Foreign Depository or with regard to a Loss relating to the Subcustodian’s provision of sub-custody services in a market other than one listed in Schedule III hereto, Custodian's ’s sole responsibility and liability to the Fund shall be limited to amounts so received from such ~~Subcustodian (~~ Subcustodian, Depository or Foreign Depository (exclusive of costs and expenses incurred by Custodian), except to the extent that (A) Custodian’s negligence, bad faith or willful misconduct is the direct cause of such Subcustodian, Depository or Foreign Depository’s act or omission (it being agreed that Custodian’s decision to use any such Subcustodian, Depository or Foreign Depository shall not constitute negligence, bad faith or willful misconduct), or (B) a transaction or other matter between Custodian and such Subcustodian, Depository or Foreign Depository in which Custodian acts with negligence, fraud, bad faith, or willful misconduct and which is unrelated to the Fund was the cause of the loss or damage, in each of which events, Custodian shall be liable for such Losses. ~~In no~~ At a Fund’s election and to the extent practicable under the circumstances and allowable under the applicable agreement and/or the law pursuant to which such agreement is construed, a Fund shall be subrogated on behalf of its Series to the rights of Custodian with respect to any claims against a Depository or Foreign Depository or against a Subcustodian with respect to the provision of sub-custody services in a market other than one listed in Schedule III hereto as a consequence of any Losses if and to the extent that such Series has not been made whole for any Losses within a reasonable period of time by such Subcustodian, Depository or Foreign Depository. Upon the occurrence of any event that causes or may cause any Losses to a Fund, Custodian shall (i) promptly notify the Fund of the occurrence of such event and (ii) take all reasonable steps under the circumstances to mitigate the effects of such event and to avoid continuing harm to the Fund. (b) Provided Custodian’s actions or omissions are without gross negligence, fraudulent conduct, bad faith, or willful misconduct, Custodian shall not be liable to ~~the~~ a Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement. In addition, neither Custodian nor ~~shall Custodian or~~ any Subcustodian shall be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions requiring authentication codes if such Instructions have authentication codes without reviewing the same; (iii) ~~for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00~~ for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section ~~2(i~~3(i) of Article II hereof; (yiv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (yiiv) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of ~~the~~ Custodian's ’s failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ vi) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the ~~account~~ Account of the Fund, and Custodian may treat any ~~account~~ Account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. Provided that Custodian shall maintain an information security program as set forth in Article III, Section 13, and business continuation and disaster recovery procedures as set forth in Article III, Section 14, Custodian shall not be liable for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes, or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services (“Force Majeure Event”). Custodian shall endeavor to promptly notify the Funds when it becomes aware of any situation outlined above, but shall not be liable for a failure to do so. The Funds shall not be responsible for temporary delays in the performance of their duties and obligations hereunder and correspondingly shall not be liable for any Losses attributable to such delay in consequence of an event as described above affecting the Funds’ principal place of business operations or administration. (bc) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. With respect to Losses incurred by a Fund as a result of an action or omission of a BNY Affiliate, Custodian will be liable for such Losses to the same extent that Custodian would be liable under the Agreement if the applicable action or omission was that of Custodian. (cd) The ~~Fund agrees~~ Funds agree to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the ~~Fund~~ Funds shall not indemnify Custodian for those Losses arising out of Custodian's ’s own ~~negligence~~ negligence, bad faith or willful misconduct. This indemnity shall be a continuing obligation of each Fund, their successors and assigns, notwithstanding the ~~Fund~~termination of this Agreement. (e) Without limiting any provisions of Article III, Section 1, Custodian agrees to indemnify each Fund against and hold each Fund harmless from and against any and all direct damages sustained or incurred because of or in connection with this Agreement; provided however, that Custodian shall only indemnify the Funds for those direct damages arising out of the negligence, bad faith or willful misconduct of Custodian, or any affiliate of Custodian or any BNY Affiliate. This indemnity shall be a continuing obligation of Custodian, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable ~~for:~~for (except to the extent that either (a) or (b) involves Custodian’s negligence, bad faith or willful misconduct): (a) Any Losses incurred by ~~the~~ a Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; ; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; ; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; ; (d) The legality of the declaration or payment of any dividend or distribution by ~~the~~ a Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice and opinion of counsel to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as maybe applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse Custodian, at cost, for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 2 contracts

