Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that the Custodian (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel. (b) The Custodian shall not be liable to anyone for any action taken or omitted to be taken by it hereunder except in the case of the Custodian's negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action. (c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement. (d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any Securities.
Appears in 11 contracts
Samples: Placement Agreement (Cowlitz Bancorporation), Placement Agreement (First Banks Inc), Placement Agreement (First Banks, Inc)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that 1. The Custodian shall use reasonable care in the performance of its duties hereunder, and, except as hereinafter provided, neither the Custodian (i) nor its nominee shall not be responsible liable for any loss or damage, including counsel fees, resulting from its action or omission to act or otherwise, either hereunder or under any Margin Account Agreement, except for any such loss or damage arising out of its own negligence, bad faith, or willful misconduct or that of its officers, employees, or agents. The Custodian may, with respect to questions of law arising hereunder or under any Margin Account Agreement, apply for and obtain the advice and opinion of counsel to the Fund, at the expense of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities)Fund, or for determining or compelling compliance therewithof its own counsel, at its own expense, and shall not otherwise be bound thereby, (ii) fully protected with respect to anything done or omitted by it in good faith in conformity with such advice or opinion. The Custodian shall be obligated only liable to the Fund for any loss or damage resulting from the performance use of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties the Book-Entry System or obligations any Depository arising by reason of any kind shall be read into this Agreement against negligence or willful misconduct on the part of the CustodianCustodian or any of its employees or agents.
2. Notwithstanding the foregoing, (iii) the Custodian shall be under no obligation to inquire into, and shall not be obligated to take liable for:
(a) The validity (but not the authenticity) of the issue of any legal Securities purchased, sold, or other action hereunder which might in its judgment involve written by or cause it to incur any expense for the Fund, the legality of the purchase, sale or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy writing thereof, and (v) may consult counsel satisfactory to itor the propriety of the amount paid or received therefor, including in-house counselas specified in a Certificate, and the opinion Oral Instructions, or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.Written Instructions;
(b) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor, as specified in a Certificate;
(c) The legality of the declaration or payment of any dividend by the Fund, as specified in a resolution, Certificate, Oral Instructions, or Written Instructions;
(d) The legality of any borrowing by the Fund using Securities as collateral;
(e) The legality of any loan of portfolio Securities, nor shall the Custodian be under any duty or obligation to see to it that the cash 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 of the Fund is adequate collateral for the Fund against any loss it might sustain as a result of such loan, except that this sub-paragraph shall not excuse any liability the Custodian may have for failing to act in accordance with Article X hereof or any Certificate, Oral Instructions, or Written Instructions given in accordance with this Agreement. The Custodian specifically, but not by way of limitation, shall not be under any duty or obligation periodically to check or notify the Fund that the amount of such cash collateral held by it for the Fund is sufficient collateral for the Fund, but such duty or obligation shall be the sole responsibility of the Fund. In addition, the 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 pursuant to Article X of this Agreement 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 the Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; or
(f) The sufficiency or value of any amounts of money and/or Securities held in any Margin Account, Senior Security Account or Collateral Account in connection with transactions by the Fund, except that this sub-paragraph shall not excuse any liability the Custodian may have for failing to establish, maintain, make deposits to or withdrawals from such accounts in accordance with this Agreement. In addition, the Custodian shall be under no duty or obligation to see that 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, to see that any payment received by the 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 the Custodian's receipt or non-receipt of any such payment.
3. The Custodian shall not be liable to anyone for any action taken for, or omitted considered to be taken the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the payment of money, received by it hereunder except in the case on behalf of the Custodian's negligence Fund until the Custodian actually receives such money directly or willful misconduct in breach by the final crediting of the terms account representing the Fund's interest at the Book-Entry System or the Depository.
4. With respect to Securities held in a Depository, except as otherwise provided in paragraph 5(b) of this AgreementArticle III hereof, the Custodian shall have no responsibility and shall not be liable for ascertaining or acting upon any calls, conversions, exchange offers, tenders, interest rate changes or similar matters relating to such Securities, unless the Custodian shall have actually received timely notice from the Depository in which such Securities are held. In no event shall the Custodian have any responsibility or liability for the failure of a Depository to collect, or for the late collection or late crediting by a Depository of any amount payable upon Securities deposited in a Depository which may mature or be liable redeemed, retired, called or otherwise become payable. However, upon receipt of a Certificate from the Fund of an overdue amount on Securities held in a Depository the Custodian shall make a claim against the Depository on behalf of the Fund, except that the 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 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, or alternatively, the Fund shall be subrogated to the rights of the Custodian with respect to such claim against the Depository should it so request in a Certificate. This paragraph shall not, however, excuse any failure by the Custodian to act in accordance with a Certificate, Oral Instructions, or Written Instructions given in accordance with this Agreement.
5. The Custodian shall not be under any duty or obligation to take action to effect collection of any amount due to the Fund from the Transfer Agent of the Fund nor to take any action to effect payment or distribution by the Transfer Agent of the Fund of any amount paid by the Custodian to the Transfer Agent of the Fund in accordance with this Agreement.
6. The 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 the Custodian has timely and properly, in accordance with this Agreement, made due demand or presentation, unless and until (i) it shall be directed to take such action by a Certificate and (ii) it shall be assured to its satisfaction of reimbursement of its costs and expenses in connection with any such action, but the Custodian shall have such a duty if the Securities were not in default on the payable date and the Custodian failed to timely and properly make such demand for indirectpayment and such failure is the reason for the non-receipt of payment.
7. The Custodian may appoint one or more banking institutions as Sub-Custodian or Sub-Custodians, punitiveor as Co-Custodian or Co-Custodians including, special or consequential damage or loss (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 a Certificate or contained in an agreement executed by the Custodian, the Fund and the appointed institution.
8. The Custodian agrees to lost profits) indemnify the Fund against and save the Fund harmless from all liability, claims, losses and demands whatsoever, even if including attorney's fees, howsoever arising or incurred because of the negligence, bad faith or willful misconduct of any Sub-Custodian of the Securities and moneys owned by the Fund, provided such Sub-Custodian is a banking institution located in a foreign country and appointed by the Custodian has been informed pursuant to paragraph 7 of the likelihood of such loss or damage and regardless of the form of actionthis Article.
(c) 9. The Custodian shall have no more not be under any duty or less responsibility obligation (a) to ascertain whether any Securities at any time delivered to, or liability on held by it, for the account of the 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, or (b) to ascertain whether any action transactions by the Fund, whether or omission of not involving the Custodian, are such transactions as may properly be engaged in by the Fund.
10. The Custodian shall be entitled to receive and the Fund agrees to pay to the Custodian all reasonable out-of-pocket expenses and such compensation as may be agreed upon from time to time between the Custodian and the Fund. The Custodian may charge such compensation, and any book-entry depository, securities intermediary or other subcustodian employed such expenses with respect to a Series incurred by the Custodian than in the performance of its duties under this Agreement against any money specifically allocated to such bookSeries. The Custodian shall also be entitled to charge against any money held by it for the account of a Series the amount of any loss, damage, liability or expense, including counsel fees, for which it shall be entitled to reimbursement under the provisions of this Agreement attributable to, or arising out of, its serving as Custodian for such Series. The expenses for which the Custodian shall be entitled to reimbursement hereunder shall include, but are not limited to, the expenses of sub-entry depositorycustodians and foreign branches of the Custodian incurred in settling outside of New York City transactions involving the purchase and sale of Securities of the Fund. Notwithstanding the foregoing or anything else contained in this Agreement to the contrary, securities intermediary the Custodian shall, prior to effecting any charge for compensation, expenses, or any overdraft or indebtedness or interest thereon, submit an invoice therefor to the Fund.
11. The Custodian shall be entitled to rely upon any Certificate, notice or other subcustodian has instrument in writing, Oral Instructions, or Written Instructions received by the Custodian and reasonably believed by the Custodian to be genuine. The Fund agrees to forward to the Custodian a Certificate or facsimile thereof confirming Oral Instructions or Written Instructions in such manner so that such Certificate or facsimile thereof is received by the 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 or Written Instructions are given to the Custodian. The Fund agrees that the fact that such confirming instructions are not received by the Custodian shall in no way affect the validity of the transactions or enforceability of the transactions thereby authorized by the Fund. The Fund agrees that the Custodian shall incur no liability to the Fund in acting upon Oral Instructions or Written Instructions given to the Custodian hereunder concerning such transactions provided such instructions reasonably appear to have been received from an Authorized Person.
12. The Custodian shall be entitled to rely upon any instrument, instruction or notice received by the Custodian and reasonably believed by the Custodian to be given in accordance with the terms and conditions of any Margin Account Agreement. Without limiting the generality of the foregoing, the Custodian shall be under no duty to inquire into, and shall not be liable for, the accuracy of any statements or representations contained in any such instrument or other notice including, without limitation, any specification of any amount to be paid to a broker, dealer, futures commission merchant or Clearing Member. This paragraph shall not excuse any failure by the Custodian to have acted in accordance with any Margin Agreement it has executed or any Certificate, Oral Instructions, or Written Instructions given in accordance with this Agreement.
13. The books and records pertaining to the Fund, as described in Appendix E hereto, which are in the possession of the Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained by the Custodian as required by the Investment Company Act of 1940, as amended, and other applicable securities laws and rules and regulations. The Fund, or the Fund's authorized representatives, shall have access to such books and records during the Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by the Custodian to the Fund or the Fund's authorized representative, and the Fund shall reimburse the Custodian its expenses of providing such copies. Upon reasonable request of the Fund, the Custodian shall provide in hard copy or on micro-film, whichever the Custodian elects, any records included in any such delivery which are maintained by the Custodian on a computer disc, or are similarly maintained, and the Fund shall reimburse the Custodian for its expenses of providing such hard copy or micro-film.
14. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of the Book-Entry System, each Depository or O.C.C., and with such reports on its own systems of internal accounting control as the Fund may reasonably request from time to time.
15. The Custodian shall furnish upon request annually to the Fund a letter prepared by the Custodian's accountants with respect to the Custodian's internal systems and controls in the form generally provided by the Custodian to other investment companies for which the Custodian acts as custodian.
16. The Fund agrees to indemnify the Custodian against and save the Custodian harmless from all liability, claims, losses and demands whatsoever, including attorney's fees, howsoever arising out of, or related to, the Custodian's performance of its obligations under this Agreement, except to the extent that for any such action or omission liability, claim, loss and demand arising out of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith faith, or willful misconduct in breach or that of its officers, employees, or agents.