Samples: Custody Agreement (Vanguard Admiral Funds), Custody Agreement (Vanguard Admiral Funds)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held to a standard of~~ exercise reasonable care and diligence in carrying out ~~the provisions~~ all of its duties and obligations under this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waived. Except as otherwise expressly provided herein, Custodian shall not be liable for any losses, costs, expenses, damages, charges, liabilities or claims, including reasonable attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against the ~~Fund~~Company, except those Losses arising out of and determined by an arbiter of competent jurisdiction to have been caused by Custodian's ’s (i) own ~~negligence~~ negligence, bad faith, willful misfeasance, or ~~willful misconduct~~reckless disregard of its duties hereunder; (ii) Custodian’s material breach of this Agreement; or (iii) violation of laws, regulations or requirements, applicable to Custodian, of any governmental authority having jurisdiction over Custodian or the Trust. Custodian shall have no liability whatsoever for the action or inaction of any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a ~~direct~~ result of the Custodian~~' s~~ ’s failure to fulfill its duties hereunder. With respect to any Losses incurred by the ~~Fund~~ Company as a result of the acts or any failures to act by any Subcustodian (other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's ’s sole responsibility and liability to the ~~Fund~~ Company shall be limited to amounts so received from such Subcustodian ( (exclusive of costs and expenses incurred by Custodian). In no event ~~shall Custodian be liable to the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor~~ shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions ~~without reviewing the same~~believed in good faith by Custodian to be given by an Authorized Person; (iii) for ~~conclusively~~ presuming in good faith that all Instructions are given only by person(s) duly authorized; (00 iv) for conclusively presuming that all disbursements of cash directed by the ~~Fund~~Company, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (yv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (yiivi) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a ~~direct~~ result of ~~the~~ Custodian's ’s failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ viii) for any Losses arising ~~from the applicability of any law or regulation now or hereafter in effect, or~~ from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the ~~Fund~~Company, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder, and Custodian shall be liable for the acts or omissions of any BNY Affiliate to the same extent as it is liable for such acts or omissions under this Agreement. (c) The ~~Fund~~ Company agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the ~~Fund~~Company; provided however, that the ~~Fund~~ Company shall not indemnify Custodian for those Losses arising out of Custodian's ’s own ~~negligence~~ negligence, bad faith, willful misfeasance or ~~willful misconduct~~reckless disregard for its duties hereunder. This indemnity shall be a continuing obligation of the ~~Fund~~Company, its successors and assigns, notwithstanding the termination of this Agreement~~. 2~~. ~~Without limiting the generality of the foregoing, Custodian sep be under no obligation to inquire into,~~ The Company and each Series shall not be ~~liable~~ responsible for~~: (a) Any~~ , and the Custodian shall indemnify and hold the Company and each Series harmless from and against any and all Losses ~~incurred~~ arising out of or attributable to actions of the Custodian, its employees, agents or subcontractors relating to this Agreement and determined by an arbiter of competent jurisdiction to have been caused by the ~~Fund~~ Custodian’s (or its employee’s, agents’ or subcontractors’) (i) negligence, lack of good faith, willful misfeasance or reckless disregard of its/their duties hereunder; (ii) violation of law, regulations or requirements applicable to the Custodian and relating to this Agreement of any ~~other person as~~ governmental authority having jurisdiction over the Custodian or (iii) the material breach of this Agreement (including a ~~result~~ breach of the ~~receipt or acceptance~~ standard of ~~fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance~~ care in ~~any relevant market; (b) The validity~~ Section 6). This indemnity shall be a continuing obligation of the ~~issue~~ Custodian, its successors and assigns, notwithstanding the termination of this Agreement. In addition, in the event a claim is asserted against the Company arising out of or in connection with any ~~Securities purchased~~action or inaction by Custodian in performing its duties in accordance with the standard of care set forth hereunder, ~~sold, or written by or for~~ and to the ~~Fund,~~ extent the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Company asserts and is successful in a related claim against Custodian ~~be under any duty or obligation to see to~~ in which it ~~that any cash or collateral delivered to it~~ is determined by a ~~broker~~court or an arbiter of competent jurisdiction that Custodian failed to discharge its duties in accordance with the standard of care set forth hereunder, ~~dealer~~ then Custodian shall indemnify the Company for any and all costs, expenses, direct damages, liabilities or ~~financial institution~~ claims (including attorneys’ and accountants’ fees) sustained or ~~held by it at any time~~ incurred as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fundclaim. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice and opinion of counsel to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as maybe applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse Custodian, at cost, for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 2 contracts

Samples: Custody Agreement (SBL Fund), Custody Agreement (SBL Fund)

Appears in 2 contracts

Samples: Custody Agreement (First Investors Government Fund Inc), Custody Agreement (First Investors Tax Exempt Money Market Fund Inc)

Appears in 2 contracts

Samples: Custody Agreement (Alpine Global Premier Properties Fund), Custody Agreement (Alpine Global Premier Properties Fund)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held to a standard of~~ exercise such good faith, reasonable ~~care~~ care, diligence and prudence in carrying out the ~~provisions of this Agreement; provided, however, that~~ duties and obligations set forth herein as a professional custodian would exercise under the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waivedfacts and circumstances. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against the Fund, except those Losses arising out of Custodian's ’s own ~~negligence~~ negligence, bad faith or willful ~~misconduct~~misconduct (i.e., the Custodian’s standard of care). Custodian shall have no liability whatsoever for the action or inaction of any ~~Depositories~~ Depository, Foreign Depository or ~~of any Foreign Depositories~~Subcustodian, except in each case to the extent such action or inaction is a direct result of the Custodian~~' s~~ ’s failure to fulfill its duties hereunder. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any Depository, Foreign Depository or Subcustodian (other than a ~~BNY~~ Custodian Affiliate), Custodian shall take appropriate action to recover such Losses from such Depository, Foreign Depository or Subcustodian; provided that, at the Fund’s election and ~~Custodian's sole responsibility~~ to the extent practicable under the circumstances and ~~liability~~ allowable under the applicable agreement and/ or the law pursuant to which such agreement is construed, the Fund shall be ~~limited~~ subrogated on behalf of the Series to ~~amounts so received from~~ the rights of the Custodian with respect to any claims against such ~~Subcustodian ( exclusive~~ entity as a consequence of ~~costs~~ any such Loss if and ~~expenses incurred~~ to the extent that the Series have not been made whole for any such Loss by ~~Custodian)~~such Depository, Foreign Depository or Subcustodian. 2. In no event shall Custodian be liable to the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with ~~Instructions without reviewing the same~~Instructions; (iii) for ~~conclusively~~ presuming that all Instructions are given only by person(s) duly authorized; (00 iv) for ~~conclusively~~ presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (yv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yivi) for any Losses due to forces beyond the control of Custodian, including without limitation ~~strikes, work stoppages,~~ acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, but only if Custodian is reasonable in its maintenance of such back-up systems and disaster recovery plans as are set forth herein; (~~yii~~vii) for the insolvency of any Subcustodian (other than a ~~BNY~~ Custodian Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's ’s failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ viii) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any BNY Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the Fund shall not indemnify Custodian for those Losses arising out of Custodian's own negligence or willful misconduct. This indemnity shall be a continuing obligation of the Fund, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian sep be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian's receiptor non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice and opinion of counsel to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's standard rates for such services as maybe applicable. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse Custodian, at cost, for out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right without notice to the Fund to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a BNY Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a BNY Affiliate may have to the Fund in any currency or Composite Currency Unit. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any BNY Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's use thereof shall be subject to the Terms and Conditions attached as Appendix J hereto, and Custodian shall provide user and authorization codes, passwords and authentication keys only to an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the '40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.