17. Subject to the foregoing provisions of this Agreement.
(d) The recitals contained herein , the Custodian shall be taken as the statements of each of the Issuers deliver and the Purchaserreceive Securities, and receipts with respect to such Securities, and shall make and receive payments only in accordance with the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations customs prevailing from time to time among brokers or dealers in such Securities and, except as to the validity or sufficiency of may otherwise be provided by this Agreement or the Securitiesas may be in accordance with such customs, shall make payment for Securities only against delivery thereof and deliveries of Securities only against payment therefor.
18. The Custodian shall not 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 accountable for implied in this Agreement against the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any SecuritiesCustodian.
Appears in 10 contracts
Samples: Custody Agreement (Dean Witter California Tax Free Daily Income Trust), Custody Agreement (Witter Dean Capital Growth Securities), Custody Agreement (TCW Dw Balanced Fund)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that The Custodian's compensation shall be paid by the Trust. The Custodian (i) shall not be responsible liable for any action taken in good faith upon receipt of instructions as herein defined or a certified copy of any resolution of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewithBoard of Trustees, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected the genuineness of any such document which it may in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and good faith believe to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counselvalidly executed.
(b) The Custodian shall not be liable for any loss or damage, resulting from its action or omission to anyone act or otherwise, except for any such loss or damage arising out of its own negligence or willful misconduct and except that the Custodian shall be responsible for the acts of any sub-custodian, or agent appointed hereunder and approved by the Board of Trustees of the Trust. At any time, the Custodian may seek advice from legal counsel for the Trust whose legal fees shall be paid at the sole expense of the Trust, with respect to any matter arising in connection with this Agreement, and it shall not be liable for any action taken or omitted to be not taken or suffered by it hereunder except in good faith in accordance with the case opinion of counsel for the Trust. The Trust and not the Custodian shall be responsible for any fee or charges by counsel for the Trust in connection with any such opinion rendered to the Custodian's negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Without limiting the generality of the foregoing, the Custodian shall have be under no more duty or less responsibility or liability on account obligation to inquire into, and shall not be liable for:
(i) The validity of the issue of any action Securities purchased by or omission for the Trust, the legality of the purchase thereof, or the propriety of the amount paid therefor;
(ii) The legality of the issue or sale of any book-entry depositorySecurities by or for the Trust, securities intermediary or other subcustodian employed the propriety of the amount for which the same are sold;
(iii) The legality of the issue or sale of any shares of the Trust, or the sufficiency of the amount to be received therefor;
(iv) The legality of the redemption of any shares of the Trust, or the propriety of the amount to be paid therefor;
(v) The legality of the declaration of any dividend or distribution by the Custodian than any such book-entry depositoryTrust, securities intermediary or other subcustodian has to the Custodian, except to legality of the extent that such action or omission issue of any book-entry depository, securities intermediary Securities of the Trust in payment of any dividend or other subcustodian was caused distribution in shares;
(vi) The legality of the delivery of any Securities held for the Trust for the purpose of collateralizing the obligation of the Trust to repay any moneys borrowed by the Custodian's own negligenceTrust; or
(vii) The legality of the delivery of any Securities held for the Trust for the purpose of lending said securities to any person, bad faith firm or willful misconduct in breach of this Agreementcorporation.
(d) The recitals contained herein 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 by the Custodian on behalf of the Trust, unless and until
(i) the Custodian shall be taken as directed to take such action by written instructions signed in the statements of each name of the Issuers and Trust on behalf of the Purchaser, and Trust by one of its executive officers; and
(ii) the Custodian assumes no responsibility for the correctness shall be assured to its satisfaction of the same. The Custodian makes no representations as to the validity or sufficiency reimbursement of this Agreement or the Securities. its costs and expenses in connection with any such action.
(e) The Custodian shall not be accountable under any duty or obligation to ascertain whether any securities at any time delivered to or held by it for the use account of the Trust, are such as may properly be held by the Trust under the provisions of the Trust's Declaration of Trust or application By-Laws as amended from time to time.
(f) The Trust agrees to indemnify and hold harmless the Custodian and its nominees, sub-custodians, depositories and agent from all taxes, charges, expenses, assessments, liabilities, and losses (including counsel fees) incurred or assessed against it or its nominees, sub-custodians, depositories and agents in connection with the performance of this Agreement, except such as may arise from its or its nominee's, sub-custodian's, depositories' and agent's own negligent action, negligent failure to act, breach of this agreement or willful misconduct. The Custodian is authorized to charge any account of the Trust for such items; provided, however, that, except for overdrafts as to which the Custodian shall have the immediate right of offset, prior to charging any such account for such items, the Custodian shall first have forwarded an invoice for such item to the Trust and 30 days shall have elapsed from the date of such invoice to the Trust without payment of the same having been received by the Custodian. In the event of any advance of funds for any purpose made by the Custodian resulting from orders or instructions of the Trust, or in the event that the Custodian or its nominees, sub-custodians, depositories and agents shall incur or be assessed any taxes, charges, expenses, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct any property at any time held for the accounts of the Trust shall be security therefor. Nothing in this paragraph, however, shall be deemed to apply to transaction and asset holding fees or out of pocket expenses of the Custodian which are payable by Nottingham, and as to such fees and expenses the Custodian shall have no right of offset or security under this paragraph.
(g) The Custodian agrees to indemnify and hold harmless the Trust and Trust's Trustees and officers from all taxes, charges, expenses, assessments, claims liabilities, and losses (including counsel fees) incurred or assumed against any of the Issuers or the Purchaser them as a result of any breach or violation of this Agreement by the Custodian or any act or omission by the Custodian or its Trustees, officers, employees and agents and resulting from their negligence or willful misconduct.
(h) In the event that, pursuant to this Agreement, instructions direct the Custodian to pay for securities on behalf of the Trust, the Trust hereby grants to the Custodian a security interest in such Securities, until the Custodian has been reimbursed by the Trust in immediately available funds. The instructions designating the Securities or to be paid for shall be considered the proceeds requisite description and designation of any Securitiesthe Securities pledged to the Custodian for purposes of the requirements of the Uniform Commercial Code.
(i) The Custodian represents that it is qualified to act as such under section 26(a) of the Investment Company Act of 1940.
Appears in 8 contracts
Samples: Custody Agreement (Capital Management Investment Trust), Custody Agreement (Nottingham Investment Trust Ii), Custody Agreement (Albemarle Investment Trust/)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that 1. The Custodian shall use reasonable care in the performance of its duties hereunder, and, except as hereinafter provided, neither the Custodian (i) nor its nominee shall not be responsible liable for any loss or damage, including counsel fees, resulting from its action or omission to act or otherwise, either hereunder or under any Margin Account Agreement, except for any such loss or damage arising out of its own negligence, bad faith, or willful misconduct or that of its officers, employees, or agents. The Custodian may, with respect to questions of law arising hereunder or under any Margin Account Agreement, apply for and obtain the advice and opinion of counsel to the Fund, at the expense of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities)Fund, or for determining or compelling compliance therewithof its own counsel, at its own expense, and shall not otherwise be bound thereby, (ii) fully protected with respect to anything done or omitted by it in good faith in conformity with such advice or opinion. The Custodian shall be obligated only liable to the Fund for any loss or damage resulting from the performance use of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties the Book-Entry System or obligations any Depository arising by reason of any kind shall be read into this Agreement against negligence or willful misconduct on the part of the CustodianCustodian or any of its employees or agents.
2. Notwithstanding the foregoing, (iii) the Custodian shall be under no obligation to inquire into, and shall not be obligated to take liable for:
(a) The validity (but not the authenticity) of the issue of any legal Securities purchased, sold, or other action hereunder which might in its judgment involve written by or cause it to incur any expense for the Fund, the legality of the purchase, sale or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy writing thereof, and (v) may consult counsel satisfactory to itor the propriety of the amount paid or received therefor, including in-house counselas specified in a Certificate, and the opinion Oral Instructions, or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.Written Instructions;
(b) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor, as specified in a Certificate;
(c) The legality of the declaration or payment of any dividend by the Fund, as specified in a resolution, Certificate, Oral Instructions, or Written Instructions;
(d) The legality of any borrowing by the Fund using Securities as collateral;
(e) The legality of any loan of portfolio Securities, nor shall the Custodian be under any duty or obligation to see to it that the cash 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 of the Fund is adequate collateral for the Fund against any loss it might sustain as a result of such loan, except that this subparagraph shall not excuse any liability the Custodian may have for failing to act in accordance with Article X hereof or any Certificate, Oral Instructions, or Written Instructions given in accordance with this Agreement. The Custodian specifically, but not by way of limitation, shall not be under any duty or obligation periodically to check or notify the Fund that the amount of such cash collateral held by it for the Fund is sufficient collateral for the Fund, but such duty or obligation shall be the sole responsibility of the Fund. In addition, the 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 pursuant to Article X of this Agreement 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 the Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; or
(f) The sufficiency or value of any amounts of money and/or Securities held in any Margin Account, Senior Security Account or Collateral Account in connection with transactions by the Fund, except that this sub-paragraph shall not excuse any liability the Custodian may have for failing to establish, maintain, make deposits to or withdrawals from such accounts in accordance with this Agreement. In addition, the Custodian shall be under no duty or obligation to see that 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, to see that any payment received by the 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 the Custodian's receipt or non-receipt of any such payment.
3. The Custodian shall not be liable to anyone for any action taken for, or omitted considered to be taken the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the payment of money, received by it hereunder except in the case on behalf of the Custodian's negligence Fund until the Custodian actually receives such money directly or willful misconduct in breach by the final crediting of the terms account representing the Fund's interest at the Book-Entry System or the Depository.
4. With respect to Securities held in a Depository, except as otherwise provided in paragraph 5(b) of this AgreementArticle III hereof, the Custodian shall have no responsibility and shall not be liable for ascertaining or acting upon any calls, conversions, exchange offers, tenders, interest rate changes or similar matters relating to such Securities, unless the Custodian shall have actually received timely notice from the Depository in which such Securities are held. In no event shall the Custodian have any responsibility or liability for the failure of a Depository to collect, or for the late collection or late crediting by a Depository of any amount payable upon Securities deposited in a Depository which may mature or be liable redeemed, retired, called or otherwise become payable. However, upon receipt of a Certificate from the Fund of an overdue amount on Securities held in a Depository the Custodian shall make a claim against the Depository on behalf of the Fund, except that the 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 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, or alternatively, the Fund shall be subrogated to the rights of the Custodian with respect to such claim against the Depository should it so request in a Certificate. This paragraph shall not, however, excuse any failure by the Custodian to act in accordance with a Certificate, Oral Instructions, or Written Instructions given in accordance with this Agreement.