Appears in 2 contracts

Samples: Custody Agreement (Goldman Sachs Variable Insurance Trust), Custody Agreement (Goldman Sachs Trust)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian shall ~~be held to a standard of~~ exercise reasonable care and diligence in carrying out ~~the provisions~~ all of its duties and obligations under this Agreement; provided, however, that the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation, which by its terms cannot be contractually modified or waived. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including reasonable and documented attorneys' ’ and accountants' ’ fees and expenses (collectively, “Losses”), incurred by or asserted against the ~~Fund~~Trust, except those Losses arising out of Custodian's ’s own ~~negligence~~ negligence, bad faith, willful misfeasance, or ~~willful misconduct. Custodian shall have no liability whatsoever for the action or inaction~~ reckless disregard of ~~any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result of the Custodian' s failure to fulfill~~ its duties hereunder. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any Subcustodian (other than a BNY Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's sole responsibility and liability to the Fund shall be limited to amounts so received from such Subcustodian ( exclusive of costs and expenses incurred by Custodian). In no event shall the Custodian be liable to the ~~Fund~~ Trust or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement~~, nor~~ . The Custodian shall ~~Custodian or any Subcustodian~~ not be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with such Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 iv) for conclusively presuming that all disbursements of cash directed by the ~~Fund~~Trust, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with ~~Section 2(i)~~ the applicable provisions of ~~Article II hereof~~this Agreement; (yv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash ~~or Securities or~~ market conditions which prevent the transfer of property or ~~execution of Securities transactions or~~ affect the value of property; (yivi) for any Losses due to forces beyond the control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (~~yii~~vii) for the insolvency of any Subcustodian (other than a BNY Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's failure to fulfill its duties hereunder, any Foreign Depository; or (yiii)l for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures ~~of a Foreign Depository,~~ which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency ~~or Composite Currency Unit~~ in any ~~country or on the transfer of any Securities~~country, and in no event shall Custodian be obligated to substitute another currency for a currency ~~(including a currency that is a component of a Composite Currency Unit)~~ whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any ~~cash currency or Composite Currency Unit~~currency, such cost or charge shall be for the account of the ~~Fund~~Trust, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any ~~BNY~~ Custodian Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder, and Custodian shall be liable for the acts or omissions of any such Custodian Affiliate to the same extent as it is liable for such acts or omissions under this Agreement. (c) The ~~Fund~~ Trust, on its own behalf, agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the ~~Fund~~Trust; provided however, that the ~~Fund~~ Trust, on its own behalf, shall not indemnify Custodian for those Losses arising out of Custodian's ’s own ~~negligence or~~ negligence, bad faith, willful ~~misconduct~~misfeasance, reckless disregard for its duties hereunder. This indemnity shall be a continuing obligation of the ~~Fund~~Trust, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (db) The legality of the declaration or payment of any dividend or distribution by the ~~Fund~~Trust; (ec) The legality of any borrowing by the ~~Fund~~Trust; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (gd) The sufficiency or value of any amounts of ~~money and/or Securities~~ Cash held in any Special Account in connection with transactions by the ~~Fund~~Trust; whether any broker, dealer, futures commission merchant or clearing member makes payment to the ~~Fund~~ Trust of any variation margin payment or similar payment which the ~~Fund~~ Trust may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the ~~Fund~~ Trust is entitled to receive, or to notify the ~~Fund~~ Trust of Custodian~~'s receiptor~~ ’s receipt or non-receipt of any such payment; or (he) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of a Fund are such as properly may be held by the Fund under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the ~~Fund~~Trust, whether or not involving Custodian, are such transactions as may properly be engaged in by the ~~Fund~~Trust. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon by the Funds and the Custodian~~ and shall be fully protected with respect to anything done or omitted by it provided that Custodian acts in good faith without negligence or willful misfeasance in ~~conformity with~~ carrying out such advice. 4~~. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5~~. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 65. The ~~Fund~~ Trust shall pay to Custodian the fees and charges in the agreed upon fee schedule (as such fee schedule may be ~~specifically agreed upon~~ amended by BNY Mellon and Trust from time to ~~time and such other fees and charges at Custodian's standard rates for such services as maybe applicable~~time) (the “fee schedule”). The ~~Fund~~ Trust shall reimburse Custodian for all costs associated with the ~~conversion of the Fund's Securities hereunder and the~~ transfer of ~~Securities and~~ records kept in connection with this Agreement upon termination of the Agreement. The ~~Fund~~ Trust shall also reimburse ~~Custodian, at cost,~~ Custodian for ~~out-of-pocket~~ out‑of‑pocket expenses which are a normal incident of the services provided hereunder. 76. Custodian has the right to debit any cash account for any amount payable by the ~~Fund~~ Trust in connection with any and all obligations of the ~~Fund~~ Trust to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the ~~Fund~~ Trust shall not have honored any of its obligations to Custodian, Custodian shall have the right without prior notice to the ~~Fund~~ Trust to retain or set-off, against such obligations of the ~~Fund~~Trust, any ~~Securities or~~ cash Custodian or a ~~BNY~~ Custodian Affiliate may directly or indirectly hold for the account of the ~~Fund~~Trust, and any obligations (whether matured or unmatured) that Custodian or a ~~BNY~~ Custodian Affiliate may have to the ~~Fund in any currency or Composite Currency Unit~~Trust. Any such asset of, or obligation to, the ~~Fund~~ Trust may be transferred to Custodian and any ~~BNY~~ Custodian Affiliate in order to effect the above rights. 87. The ~~Fund~~ Trust agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The ~~Fund~~ Trust agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the ~~Fund~~ Trust elects to transmit Instructions through an on-line communications system offered by Custodian, the ~~Fund's~~ Trust’s use thereof shall be subject to the Terms and Conditions attached as Appendix J I hereto. If Custodian receives Instructions which appear on their face to have been transmitted by an Authorized Person via (i) computer facsimile, ~~and Custodian shall provide user and~~ email, the Internet or other insecure electronic method, or (ii) secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys, the Trust understands and ~~authentication keys only to an Authorized Person or a person reasonably believed~~ agrees that Custodian cannot determine the identity of the actual sender of such Instructions and that Custodian shall conclusively presume that such Written Instructions have been sent by ~~Custodian to be~~ an Authorized Person, and the Trust shall be responsible for ensuring that only Authorized Persons transmit such Instructions to Custodian. If the Trust elects (with Custodian’s prior consent) to transmit Instructions through an on-line communications service owned or operated by a third party, the Trust agrees that Custodian shall not be responsible or liable for the reliability or availability of any such service. 98. The books and records pertaining to the ~~Fund~~ Trust which are in possession of Custodian shall be the property of the ~~Fund~~Trust. Such books and records shall be prepared and maintained as ~~required by~~ described in the ~~'40~~ Investment Company Act of 1940, as amended, and the rules thereunder, as if the Trust was subject to such rules. The ~~Fund~~Trust, or its authorized representatives, shall have access to such books and records during Custodian's ’s normal business hours. Upon the reasonable request of the ~~Fund~~Trust, copies of any such books and records shall be provided by Custodian to the ~~Fund~~ Trust or its authorized representative. Upon the reasonable request of the ~~Fund~~Trust, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 109. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the ~~Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and~~ Trust with such reports on its own system of internal accounting control as the ~~Fund~~ Trust may reasonably request from time to time. 1110. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement, except as set forth in this Agreement. (a) Throughout the term of this Agreement, the Trust (i) shall maintain, and comply with, an Economic Sanctions Compliance Program which includes measures to accomplish effective and timely scanning of all relevant data with respect to its clients and with respect to incoming or outgoing assets or transactions; (ii) shall ensure that neither the Trust nor any of its affiliates, directors, officers, employees or clients (to the extent such clients are covered by this Agreement) is an individual or entity that is, or is owned or controlled by an individual or entity that is: (A) the target of Sanctions, or (B) located, organized or resident in a country or territory that is, or whose government is, the target of Sanctions; and (iii) shall not, directly or indirectly, use the Accounts in any manner that would result in a violation of Sanctions. (b) The Trust will promptly provide to the Custodian such information as the Custodian reasonably requests in connection with the matters referenced in this Article VII, Section 11, including information regarding the Accounts, the assets held or to be held in the Accounts, the source thereof, and the identity of any individual or entity having or claiming an interest therein. The Custodian may decline to act or provide services in respect of any Account, and take such other actions as it, in its reasonable discretion, deems necessary or advisable, in connection with the matters referenced in this Article VII, Section 11. If the Custodian declines to act or provide services as provided in the preceding sentence, except as otherwise prohibited by applicable law or official request, the Custodian will inform the Trust as soon as reasonably practicable.