5. The Custodian shall not be under any duty or obligation to take action to effect collection of any amount due to the Fund from the Transfer Agent of the Fund nor to take any action to effect payment or distribution by the Transfer Agent of the Fund of any amount paid by the Custodian to the Transfer Agent of the Fund in accordance with this Agreement.
6. The 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 the Custodian has timely and properly, in accordance with this Agreement, made due demand or presentation, unless and until (i) it shall be directed to take such action by a Certificate and (ii) it shall be assured to its satisfaction of reimbursement of its costs and expenses in connection with any such action, but the Custodian shall have such a duty if the Securities were not in default on the payable date and the Custodian failed to timely and properly make such demand for indirectpayment and such failure is the reason for the non-receipt of payment.
7. The Custodian may appoint one or more banking institutions as Sub-Custodian or Sub-Custodians, punitiveor as Co-Custodian or Co-Custodians including, special or consequential damage or loss (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 a Certificate or contained in an agreement executed by the Custodian, the Fund and the appointed institution.
8. The Custodian agrees to lost profits) indemnify the Fund against and save the Fund harmless from all liability, claims, losses and demands whatsoever, even if including attorney's fees, howsoever arising or incurred because of the negligence, bad faith or willful misconduct of any Sub-Custodian of the Securities and moneys owned by the Fund, provided such Sub-Custodian is a banking institution located in a foreign country and appointed by the Custodian has been informed pursuant to paragraph 7 of the likelihood of such loss or damage and regardless of the form of actionthis Article.
(c) 9. The Custodian shall have no more not be under any duty or less responsibility obligation (a) to ascertain whether any Securities at any time delivered to, or liability on held by it, for the account of the 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, or (b) to ascertain whether any action transactions by the Fund, whether or omission of not involving the Custodian, are such transactions as may properly be engaged in by the Fund.
10. The Custodian shall be entitled to receive and the Fund agrees to pay to the Custodian all reasonable out-of-pocket expenses and such compensation as may be agreed upon from time to time between the Custodian and the Fund. The Custodian may charge such compensation, and any book-entry depository, securities intermediary or other subcustodian employed such expenses with respect to a Series incurred by the Custodian than in the performance of its duties under this Agreement against any money specifically allocated to such bookSeries. The Custodian shall also be entitled to charge against any money held by it for the account of a Series the amount of any loss, damage, liability or expense, including counsel fees, for which it shall be entitled to reimbursement under the provisions of this Agreement attributable to, or arising out of, its serving as Custodian for such Series. The expenses for which the Custodian shall be entitled to reimbursement hereunder shall include, but are not limited to, the expenses of sub-entry depositorycustodians and foreign branches of the Custodian incurred in settling outside of New York City transactions involving the purchase and sale of Securities of the Fund. Notwithstanding the foregoing or anything else contained in this Agreement to the contrary, securities intermediary the Custodian shall, prior to effecting any charge for compensation, expenses, or any overdraft or indebtedness or interest thereon, submit an invoice therefor to the Fund.
11. The Custodian shall be entitled to rely upon any Certificate, notice or other subcustodian has instrument in writing, Oral Instructions, or Written Instructions received by the Custodian and reasonably believed by the Custodian to be genuine. The Fund agrees to forward to the Custodian a Certificate or facsimile thereof confirming Oral Instructions or Written Instructions in such manner so that such Certificate or facsimile thereof is received by the 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 or Written Instructions are given to the Custodian. The Fund agrees that the fact that such confirming instructions are not received by the Custodian shall in no way affect the validity of the transactions or enforceability of the transactions thereby authorized by the Fund. The Fund agrees that the Custodian shall incur no liability to the Fund in acting upon Oral Instructions or Written Instructions given to the Custodian hereunder concerning such transactions provided such instructions reasonably appear to have been received from an Authorized Person.
12. The Custodian shall be entitled to rely upon any instrument, instruction or notice received by the Custodian and reasonably believed by the Custodian to be given in accordance with the terms and conditions of any Margin Account Agreement. Without limiting the generality of the foregoing, the Custodian shall be under no duty to inquire into, and shall not be liable for, the accuracy of any statements or representations contained in any such instrument or other notice including, without limitation, any specification of any amount to be paid to a broker, dealer, futures commission merchant or Clearing Member. This paragraph shall not excuse any failure by the Custodian to have acted in accordance with any Margin Agreement it has executed or any Certificate, Oral Instructions, or Written Instructions given in accordance with this Agreement.
13. The books and records pertaining to the Fund, as described in Appendix E hereto, which are in the possession of the Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained by the Custodian as required by the Investment Company Act of 1940, as amended, and other applicable securities laws and rules and regulations. The Fund, or the Fund's authorized representatives, shall have access to such books and records during the Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by the Custodian to the Fund or the Fund's authorized representative, and the Fund shall reimburse the Custodian its expenses of providing such copies. Upon reasonable request of the Fund, the Custodian shall provide in hard copy or on micro-film, whichever the Custodian elects, any records included in any such delivery which are maintained by the Custodian on a computer disc, or are similarly maintained, and the Fund shall reimburse the Custodian for its expenses of providing such hard copy or micro-film.
14. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of the Book-Entry System, each Depository or O.C.C., and with such reports on its own systems of internal accounting control as the Fund may reasonably request from time to time.
15. The Custodian shall furnish upon request annually to the Fund a letter prepared by the Custodian's accountants with respect to the Custodian's internal systems and controls in the form generally provided by the Custodian to other investment companies for which the Custodian acts as custodian.
16. The Fund agrees to indemnify the Custodian against and save the Custodian harmless from all liability, claims, losses and demands whatsoever, including attorney's fees, howsoever arising out of, or related to, the Custodian's performance of its obligations under this Agreement, except to the extent that for any such action or omission liability, claim, loss and demand arising out of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith faith, or willful misconduct in breach or that of its officers, employees, or agents.
17. Subject to the foregoing provisions of this Agreement.
(d) The recitals contained herein , the Custodian shall be taken as the statements of each of the Issuers deliver and the Purchaserreceive Securities, and receipts with respect to such Securities, and shall make and receive payments only in accordance with the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations customs prevailing from time to time among brokers or dealers in such Securities and, except as to the validity or sufficiency of may otherwise be provided by this Agreement or the Securitiesas may be in accordance with such customs, shall make payment for Securities only against delivery thereof and deliveries of Securities only against payment therefor.
18. The Custodian shall not 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 accountable for implied in this Agreement against the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any SecuritiesCustodian.
Appears in 8 contracts
Samples: Custody Agreement (Dean Witter Liquid Asset Fund Inc), Custody Agreement (Witter Dean High Yield Securities Inc), Custody Agreement (Dean Witter Precious Metals & Minerals Trust)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that the Custodian (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation any Issuer's ’s Declaration or Indenture relating to such Issuer's ’s Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Custodian shall not be liable to anyone for any action taken or omitted to be taken by it hereunder except in the case of the Custodian's ’s negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's ’s own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any Securities.
Appears in 7 contracts
Samples: Placement Agreement (Capstead Mortgage Corp), Placement Agreement (Community Bancorp /Vt), Placement Agreement (Sterling Financial Corp /Pa/)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that 1. The Custodian shall use reasonable care in the performance of its duties hereunder, and, except as hereinafter provided, neither the Custodian (i) nor its nominee shall not be responsible liable for any loss or damage, including counsel fees, resulting from its action or omission to act or otherwise, either hereunder or under any Margin Account Agree- ment, except for any such loss or damage arising out of its own negligence, bad faith, or willful misconduct or that of its officers, employees, or agents. The Custodian may, with respect to questions of law arising hereunder or under any Margin Account Agreement, apply for and obtain the advice and opinion of counsel to the Fund, at the expense of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities)Fund, or for determining or compelling compliance therewithof its own counsel, at its own expense, and shall not otherwise be bound thereby, (ii) fully protected with respect to anything done or omitted by it in good faith in conformity with such advice or opinion. The Custodian shall be obligated only liable to the Fund for any loss or damage resulting from the performance use of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties the Book-Entry System or obligations any Depository arising by reason of any kind shall be read into this Agreement against negligence or willful misconduct on the part of the CustodianCustodian or any of its employees or agents.
2. Notwithstanding the foregoing, (iii) the Custodian shall be under no obligation to inquire into, and shall not be obligated to take li- able for:
(a) The validity (but not the authenticity) of the issue of any legal Securities purchased, sold, or other action hereunder which might in its judgment involve written by or cause it to incur any expense for the Fund, the legality of the purchase, sale or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy writing thereof, and (v) may consult counsel satisfactory to itor the propriety of the amount paid or received therefor, including in-house counselas specified in a Certificate, and the opinion Oral Instructions, or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.Written Instructions;
(b) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor, as specified in a Certificate;
(c) The legality of the declaration or payment of any dividend by the Fund, as specified in a resolution, Certificate, Oral Instructions, or Written Instructions;
(d) The legality of any borrowing by the Fund using Securities as collateral;
(e) The legality of any loan of portfolio Securi- ties, nor shall the Custodian be under any duty or obligation to see to it that the cash 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 of the Fund is adequate collateral for the Fund against any loss it might sustain as a result of such loan, except that this sub- paragraph shall not excuse any liability the Custodian may have for failing to act in accordance with Article X hereof or any Certificate, Oral Instructions, or Written Instructions given in accordance with this Agreement. The Custodian specifically, but not by way of limitation, shall not be under any duty or obligation periodically to check or notify the Fund that the amount of such cash collateral held by it for the Fund is sufficient collateral for the Fund, but such duty or obligation shall be the sole responsibility of the Fund. In addition, the Custodian shall be under no duty or obliga- tion to see that any broker, dealer or financial institution to which portfolio Securities of the Fund are lent pursuant to Article X of this Agreement 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 termina- tion of such loan, provided, however, that the Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; or
(f) The sufficiency or value of any amounts of money and/or Securities held in any Margin Account, Senior Security Account or Collateral Account in connection with transactions by the Fund, except that this sub-paragraph shall not excuse any liability the Custodian may have for failing to establish, maintain, make deposits to or withdrawals from such accounts in accordance with this Agreement. In addition, the Custodian shall be under no duty or obligation to see that 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, to see that any payment received by the 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 the Custodian's receipt or non-receipt of any such payment.
3. The Custodian shall not be liable to anyone for any action taken for, or omitted considered to be taken the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the payment of money, received by it hereunder except in the case on behalf of the Custodian's negligence Fund until the Custodian actually receives such money directly or willful misconduct in breach by the final crediting of the terms account representing the Fund's inter- est at the Book-Entry System or the Depository.