Appears in 2 contracts

Samples: Custody Agreement (Sprott ESG Gold ETF), Custody Agreement (Sprott ESG Gold ETF)

Appears in 1 contract

Samples: Global Custody Agreement (DB-New York Nuclear Uranium Fund)

CONCERNING CUSTODIAN. (a) ~~The~~ Custodian ~~shall be held~~ agrees to ~~a standard~~ use the level of ~~reasonable care~~ care, diligence, prudence in carrying out ~~the provisions of this Agreement; provided, however,~~ its duties hereunder that ~~the Custodian shall be held to different standard of care of imposed by any other provision of this Agreement or imposed upon Custodian by any applicable law or regulation,~~ a professional custodian would exercise under similar circumstances and which ~~by its terms cannot be contractually modified or waived~~prevails in markets where services are performed. Except as otherwise expressly provided herein, Custodian shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys' ’ and accountants' ’ fees (collectively, “Losses”), incurred by or asserted against the Fund, except those Losses arising out of Custodian's ’s own negligence or willful misconduct. Custodian shall have no liability whatsoever for the action or inaction of any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result of the Custodian~~' s~~ ’s failure to fulfill its duties hereunder. With respect to any Losses incurred by the Fund as a result of the acts or any failures to act by any Subcustodian (other than a ~~BNY~~ Custodian Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodian's ’s sole responsibility and liability to the Fund shall be limited to amounts so received from such Subcustodian ( (exclusive of costs and expenses incurred by Custodian). ~~In no event~~ Custodian shall ~~Custodian~~ not be liable to the Fund or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for acting in accordance with Instructions without reviewing the same; (iii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (00 iv) for conclusively presuming that all disbursements of cash directed by the Fund, whether by a Certificate, an Oral Instruction, or an Instruction, are in accordance with Section 2(i) of Article II hereof; (yv) for holding property in any particular country, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (yivi) for any Losses due to forces beyond the reasonable control of Custodian, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, interruption of communications or computer (software and hardware) services; (~~yii~~vii) for the insolvency of any Subcustodian (other than a ~~BNY~~ Custodian Affiliate), any Depository, or, except to the extent such action or inaction is a direct result of the Custodian's ’s failure to fulfill its duties hereunder, any Foreign Depository; or (~~yiii)l~~ viii) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, ~~limit~~ limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited, or prevented by such law, regulation or ~~event~~ event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility, or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Fund, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies. (b) Custodian may enter into subcontracts, agreements and understandings with any ~~BNY~~ Custodian Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder. (c) The Fund agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action or inaction, or arising out of Custodian's ’s performance hereunder, including reasonable fees and expenses of counsel incurred by Custodian in a successful defense of claims by the Fund; provided however, that the Fund shall not indemnify Custodian for those Losses arising out of any material breach by the Custodian of any representation or warranty made by it in this Agreement, or Custodian's ’s own negligence or willful ~~misconduct~~misconduct or for Losses that constitute special, indirect or consequential damages or lost profits or loss of business. This indemnity shall be a continuing obligation of the Fund, its successors and assigns, notwithstanding the termination of this Agreement. 2. Without limiting the generality of the foregoing, Custodian ~~sep~~ shall be under no obligation to inquire into, and shall not be liable for: (a) Any Losses incurred by the Fund or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market; (b) The validity of the issue of any Securities purchased, sold, or written by or for the Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; (c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor; (d) The legality of the declaration or payment of any dividend or distribution by the Fund; (e) The legality of any borrowing by the Fund; (f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Fund against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Fund. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent makes payment to it of any dividends or interest which are payable to or for the account of the Fund during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; (g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Fund; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Fund of any variation margin payment or similar payment which the Fund may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Fund is entitled to receive, or to notify the Fund of Custodian~~'s receiptor~~ ’s receipt or non-receipt of any such payment; or (h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of the Fund and specifically allocated to a ~~Fund~~ Series are such as properly may be held by the Fund or such Series under the provisions of its then current prospectus and statement of additional information, or to ascertain whether any transactions by the Fund, whether or not involving Custodian, are such transactions as may properly be engaged in by the Fund. 3. Custodian may, with respect to questions of law specifically regarding an Account, obtain the advice ~~and opinion~~ of qualified counsel ~~to the independent trustees of a Fund or other counsel that is mutually agreed upon~~ approved by the ~~Funds and the Custodian~~ Fund and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice. 4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment. 5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account. 6. The Fund shall pay to Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at Custodian's ’s standard rates for such services as ~~maybe~~ may be applicable, all as agreed upon in writing from time to time. The Fund shall reimburse Custodian for all costs associated with the conversion of the Fund's ’s Securities hereunder and the transfer of Securities and records kept in connection with this Agreement. The Fund shall also reimburse ~~Custodian~~Custodian for actual, ~~at cost, for~~ mutually agreed upon out-of-pocket expenses which are a normal incident of the services provided hereunder. 7. Custodian has the right to debit any cash account for any amount payable by the Fund in connection with any and all obligations of the Fund to Custodian. In addition to the rights of Custodian under applicable law and other agreements, at any time when the Fund shall not have honored any of its obligations to Custodian, Custodian shall have the right ~~without notice to the Fund~~ to retain or set-off, against such obligations of the Fund, any Securities or cash Custodian or a ~~BNY~~ Custodian Affiliate may directly or indirectly hold for the account of the Fund, and any obligations (whether matured or unmatured) that Custodian or a ~~BNY~~ Custodian Affiliate may have to the Fund in any currency or Composite Currency Unit. The Custodian shall endeavor in good faith to provide notice to the Fund of any exercise of its rights under this Section 7, provided however that its rights shall not be impaired for failure to do so. Any such asset of, or obligation to, the Fund may be transferred to Custodian and any ~~BNY~~ Custodian Affiliate in order to effect the above rights. 8. The Fund agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Fund agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Fund elects to transmit Instructions through an on-line communications system offered by Custodian, the Fund's ’s use thereof shall be subject to the Terms and Conditions attached as Appendix J I hereto. If Custodian receives Instructions which appear on their face to have been transmitted by an Authorized Person via (i) computer facsimile, ~~and Custodian shall provide user and~~ email, the Internet or other insecure electronic method, or (ii) secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys, the Fund understands and ~~authentication keys only to an Authorized Person or a person reasonably believed~~ agrees that Custodian cannot determine the identity of the actual sender of such Instructions and that Custodian shall conclusively presume that such Written Instructions have been sent by ~~Custodian to be~~ an Authorized Person, and the Fund shall be responsible for ensuring that only Authorized Persons transmit such Instructions to Custodian. If the Fund elects (with Custodian’s prior consent) to transmit Instructions through an on-line communications service owned or operated by a third party, the Fund agrees that Custodian shall not be responsible or liable for the reliability or availability of any such service. 9. The books and records pertaining to the Fund which are in possession of Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained by the Custodian or its affiliate as required by the '‘40 Act and the rules thereunder. The Fund, or its authorized representatives, shall have access to such books and records during Custodian's ’s normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by Custodian to the Fund or its authorized representative. Upon the reasonable request of the Fund, Custodian shall provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. 10. It is understood that Custodian is authorized to supply any information regarding the Accounts which is required by any law, regulation or rule now or hereafter in effect. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of a Depository, and with such reports on its own system of internal accounting control including any SAS 70 report (or equivalent report on internal controls) as the Fund may reasonably request from time to time. 11. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement. 12. The Custodian hereby represents and warrants, which representations and warranties shall be continuing and shall be deemed to be reaffirmed upon the performance of each of its duties and responsibilities conducted under this Agreement, that: (a) It is duly organized and existing under the laws of the jurisdiction of its organization, with full power to carry on its business as now conducted, to enter into this Agreement, and to perform its obligations hereunder; (b) This Agreement has been duly authorized, executed and delivered by the Custodian, constitutes a valid and legally binding obligation of the Custodian, enforceable in accordance with its terms, and there is no statute, regulation, rule, order or judgment binding on it, and no provision of its charter or by-laws which would prohibit its execution or performance of this Agreement; (c) It is conducting its business in substantial compliance with all applicable laws and requirements, both state and federal, and has obtained all regulatory licenses, approvals and consents necessary to carry out the services as contemplated hereunder; (d) It will maintain insurance cover appropriate for a prudent company engaged in a similar business to that of the Custodian; (e) It has the skill, facilities, capacity and staff necessary to perform the services under the Agreement; and (f) To the best of the Custodian’s knowledge data, reports, calculations and records (whether in written printed, electronic or other format) provided by the Custodian do not infringe any patent, copyright, or trademark of any person. 13. The Custodian shall maintain and implement business continuity planning and processes reasonably designed to enable the Custodian to continue to fulfil its obligations under this Agreement in the event of the occurrence of any catastrophic event. The Custodian shall provide a written summary of its business continuity and disaster recovery plans and any other information or confirmation in respect of such plans to the Fund at it may reasonably request.

Appears in 1 contract

Samples: Custody Agreement (RBC Funds Trust)

Appears in 1 contract

Samples: Custody Agreement (Rydex Etf Trust)

Appears in 1 contract

Samples: Custody Agreement (Master Mid Cap Growth Trust)

Appears in 1 contract

Samples: Custody Agreement (Northern Lights Variable Trust)

Common use of CONCERNING CUSTODIAN Clause in Contracts