4. With respect to Securities held in a Depository, except as otherwise provided in paragraph 5(b) of this AgreementArticle III hereof, the Custodian shall have no responsibility and shall not be liable for ascertaining or acting upon any calls, conversions, exchange offers, tenders, interest rate changes or similar matters relating to such Securities, unless the Custodian shall have actually received timely notice from the Depository in which such Securities are held. In no event shall the Custodian have any responsibility or liability for the failure of a Depository to collect, or for the late col- lection or late crediting by a Depository of any amount pay- able upon Securities deposited in a Depository which may mature or be liable redeemed, retired, called or otherwise become payable. However, upon receipt of a Certificate from the Fund of an overdue amount on Securities held in a Depository the Custodian shall make a claim against the Depository on behalf of the Fund, except that the 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 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, or alternatively, the Fund shall be subrogated to the rights of the Custodian with respect to such claim against the Depository should it so request in a Certificate. This paragraph shall not, however, excuse any failure by the Custodian to act in accordance with a Certificate, Oral Instructions, or Written Instructions given in accordance with this Agreement.
5. The Custodian shall not be under any duty or obliga- tion to take action to effect collection of any amount due to the Fund from the Transfer Agent of the Fund nor to take any action to effect payment or distribution by the Transfer Agent of the Fund of any amount paid by the Custodian to the Transfer Agent of the Fund in accordance with this Agreement.
6. The Custodian shall not be under any duty or obliga- tion 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 the Custodian has timely and properly, in accordance with this Agreement, made due demand or presentation, unless and until (i) it shall be directed to take such action by a Certificate and (ii) it shall be assured to its satisfaction of reimbursement of its costs and expenses in connection with any such action, but the Custodian shall have such a duty if the Securities were not in default on the payable date and the Custodian failed to timely and properly make such demand for indirectpayment and such failure is the reason for the non-receipt of payment.
7. The Custodian may appoint one or more banking institutions as Sub-Custodian or Sub-Custodians, punitiveor as Co-Custodian or Co-Custodians including, special or consequential damage or loss (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 a Certificate or contained in an agreement executed by the Custodian, the Fund and the appointed institution.
8. The Custodian agrees to lost profits) indemnify the Fund against and save the Fund harmless from all liability, claims, losses and demands whatsoever, even if including attorney's fees, howsoever arising or incurred because of the negligence, bad faith or willful misconduct of any Sub-Custodian of the Securities and moneys owned by the Fund, provided such Sub-Custodian is a banking institution located in a foreign country and appointed by the Custodian has been informed pursuant to paragraph 7 of the likelihood of such loss or damage and regardless of the form of actionthis Article.
(c) 9. The Custodian shall have no more not be under any duty or less responsibility obliga- tion (a) to ascertain whether any Securities at any time delivered to, or liability on held by it, for the account of the 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, or (b) to ascertain whether any action transactions by the Fund, whether or omission of not involving the Custodian, are such transactions as may properly be engaged in by the Fund.
10. The Custodian shall be entitled to receive and the Fund agrees to pay to the Custodian all reasonable out-of-pocket expenses and such compensation as may be agreed upon from time to time between the Custodian and the Fund. The Custodian may charge such compensation, and any book-entry depository, securities intermediary or other subcustodian employed such expenses with respect to a Series incurred by the Custodian than in the performance of its duties under this Agreement against any money specifically allocated to such bookSeries. The Custodian shall also be entitled to charge against any money held by it for the account of a Series the amount of any loss, damage, liability or expense, including counsel fees, for which it shall be entitled to reimbursement under the provisions of this Agreement attributable to, or arising out of, its serving as Custodian for such Series. The expenses for which the Custodian shall be entitled to reimbursement hereunder shall include, but are not limited to, the expenses of sub-entry depositorycustodians and foreign branches of the Custodian incurred in settling outside of New York City transactions involving the purchase and sale of Securities of the Fund. Notwithstanding the foregoing or anything else contained in this Agreement to the contrary, securities intermediary the Custodian shall, prior to effecting any charge for compensation, expenses, or any overdraft or indebtedness or interest thereon, submit an invoice therefor to the Fund.
11. The Custodian shall be entitled to rely upon any Certificate, notice or other subcustodian has instrument in writing, Oral Instructions, or Written Instructions received by the Custodian and reasonably believed by the Custodian to be genuine. The Fund agrees to forward to the Custodian a Certificate or facsimile thereof confirming Oral Instructions or Written Instructions in such manner so that such Certificate or facsimile thereof is received by the 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 or Written Instructions are given to the Custodian. The Fund agrees that the fact that such confirming instructions are not received by the Custodian shall in no way affect the validity of the transactions or enforceability of the transactions thereby authorized by the Fund. The Fund agrees that the Custodian shall incur no li- ability to the Fund in acting upon Oral Instructions or Writ- ten Instructions given to the Custodian hereunder concerning such transactions provided such instructions reasonably appear to have been received from an Authorized Person.
12. The Custodian shall be entitled to rely upon any instrument, instruction or notice received by the Custodian and reasonably believed by the Custodian to be given in ac- cordance with the terms and conditions of any Margin Account Agreement. Without limiting the generality of the foregoing, the Custodian shall be under no duty to inquire into, and shall not be liable for, the accuracy of any statements or representations contained in any such instrument or other notice including, without limitation, any specification of any amount to be paid to a broker, dealer, futures commission merchant or Clearing Member. This paragraph shall not excuse any failure by the Custodian to have acted in accordance with any Margin Agreement it has executed or any Certificate, Oral Instructions, or Written Instructions given in accordance with this Agreement.
13. The books and records pertaining to the Fund, as described in Appendix E hereto, which are in the possession of the Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained by the Custodian as required by the Investment Company Act of 1940, as amended, and other applicable securities laws and rules and regula- tions. The Fund, or the Fund's authorized representatives, shall have access to such books and records during the Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any such books and records shall be provided by the Custodian to the Fund or the Fund's authorized representative, and the Fund shall reimburse the Custodian its expenses of providing such copies. Upon reason- able request of the Fund, the Custodian shall provide in hard copy or on micro-film, whichever the Custodian elects, any records included in any such delivery which are maintained by the Custodian on a computer disc, or are similarly maintained, and the Fund shall reimburse the Custodian for its expenses of providing such hard copy or micro-film.
14. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of the Book-Entry System, each Depository or O.C.C., and with such reports on its own systems of internal account- ing control as the Fund may reasonably request from time to time.
15. The Custodian shall furnish upon request annually to the Fund a letter prepared by the Custodian's accountants with respect to the Custodian's internal systems and controls in the form generally provided by the Custodian to other invest- ment companies for which the Custodian acts as custodian.
16. The Fund agrees to indemnify the Custodian against and save the Custodian harmless from all liability, claims, losses and demands whatsoever, including attorney's fees, howsoever arising out of, or related to, the Custodian's performance of its obligations under this Agreement, except to the extent that for any such action or omission liability, claim, loss and demand arising out of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith faith, or willful misconduct in breach or that of its officers, employees, or agents.
17. Subject to the foregoing provisions of this Agreement.
(d) The recitals contained herein Agree- ment, the Custodian shall be taken as the statements of each of the Issuers deliver and the Purchaserreceive Securities, and receipts with respect to such Securities, and shall make and receive payments only in accordance with the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations customs prevail- ing from time to time among brokers or dealers in such Securi- ties and, except as to the validity or sufficiency of may otherwise be provided by this Agreement or the Securitiesas may be in accordance with such customs, shall make payment for Securities only against delivery thereof and deliveries of Securities only against payment therefor.
18. The Custodian shall not have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agree- ment, and no covenant or obligation shall be accountable for implied in this Agreement against the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any SecuritiesCustodian.
Appears in 7 contracts
Samples: Custody Agreement (Witter Dean Developing Growth Securities Trust), Custody Agreement (Dean Witter Retirement Series), Custody Agreement (Dean Witter Tax Free Daily Income Trust)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that 1. Except as hereinafter provided, neither the Custodian (i) nor its nominee shall not be responsible liable for any loss or damage, including counsel fees, resulting from its action or omission to act or otherwise, either hereunder or under any Margin Account Agreement, except for any such loss or damage arising out of its own negligence or willful misconduct. The Custodian may, with respect to questions of law arising hereunder or under any Margin Account Agreement, apply for and obtain the advice and opinion of counsel to the Fund or of its own counsel, at the expense of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewithFund, and shall not otherwise be bound thereby, (ii) fully protected with respect to anything done or omitted by it in good faith in conformity with such advice or opinion. The Custodian shall be obligated only liable to the Fund for any loss or damage resulting from the performance use of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties the Book-Entry System or obligations any Depository arising by reason of any kind shall be read into this Agreement against negligence, misfeasance or willful misconduct on the part of the CustodianCustodian or any of its employees or agents.
2. Without limiting the generality of the foregoing, (iii) the Custodian shall be under no obligation to inquire into, and shall not be obligated to take liable for:
(a) The validity of the issue of any legal Securities purchased, sold or other action hereunder which might in its judgment involve written by or cause it to incur any expense for the Fund, the legality of the purchase, sale or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy writing thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and or the opinion propriety of the amount paid or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.received therefor;
(b) The legality of the issue or sale of any of the Fund's Shares, or the sufficiency of the amount to be received therefor;
(c) The legality of the redemption of any of the Fund's Shares, or the propriety of the amount to be paid therefor;
(d) The legality of the declaration or payment of any dividend by the Fund;
(e) The legality of any borrowing by the Fund using Securities as collateral;
(f) The legality of any loan of portfolio Securities pursuant to Article XIV of this Agreement, nor shall the Custodian be under any duty or obligation to see to it that any cash 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 of the Fund is adequate collateral for the Fund against any loss it might sustain as a result of such loan. The Custodian specifically, but not by way of limitation, shall not be under any duty or obligation periodically to check or notify the Fund that the amount of such cash collateral held by it for the Fund is sufficient collateral for the Fund, but such duty or obligation shall be the sole responsibility of the Fund. In addition, the 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 pursuant to Article XIV of this Agreement makes payment to it of any dividends or interest which are payable to or for the account of the applicable Series of the Fund during the period of such loan or at the termination of such loan, provided, however, that the Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; or
(g) The sufficiency or value of any amounts of money and/or Securities held in any Margin Account, Segregated Security Account or Collateral Account in connection with transactions by the Fund. In addition, the Custodian shall be under no duty or obligation to see that 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, to see that any payment received by the 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 the Custodian's receipt or non-receipt of any such payment; provided however that the Custodian, upon the Fund's written request, shall, as Custodian, demand from any broker, dealer, futures commission merchant or Clearing Member identified by the Fund the payment of any variation margin payment or similar payment that the Fund asserts it is entitled to receive pursuant to the terms of a Margin Account Agreement or otherwise from such broker, dealer, futures commission merchant or Clearing Member.
3. The Custodian shall not be liable to anyone for any action taken for, or omitted considered to be taken the Custodian of, any money, whether or not represented by any check, draft or other instrument for the payment of money, received by it hereunder except on behalf of the Fund until the 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 the Depository.
4. The Custodian shall have no responsibility and shall not be liable for ascertaining or acting upon any calls, conversions, exchange, offers, tenders, interest rate changes or similar matters relating to Securities held in the case of Depository, unless the Custodian's negligence or willful misconduct in breach of Custodian shall have actually received timely notice from the terms of this AgreementDepository. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less any responsibility or liability on account for the failure of the Depository to collect, or for the late collection or late crediting by the Depository of any action amount payable upon Securities deposited in the Depository which may mature or omission be redeemed, retired, called or otherwise become payable. However, upon receipt of a Certificate from the Fund of an overdue amount on Securities held in the Depository, the Custodian shall make a claim against the Depository on behalf of the Fund, except that the Custodian shall not be under any book-entry depositoryobligation to appear in, securities intermediary prosecute or other subcustodian employed defend any action, suit or proceeding in respect to any Securities held by the Custodian than any such book-entry depositoryDepository which in its opinion may involve it in expense or liability, securities intermediary or other subcustodian has unless indemnity satisfactory to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreementit against all expense and liability be furnished as often as may be required.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities5. The Custodian shall not be accountable under any duty or obligation to take action to effect collection of any amount due to the Fund from the Transfer Agent of the Fund nor to take any action to effect payment or distribution by the Transfer Agent of the Fund of any amount paid by the Custodian to the Transfer Agent of the Fund in accordance with this Agreement.
6. The 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 a Certificate and (ii) it shall be assured to its satisfaction of reimbursement of its costs and expenses in connection with any such action.
7. The Custodian may appoint one or more banking institutions as Depository or Depositories or as Sub-Custodian or Sub-Custodians, including, but not limited to, banking institutions located in foreign countries, of Securities and moneys at any time owned by the Fund, upon terms and conditions approved in the Certificate, which shall, if requested by the Custodian, be accompanied by an approving resolution of the Fund's Board adopted in accordance with Rule 17f-5 under the Investment Company Act of 1940, as amended. Notwithstanding anything to the contrary contained in this Agreement, the Custodian shall hold harmless and indemnify the Fund from and against any losses, actions, claims, demands, expenses and proceedings, including counsel fees, that occur as a result of any act or omission of any Foreign Sub-Custodian or Depository with respect to the safekeeping of moneys and securities of the Fund.
8. The Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it for the use account of the Fund are such as properly may be held by the Fund under the provisions of its organization documents.
(a) The Custodian shall be entitled to receive and the Fund agrees to pay to the Custodian all reasonable out-of-pocket expenses and such compensation and fees as are specified on Schedule A hereto. The Custodian shall not deem amounts payable in respect of foreign custodial services to be out-of-pocket expenses, it being the parties' intention that all fees for such services shall be as set forth on Schedule B hereto and shall be provided for the term of this Agreement without any automatic or application unilateral increase. The Custodian shall have the right to unilaterally increase the figures on Schedule A on or after each succeeding March 1 by an amount equal to 50% of the increase in the Consumer Price Index for the calendar year ending on the December 31 immediately preceding the calendar year in which such March 1 occurs, provided, however, that during each such annual period commencing on a March 1, the aggregate increase during such period shall not be in excess of 10%. Any increase by the Custodian shall be specified in a written notice delivered to the Fund at least thirty days prior to the effective date of the increase. The Custodian may charge such compensation and any expenses incurred by the Custodian in the performance of its duties pursuant to such agreement against any money held by it for the account of the Fund. The Custodian shall also be entitled to charge against any money held by it for the account of the Fund the amount of any loss, damage, liability or expense, including counsel fees, for which it shall be entitled to reimbursement under the provisions of this Agreement. The expenses which the Custodian may charge against the account of the Fund include, but are not limited to, the expenses of Sub-Custodians and foreign branches of the Custodian incurred in settling outside of New York City transactions involving the purchase and sale of Securities of the Fund.
(a) The Fund shall receive a credit for each calendar month against such compensation and fees of the Custodian as may be payable by the Fund with respect to such calendar month in an amount equal to the aggregate of its Earnings Credit for such calendar month. In no event may any Earnings Credits be carried forward to any fiscal year other than the fiscal year in which it was earned, or, unless permitted by applicable law, transferred to, or utilized by, any other person or entity, provided that any such transferred Earnings Credit can be used only to offset compensation and fees of the Custodian for services rendered to such transferee and cannot be used to pay the Custodian's out-of-pocket expenses. For purposes of this sub-section (b), the Fund is permitted to transfer Earnings Credits only to The Dreyfus Corporation, its affiliates and/or any investment company now or in the future for which The Dreyfus Corporation or any of its affiliates acts as the Issuers sole investment adviser. For purposes of this subsection (b), a fiscal year shall mean the twelve-month period commencing on the effective date of this Agreement and on each anniversary thereof.
10. The Custodian shall be entitled to rely upon any Certificate, notice or other instrument in writing received by the Custodian and reasonably believed by the Custodian to be a Certificate. The Custodian shall be entitled to rely upon any Oral Instructions and any Written Instructions actually received by the Custodian pursuant to Article IV or XI hereof. The Fund agrees to forward to the Custodian a Certificate or facsimile thereof, confirming such Oral Instructions or Written Instructions in such manner so that such Certificate or facsimile thereof is received by the Custodian, whether by hand delivery, telex or otherwise, by the close of business of the same day that such Oral Instructions or Written Instructions are given to the Custodian. The Fund agrees that the fact that such confirming instructions are not received by the Custodian shall in no way affect the validity of the transactions or enforceability of the transactions hereby authorized by the Fund. The Fund agrees that the Custodian shall incur no liability to the Fund in acting upon Oral Instructions given to the Custodian hereunder concerning such transactions, provided such instructions reasonably appear to have been received from an Authorized Person.
11. The Custodian shall be entitled to rely upon any instrument, instruction or notice received by the Custodian and reasonably believed by the Custodian to be given in accordance with the terms and conditions of any Margin Account Agreement. Without limiting the generality of the foregoing, the Custodian shall be under no duty to inquire into, and shall not be liable for, the accuracy of any statements or representations contained in any such instrument or other notice including, without limitation, any specification of any amount to be paid to a broker, dealer, futures commission merchant or Clearing Member.
12. The books and records pertaining to the Fund which are in the possession of the Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the Investment Company Act of 1940, as amended, and other applicable securities laws and rules and regulations. The Fund, or the Purchaser Fund's authorized representatives, shall have access to such books and records during the Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any Securities such books and records shall be provided by the Custodian to the Fund or the proceeds Fund's authorized representative at the Fund's expense.
13. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of the Book-Entry System or the Depository, or O.C.C., and with such reports on its own systems of internal accounting control as the Fund may reasonably request from time to time.
14. The Fund agrees to indemnify the Custodian against and save the Custodian harmless from all liability, claims, losses and demands whatsoever, including attorney's fees, howsoever arising or incurred because of or in connection with the Custodian's payment or non-payment of checks pursuant to paragraph 6 of Article XII as part of any check redemption privilege program of the Fund, except for any such liability, claim, loss and demand arising out of the Custodian's own negligence or willful misconduct.
15. Subject to the foregoing provisions of this Agreement, the Custodian may deliver and receive Securities, and receipts with respect to such Securities, and arrange for payments to be made and received by the Custodian in accordance with the customs prevailing from time to time among brokers or dealers in such Securities.
16. The 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 in this Agreement against the Custodian.
Appears in 6 contracts
Samples: Custody Agreement (Dreyfus New York Tax Exempt Bond Fund Inc /New/), Custody Agreement (Dreyfus Intermediate Municipal Bond Fund Inc), Custody Agreement (Dreyfus International Funds Inc)
Concerning the Custodian. A. Except as otherwise provided herein, the Custodian shall not be liable for any loss or damage resulting from its action or omission to act or otherwise, except for any such loss or damage arising out of its own gross negligence or willful misconduct. The Fund shall defend, indemnify and hold harmless the Custodian and its directors, officers, employees and agents with respect to any loss, claim, liability or cost (aincluding reasonable attorneys' fees) Each Interested Party arising or alleged to arise from or relating to the Fund's duties hereunder or any other action or inaction of the Fund or its Trustees, officers, employees or agents, except such as may arise from the negligent action, omission, willful misconduct or breach of this Agreement by the Custodian. The Custodian may, with respect to questions of law, apply for and obtain the advice and opinion of counsel, at the expense of the Fund, and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with the advice or opinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
B. Without limiting the generality of the foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no obligation to inquire into, and shall not be liable for:
1.) The validity of the issue of any Securities purchased by or for the account of the Fund, the legality of the purchase thereof, or the propriety of the amount paid therefor;
2.) The legality of the sale of any Securities by or for the account of the Fund, or the propriety of the amount for which the same are sold;
3.) The legality of the issue or sale of any shares of the Fund, or the sufficiency of the amount to be received therefor;
4.) The legality of the redemption of any shares of the Fund, or the propriety of the amount to be paid therefor;
5.) The legality of the declaration or payment of any dividend by the Fund in respect of shares of the Fund;
6.) The legality of any borrowing by the Fund on behalf of the Fund, using Securities as collateral;
C. The Custodian shall not be under any duty or obligation to take action to effect collection of any amount due to the Fund from any Dividend and Transfer Agent of the Fund nor to take any action to effect payment or distribution by any Dividend and Transfer Agent of the Fund of any amount paid by the Custodian to any Dividend and Transfer Agent of the Fund in accordance with this Agreement.
D. Notwithstanding Section D of Article V, the 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 a Certificate and (ii) it shall be assured to its satisfaction (including prepayment thereof) of reimbursement of its costs and expenses in connection with any such action.
E. The Fund acknowledges and hereby authorizes the Custodian to hold Securities through its various agents described in Appendix B annexed hereto. The Fund hereby represents that such authorization has been duly approved by the Board of Trustees of the Fund as required by the Act. The Custodian acknowledges that although certain Fund Assets are held by its agents, the Custodian remains primarily liable for the safekeeping of the Fund Assets. In addition, the Fund acknowledges that the Custodian may appoint one or more financial institutions, as agent or agents or as sub-custodian or sub-custodians, including, but not limited to, banking institutions located in foreign countries, for the purpose of holding Securities and moneys at any time owned by the Fund. The Custodian shall not be relieved of any obligation or liability under this Agreement in connection with the appointment or activities of such agents or sub-custodians. Any such agent or sub-custodian shall be qualified to serve as such for assets of investment companies registered under the Act. Upon request, the Custodian shall promptly forward to the Fund any documents it receives from any agent or sub-custodian appointed hereunder which may assist trustees of registered investment companies fulfill their responsibilities under Rule 17f-5 of the Act.
F. The Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it for the account of the Fund are such as properly may be held by the Fund under the provisions of the Articles of Incorporation and the Fund's By-Laws.
G. The Custodian shall treat all records and other information relating to the Fund and the Fund Assets as confidential and shall not disclose any such records or information to any other person unless (i) the Fund shall have consented thereto in writing or (ii) such disclosure is required by law.
H. The Custodian shall be entitled to receive and the Fund agrees to pay to the Custodian such compensation as shall be determined pursuant to Appendix D attached hereto, or as shall be determined pursuant to amendments to such Appendix D. The Custodian shall be entitled to charge against any money held by it for the account of the Fund, the amount of any of its fees, any loss, damage, liability or expense, including counsel fees. The expenses which the Custodian may charge against the account of the Fund include, but are not limited to, the expenses of agents or sub-custodians incurred in settling transactions involving the purchase and sale of Securities of the Fund.
I. The Custodian shall be entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the Custodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, whether by hand delivery, facsimile or otherwise, on the same business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to receive such confirming instructions shall in no way affect the validity of the transactions or enforceability of the transactions hereby authorized by the Fund. The Fund agrees that the Custodian shall incur no liability to the Fund for acting upon Oral Instructions given to the Custodian hereunder concerning such transactions.
J. The Custodian will (i) shall not be responsible for any set up and maintain proper books of account and complete records of all transactions in the accounts maintained by the Custodian hereunder in such manner as will meet the obligations of the agreements referred Fund under the Act, with particular attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder and those records are the property of the Fund, and (ii) preserve for the periods prescribed by applicable Federal statute or described herein (including without limitation any Issuer's Declaration or Indenture relating regulation all records required to be so preserved. All such Issuer's Securities), or for determining or compelling compliance therewithbooks and records shall be the property of the Fund, and shall not otherwise be bound thereby, (ii) open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Custodian shall be obligated only for send to the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of Fund any kind shall be read into this Agreement against or report received on the part systems of internal accounting control of the Custodian, (iii) shall not be obligated or its agents or sub-custodians, as the Fund may reasonably request from time to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by time.
L. The Custodian performs only the proper person, services of a custodian and shall have no responsibility for determining the accuracy thereofmanagement, investment or reinvestment of the Securities from time to time owned by the Fund. The Custodian is not a selling agent for shares of the Fund and (v) may consult counsel satisfactory performance of its duties as custodian shall not be deemed to it, including in-house counsel, and be a recommendation to the opinion Fund's depositors or advice others of such counsel in any instance shall be full and complete authorization and protection in respect shares of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counselFund as an investment.
(b) M. The Custodian shall not be liable take all reasonable action, that the Fund may from time to anyone for any action taken or omitted time request, to be taken by it hereunder except assist the Fund in obtaining favorable opinions from the case of Fund's independent accountants, with respect to the Custodian's negligence or willful misconduct activities hereunder, in breach connection with the preparation of the terms of this Agreement. In no event shall Fund's Form N-1A, Form N-SAR, or other annual reports to the Securities and Exchange Commission.
N. The Fund hereby pledges to and grants the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited a security interest in any Fund Assets to lost profits) whatsoever, even if secure the Custodian has been informed payment of any liabilities of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has Fund to the Custodian, except whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian. This pledge is in addition to any other pledge of collateral by the Fund to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any Securities.
Appears in 5 contracts
Samples: Custody Agreement (Monterey Mutual Fund), Custody Agreement (Delta Funds Inc), Custody Agreement (Sage Tso Trust)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that Neither the Custodian (i) shall not be responsible for nor any of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities)its directors, affiliates, officers, agents, or for determining or compelling compliance therewithemployees, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Custodian shall not be liable to anyone for any action taken or omitted to be taken by it or them hereunder or in connection herewith in good faith and believed by it or them to be within the purview of this Custodial Agreement, except in the case of the Custodian's negligence for its or their own gross negligence, bad faith or willful misconduct in breach of the terms of this Agreementmisconduct. In no event shall the Custodian or its directors, affiliates, officers, agents, or employees be held liable for indirectany special, punitive, special indirect or consequential damage damages resulting from any action taken or loss (including but not limited omitted to lost profits) whatsoeverbe taken by it or them hereunder or in connection herewith, even if advised of the possibility of such damages. The Servicer agrees to indemnify, from the Servicer's own funds, and hold the Custodian has been informed and its directors, affiliates, officers, agents, and employees harmless against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, or disbursements of any kind or nature whatsoever, including reasonable attorneys' fees, that may be imposed on, incurred by or asserted against it or them in any way relating to or arising out of liabilities, obligations, judgments, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements other than those which were imposed on, incurred by or asserted against the Custodian, because of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed breach by the Custodian than any such book-entry depositoryof its obligations hereunder, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian which breach was caused by the Custodian's own negligence, bad faith faith, or willful misconduct on the part of the Custodian or any of its directors, affiliates, officers, agents, or employees. The indemnification set forth in breach this section shall survive any termination of this Agreement.
(d) The recitals contained herein shall be taken as Custodial Agreement and the statements of each termination and removal of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any SecuritiesCustodian.
Appears in 4 contracts
Samples: Custodial Agreement (C-Bass 2006-Cb6 Trust), Pooling and Servicing Agreement (SABR LLC Trust 2006-Cb1), Pooling and Servicing Agreement (GSAMP Trust 2006-He2)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that The Custodian's compensation shall be paid by the Trust. The Custodian (i) shall not be responsible liable for any action taken in good faith upon receipt of instructions as herein defined or a certified copy of any resolution of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewithBoard of Trustees, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected the genuineness of any such document which it may in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and good faith believe to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counselvalidly executed.
(b) The Custodian shall not be liable for any loss or damage, resulting from its action or omission to anyone act or otherwise, except for any such loss or damage arising out of its own negligence or willful misconduct and except that the Custodian shall be responsible for the acts of any sub-custodian, or agent appointed hereunder and approved by the Board of Trustees of the Trust. At any time, the Custodian may seek advice from legal counsel for the Trust whose legal fees shall be paid at the sole expense of the Trust, with respect to any matter arising in connection with this Agreement, and it shall not be liable for any action taken or omitted to be not taken or suffered by it hereunder except in good faith in accordance with the case opinion of counsel for the Trust. The Trust and not the Custodian shall be responsible for any fee or charges by counsel for the Trust in connection with any such opinion rendered to the Custodian's negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Without limiting the generality of the foregoing, the Custodian shall have be under no more duty or less responsibility or liability on account obligation to inquire into, and shall not be liable for:
(i) The validity of the issue of any action Securities purchased by or omission for the Trust, the legality of the purchase thereof, or the propriety of the amount paid therefor;
(ii) The legality of the issue or sale of any book-entry depositorySecurities by or for the Trust, securities intermediary or other subcustodian employed the propriety of the amount for which the same are sold;
(iii) The legality of the issue or sale of any shares of the Trust, or the sufficiency of the amount to be received therefor;
(iv) The legality of the redemption of any shares of the Trust, or the propriety of the amount to be paid therefor;
(v) The legality of the declaration of any dividend or distribution by the Custodian than any such book-entry depositoryTrust, securities intermediary or other subcustodian has to the Custodian, except to legality of the extent that such action or omission issue of any book-entry depository, securities intermediary Securities of the Trust in payment of any dividend or other subcustodian was caused distribution in shares;
(vi) The legality of the delivery of any Securities held for the Trust for the purpose of collateralizing the obligation of the Trust to repay any moneys borrowed by the Custodian's own negligenceTrust; or
(vii) The legality of the delivery of any Securities held for the Trust for the purpose of lending said securities to any person, bad faith firm or willful misconduct in breach of this Agreementcorporation.
(d) The recitals contained herein 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 by the Custodian on behalf of the Trust, unless and until
(i) the Custodian shall be taken as directed to take such action by written instructions signed in the statements of each name of the Issuers and Trust on behalf of the Purchaser, and Trust by one of its executive officers; and
(ii) the Custodian assumes no responsibility for the correctness shall be assured to its satisfaction of the same. The Custodian makes no representations as to the validity or sufficiency reimbursement of this Agreement or the Securities. its costs and expenses in connection with any such action.
(e) The Custodian shall not be accountable under any duty or obligation to ascertain whether any securities at any time delivered to or held by it for the use account of the Trust, are such as may properly be held by the Trust under the provisions of the Trust's Declaration of Trust or application By-Laws as amended from time to time.
(f) The Trust agrees to indemnify and hold harmless the Custodian and its nominees, sub-custodians, depositories and agent from all taxes, charges, expenses, assessments, liabilities, and losses (including counsel fees) incurred or assessed against it or its nominees, sub-custodians, depositories and agents in connection with the performance of this Agreement, except such as may arise from its or its nominee's, sub-custodian's, depositories' and agent's own negligent action, negligent failure to act, breach of this agreement or willful misconduct. The Custodian is authorized to charge any account of the Trust for such items; provided, however, that, except for overdrafts as to which the Custodian shall have the immediate right of offset, prior to charging any such account for such items, the Custodian shall first have forwarded an invoice for such item to the Trust and 30 days shall have elapsed from the date of such invoice to the Trust without payment of the same having been received by the Custodian. In the event of any advance of funds for any purpose made by the Custodian resulting from orders or instructions of the Trust, or in the event that the Custodian or its nominees, sub-custodians, depositories and agents shall incur or be assessed any taxes, charges, expenses, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct any property at any time held for the accounts of the Trust shall be security therefor. Nothing in this paragraph, however, shall be deemed to apply to transaction and asset holding fees or out of pocket expenses of the Custodian which are payable by Nottingham and/or NCSS, and as to such fees and expenses the Custodian shall have no right of offset or security under this paragraph.
(g) The Custodian agrees to indemnify and hold harmless the Trust and Trust's Trustees and officers from all taxes, charges, expenses, assessments, claims liabilities, and losses (including counsel fees) incurred or assumed against any of the Issuers or the Purchaser them as a result of any breach or violation of this Agreement by the Custodian or any act or omission by the Custodian or its Trustees, officers, employees and agents and resulting from their negligence or willful misconduct.
(h) In the event that, pursuant to this Agreement, instructions direct the Custodian to pay for securities on behalf of the Trust, the Trust hereby grants to the Custodian a security interest in such Securities, until the Custodian has been reimbursed by the Trust in immediately available funds. The instructions designating the Securities or to be paid for shall be considered the proceeds requisite description and designation of any Securitiesthe Securities pledged to the Custodian for purposes of the requirements of the Uniform Commercial Code.
(i) The Custodian represents that it is qualified to act as such under section 26(a) of the Investment Company Act of 1940.
Appears in 4 contracts
Samples: Custody Agreement (Shanklin Investment Trust), Custody Agreement (Woodlawn Funds Trust), Custody Agreement (Blue Ridge Funds Trust)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that the Custodian (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securitiesthe Declaration), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Custodian shall not be liable to anyone for any action taken or omitted to be taken by it hereunder except in the case of the Custodian's negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the PurchaserCompany, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Capital Securities. The Custodian shall not be accountable for the use or application by any of the Issuers or the Purchaser Company of any Capital Securities or the proceeds of any Capital Securities.
Appears in 3 contracts
Samples: Placement Agreement (Redwood Empire Bancorp), Placement Agreement (Citizens Banking Corp), Subscription Agreement (Redwood Empire Bancorp)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that the Custodian (i) shall not be responsible Except for any of its willful misconduct, gross negligence or bad faith, the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) Custodian may conclusively rely on and shall be fully protected in acting or refraining from acting upon any written certificate, instrument, opinion, notice, letter, instruction, instrumententitlement order, statement, certificate, request telegram or other document furnished delivered to it hereunder and believed by that in good faith it reasonably believes to be genuine and to have that has been signed or presented by the proper personparty or parties. Except for its willful misconduct, gross negligence or bad faith, the Custodian may rely conclusively on and shall have no responsibility for determining be fully protected in acting upon the accuracy thereof, and written instructions of any designated officer of the Administrative Agent.
(vii) The Custodian may consult counsel satisfactory to it, including in-house counsel, it and the advice or opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion or advice of such counsel.
(biii) The Custodian shall not be liable to anyone for any action error of judgment, or for any act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything that it hereunder may do or refrain from doing in connection herewith except in the case of the Custodian's its willful misconduct, gross negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of actionbad faith.
(civ) The Custodian makes no warranty or representation and shall have no responsibility as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Loan Assets or the Loan Asset Documents, and will not be required to and will not make any representations as to the validity, collectibility, sufficiency or value of any of the Loan Assets. The Custodian shall not be obligated to take any legal action hereunder that might in its sole judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(v) The Custodian shall have no more duties or less responsibility responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to obligations shall be implied in this Agreement against the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(dvi) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable required to expend or risk its own funds in the performance of its duties hereunder.
(vii) It is expressly agreed and acknowledged that the Custodian is not guaranteeing performance of or assuming any liability for the use or application by any obligations of the Issuers other parties hereto or any parties to the Loan Assets.
(viii) In case any reasonable question arises as to its duties hereunder, the Custodian may request written instructions from the Administrative Agent, and shall be entitled at all times to refrain from taking any action unless it has received written instructions from the Administrative Agent. Notwithstanding the preceding sentence, and subject to Section 7.13(d), the Administrative Agent hereby expressly instructs the Custodian, prior to the occurrence of the Termination Date, to take any action in respect of the Loan Assets and the Loan Asset Documents solely in accordance with written instructions of the Manager unless and until receipt by the Custodian of written notice from the Administrative Agent after an Event of Default has occurred and is continuing, and thereafter to take any action in respect of the Loan Assets and the Loan Asset Documents solely in accordance with written instructions of the Administrative Agent. The Custodian shall in all events have no liability, risk or cost for any action taken pursuant to and in compliance with the written instruction of the Administrative Agent or, prior to the occurrence of the Termination Date, the Manager. Absent written instructions from the Borrower or the Purchaser Manager as to the disposition of any Securities or funds pursuant to Section 2.7, the proceeds of any SecuritiesCustodian shall hold all funds uninvested until it receives written direction from the Administrative Agent.
Appears in 2 contracts
Samples: Credit, Security and Management Agreement (Saratoga Investment Corp.), Credit, Security and Management Agreement (GSC Investment Corp.)
Concerning the Custodian. A. Except as otherwise provided herein, the Custodian shall not be liable for any loss or damage resulting from its action or omission to act or otherwise, except for any such loss or damage arising out of its own gross negligence or willful misconduct. The Fund shall defend, indemnify and hold harmless the Custodian and its directors, officers, employees and agents with respect to any loss, claim, liability or cost (aincluding reasonable attorneys' fees) Each Interested Party arising or alleged to arise from or relating to the Fund's duties hereunder or any other action or inaction of the Fund or its Directors, officers, employees or agents, except such as may arise from the negligent action, omission, willful misconduct or breach of this Agreement by the Custodian. The Custodian may, with respect to questions of law, apply for and obtain the advice and opinion of counsel, at the expense of the Fund, and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with the advice or opinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
B. Without limiting the generality of the foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no obligation to inquire into, and shall not be liable for:
1.) The validity of the issue of any Securities purchased by or for the account of the Fund, the legality of the purchase thereof, or the propriety of the amount paid therefor;
2.) The legality of the sale of any Securities by or for the account of the Fund, or the propriety of the amount for which the same are sold;
3.) The legality of the issue or sale of any shares of the Fund, or the sufficiency of the amount to be received therefor;
4.) The legality of the redemption of any shares of the Fund, or the propriety of the amount to be paid therefor;
5.) The legality of the declaration or payment of any dividend by the Fund in respect of shares of the Fund;
6.) The legality of any borrowing by the Fund on behalf of the Fund, using Securities as collateral;
C. The Custodian shall not be under any duty or obligation to take action to effect collection of any amount due to the Fund from any Dividend and Transfer Agent of the Fund nor to take any action to effect payment or distribution by any Dividend and Transfer Agent of the Fund of any amount paid by the Custodian to any Dividend and Transfer Agent of the Fund in accordance with this Agreement.
D. Notwithstanding Section D of Article V, the 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 a Certificate and (ii) it shall be assured to its satisfaction (including prepayment thereof) of reimbursement of its costs and expenses in connection with any such action.
E. The Fund acknowledges and hereby authorizes the Custodian to hold Securities through its various agents described in Appendix B annexed hereto. The Fund hereby represents that such authorization has been duly approved by the Board Of Directors of the Fund as required by the Act. The Custodian acknowledges that although certain Fund Assets are held by its agents, the Custodian remains primarily liable for the safekeeping of the Fund Assets. In addition, the Fund acknowledges that the Custodian may appoint one or more financial institutions, as agent or agents or as sub-custodian or sub-custodians, including, but not limited to, banking institutions located in foreign countries, for the purpose of holding Securities and moneys at any time owned by the Fund. The Custodian shall not be relieved of any obligation or liability under this Agreement in connection with the appointment or activities of such agents or sub-custodians. Any such agent or sub-custodian shall be qualified to serve as such for assets of investment companies registered under the Act. Upon request, the Custodian shall promptly forward to the Fund any documents it receives from any agent or sub-custodian appointed hereunder which may assist trustees of registered investment companies fulfill their responsibilities under Rule 17f-5 of the Act.
F. The Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it for the account of the Fund are such as properly may be held by the Fund under the provisions of the Articles of Incorporation and the Fund's By-Laws.
G. The Custodian shall treat all records and other information relating to the Fund and the Fund Assets as confidential and shall not disclose any such records or information to any other person unless (i) the Fund shall have consented thereto in writing or (ii) such disclosure is required by law.
H. The Custodian shall be entitled to receive and the Fund agrees to pay to the Custodian such compensation as shall be determined pursuant to Appendix D attached hereto, or as shall be determined pursuant to amendments to such Appendix D. The Custodian shall be entitled to charge against any money held by it for the account of the Fund, the amount of any of its fees, any loss, damage, liability or expense, including counsel fees. The expenses which the Custodian may charge against the account of the Fund include, but are not limited to, the expenses of agents or sub-custodians incurred in settling transactions involving the purchase and sale of Securities of the Fund.
I. The Custodian shall be entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the Custodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, whether by hand delivery, facsimile or otherwise, on the same business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to receive such confirming instructions shall in no way affect the validity of the transactions or enforceability of the transactions hereby authorized by the Fund. The Fund agrees that the Custodian shall incur no liability to the Fund for acting upon Oral Instructions given to the Custodian hereunder concerning such transactions.
J. The Custodian will (i) shall not be responsible for any set up and maintain proper books of account and complete records of all transactions in the accounts maintained by the Custodian hereunder in such manner as will meet the obligations of the agreements referred Fund under the Act, with particular attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder and those records are the property of the Fund, and (ii) preserve for the periods prescribed by applicable Federal statute or described herein (including without limitation any Issuer's Declaration or Indenture relating regulation all records required to be so preserved. All such Issuer's Securities), or for determining or compelling compliance therewithbooks and records shall be the property of the Fund, and shall not otherwise be bound thereby, (ii) open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Custodian shall be obligated only for send to the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of Fund any kind shall be read into this Agreement against or report received on the part systems of internal accounting control of the Custodian, (iii) shall not be obligated or its agents or sub-custodians, as the Fund may reasonably request from time to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by time.
L. The Custodian performs only the proper person, services of a custodian and shall have no responsibility for determining the accuracy thereofmanagement, investment or reinvestment of the Securities from time to time owned by the Fund. The Custodian is not a selling agent for shares of the Fund and (v) may consult counsel satisfactory performance of its duties as custodian shall not be deemed to it, including in-house counsel, and be a recommendation to the opinion Fund's depositors or advice others of such counsel in any instance shall be full and complete authorization and protection in respect shares of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counselFund as an investment.
(b) M. The Custodian shall not be liable take all reasonable action, that the Fund may from time to anyone for any action taken or omitted time request, to be taken by it hereunder except assist the Fund in obtaining favorable opinions from the case of Fund's independent accountants, with respect to the Custodian's negligence or willful misconduct activities hereunder, in breach connection with the preparation of the terms of this Agreement. In no event shall Fund's Form N-1A, Form N-SAR, or other annual reports to the Securities and Exchange Commission.
N. The Fund hereby pledges to and grants the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited a security interest in any Fund Assets to lost profits) whatsoever, even if secure the Custodian has been informed payment of any liabilities of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has Fund to the Custodian, except whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian. This pledge is in addition to any other pledge of collateral by the Fund to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any Securities.
Appears in 2 contracts
Samples: Custody Agreement (Valley Forge Capital Holdings Total Return Fund Inc), Custody Agreement (Questar Funds Inc)
Concerning the Custodian. A. Except as otherwise provided herein, the Custodian shall not be liable for any loss or damage resulting from its action or omission to act or otherwise, except for any such loss or damage arising out of its own gross negligence or willful misconduct. The Fund shall defend, indemnify and hold harmless the Custodian and its directors, officers, employees and agents with respect to any loss, claim, liability or cost (aincluding reasonable attorneys' fees) Each Interested Party arising or alleged to arise from or relating to the Fund's duties hereunder or any other action or inaction of the Fund or its Directors, officers, employees or agents, except such as may arise from the negligent action, omission, willful misconduct or breach of this Agreement by the Custodian. The Custodian may, with respect to questions of law, apply for and obtain the advice and opinion of counsel, at the expense of the Fund, and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with the advice or opinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
B. Without limiting the generality of the foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no obligation to inquire into, and shall not be liable for:
1.) The validity of the issue of any Securities purchased by or for the account of the Fund, the legality of the purchase thereof, or the propriety of the amount paid therefor;
2.) The legality of the sale of any Securities by or for the account of the Fund, or the propriety of the amount for which the same are sold;
3.) The legality of the issue or sale of any shares of the Fund, or the sufficiency of the amount to be received therefor;
4.) The legality of the redemption of any shares of the Fund, or the propriety of the amount to be paid therefor;
5.) The legality of the declaration or payment of any dividend by the Fund in respect of shares of the Fund;
6.) The legality of any borrowing by the Fund on behalf of the Fund, using Securities as collateral;
C. The Custodian shall not be under any duty or obligation to take action to effect collection of any amount due to the Fund from any Dividend and Transfer Agent of the Fund nor to take any action to effect payment or distribution by any Dividend and Transfer Agent of the Fund of any amount paid by the Custodian to any Dividend and Transfer Agent of the Fund in accordance with this Agreement.
D. Notwithstanding Section D of Article V, the 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 a Certificate and (ii) it shall be assured to its satisfaction (including prepayment thereof) of reimbursement of its costs and expenses in connection with any such action.
E. The Fund acknowledges and hereby authorizes the Custodian to hold Securities through its various agents described in Appendix B annexed hereto. The Fund hereby represents that such authorization has been duly approved by the Board Of Directors of the Fund as required by the Act. The Custodian acknowledges that although certain Fund Assets are held by its agents, the Custodian remains primarily liable for the safekeeping of the Fund Assets. In addition, the Fund acknowledges that the Custodian may appoint one or more financial institutions, as agent or agents or as sub-custodian or sub-custodians, including, but not limited to, banking institutions located in foreign countries, for the purpose of holding Securities and moneys at any time owned by the Fund. The Custodian shall not be relieved of any obligation or liability under this Agreement in connection with the appointment or activities of such agents or sub-custodians. Any such agent or sub-custodian shall be qualified to serve as such for assets of investment companies registered under the Act. Upon request, the Custodian shall promptly forward to the Fund any documents it receives from any agent or sub-custodian appointed hereunder which may assist trustees of registered investment companies fulfill their responsibilities under Rule 17f-5 of the Act.
F. The Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it for the account of the Fund are such as properly may be held by the Fund under the provisions of the Articles of Incorporation and the Fund's By-Laws.
G. The Custodian shall treat all records and other information relating to the Fund and the Fund Assets as confidential and shall not disclose any such records or information to any other person unless (i) the Fund shall have consented thereto in writing or (ii) such disclosure is required by law.
H. The Custodian shall be entitled to receive and the Adviser agrees to pay to the Custodian such compensation as shall be determined pursuant to Appendix D attached hereto, or as shall be determined pursuant to amendments to such Appendix D. In the event that the Adviser fails to pay such compensation to the Custodian within 30 days of receipt of an invoice therefore, the Custodian shall be entitled to charge against any money held by it for the account of the Fund, the amount of any of its fees, any loss, damage, liability or expense, including counsel fees. The expenses which the Custodian may charge against the account of the Fund include, but are not limited to, the expenses of agents or sub-custodians incurred in settling transactions involving the purchase and sale of Securities of the Fund.
I. The Custodian shall be entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the Custodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, whether by hand delivery, facsimile or otherwise, on the same business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to receive such confirming instructions shall in no way affect the validity of the transactions or enforceability of the transactions hereby authorized by the Fund. The Fund agrees that the Custodian shall incur no liability to the Fund for acting upon Oral Instructions given to the Custodian hereunder concerning such transactions.
J. The Custodian will (i) shall not be responsible for any set up and maintain proper books of account and complete records of all transactions in the accounts maintained by the Custodian hereunder in such manner as will meet the obligations of the agreements referred Fund under the Act, with particular attention to Section 31 thereof and Rules 31a-1 and 31a-2 thereunder and those records are the property of the Fund, and (ii) preserve for the periods prescribed by applicable Federal statute or described herein (including without limitation any Issuer's Declaration or Indenture relating regulation all records required to be so preserved. All such Issuer's Securities), or for determining or compelling compliance therewithbooks and records shall be the property of the Fund, and shall not otherwise be bound thereby, (ii) open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Custodian shall be obligated only for send to the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of Fund any kind shall be read into this Agreement against or report received on the part systems of internal accounting control of the Custodian, (iii) shall not be obligated or its agents or sub-custodians, as the Fund may reasonably request from time to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by time.
L. The Custodian performs only the proper person, services of a custodian and shall have no responsibility for determining the accuracy thereofmanagement, investment or reinvestment of the Securities from time to time owned by the Fund. The Custodian is not a selling agent for shares of the Fund and (v) may consult counsel satisfactory performance of its duties as custodian shall not be deemed to it, including in-house counsel, and be a recommendation to the opinion Fund's depositors or advice others of such counsel in any instance shall be full and complete authorization and protection in respect shares of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counselFund as an investment.
(b) M. The Custodian shall not be liable take all reasonable action that the Fund may from time to anyone for any action taken or omitted time request to be taken by it hereunder except assist the Fund in obtaining favorable opinions from the case of Fund's independent accountants with respect to the Custodian's negligence or willful misconduct activities hereunder, in breach connection with the preparation of the terms of this Agreement. In no event shall Fund's Form N-1A, Form N-SAR, or other annual reports to the Securities and Exchange Commission.
N. The Fund hereby pledges to and grants the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited a security interest in any Fund Assets to lost profits) whatsoever, even if secure the Custodian has been informed payment of any liabilities of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has Fund to the Custodian, except whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian. This pledge is in addition to any other pledge of collateral by the Fund to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any Securities.
Appears in 2 contracts
Samples: Custodian Agreement (Gemini Funds Inc), Custody Agreement (Electric City Funds Inc)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that The acceptance by the Custodian of its appointment hereunder is expressly subject to the following terms, which shall govern and apply to each of the terms and provisions of this Section 13 (whether or not so stated therein or herein):
(i) The Custodian shall not be responsible have no duties, obligations or responsibilities under this Section 13 or with respect to the Required Loan Documents except for any of the agreements referred to such duties, obligations or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties responsibilities as are expressly and specifically set forth in this Agreement Section 13 as duties obligations or responsibilities on its part to be performed, each and the duties obligations and responsibilities of which are ministerial (and the Custodian shall not be construed to be fiduciary) in naturedetermined solely by the express provisions of this Section 13. No implied duties, and no implied duties obligations or obligations of any kind responsibilities shall be read into this Agreement against against, or on the part of, the Custodian. Any permissive right of the CustodianCustodian to take any action hereunder shall not be construed as a duty.
(ii) The Custodian makes no representations as to and shall not be responsible for or required to verify (x) the validity, legality, enforceability, due authorization, effectiveness, recordability, insurability, sufficiency, value, form, substance, or genuineness of any of the documents contained in any Required Loan Document or (y) the collectability, validity, transferability, insurability, value, effectiveness, perfection, priority or suitability of any Required Loan Document or any document contained therein.
(iii) The Custodian shall have no responsibilities or duties with respect to any Required Loan Document while such Required Loan Document is not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, possession.
(iv) The Custodian may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request request, waiver, consent, opinion, report, receipt or other paper or document furnished to it hereunder in accordance with this Section 13, not only as to its due execution and believed by validity, but also as to the truth and accuracy of any information therein contained, which it in good faith believes to be genuine and to have been signed or presented by the proper personperson (which in the case of any instruction from or on behalf of the Borrower shall be an Authorized Person). The Custodian shall be entitled to reasonably presume the genuineness and due authority of any signature appearing thereon. The Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, and instruction, statement, certificate, request, waiver, consent, opinion, report, electronic communication, receipt or other paper or document, provided, however, that if the form thereof is specifically prescribed by the terms of this Section 13, the Custodian shall have no responsibility for determining examine the accuracy thereof, and same to determine whether it substantially conforms on its face to the requirements set forth herein.
(v) Neither the Custodian nor any of its directors, officers or employees shall be liable to anyone for any error of judgment, or for any act done or step taken or omitted to be taken by it (or any of its directors, officers of employees), or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, unless such action constitutes gross negligence or willful misconduct of the Custodian.
(vi) The Custodian shall not be liable for any action taken by it in good faith and reasonably believed by it to be within powers conferred upon it, or taken by it pursuant to any direction or instruction received by it in accordance with this Section 13, or omitted to be taken by it by reason of the lack of direction or instruction required hereby for such action.
(vii) The Custodian may consult with, and obtain advice from, legal counsel satisfactory selected in good faith, with respect to itany question as to any of the provisions hereof or its duties hereunder, including in-house counselor any matter relating hereto, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered suffered, or omitted by it hereunder the Custodian in good faith and in accordance with the advice or opinion or advice of such counsel. The reasonable costs and expenses of such advice or opinion shall be reimbursed by the Borrower pursuant to Section 12 hereof.
(bviii) No provision of this Agreement shall require the Custodian to expend or risk its own funds, take any action hereunder (or omit to take any action) or otherwise incur any financial liability in the performance of its duties under this Section 13 if it shall have grounds for believing that repayment of such funds or indemnity satisfactory is not assured to it.
(ix) The Custodian may act or exercise its duties or powers hereunder through agents or attorneys, and the Custodian shall not be liable or responsible for the actions or omissions of any such agent or attorney appointed and maintained with due care.
(x) If the Custodian shall request instructions from the Borrower with respect to anyone any act, action or failure to act in connection with this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Borrower without incurring any liability therefor to the Borrower, or any other Person.
(xi) In no event shall the Custodian or its directors, affiliates, officers, agents and employees be held liable for any lost profits or exemplary, punitive, special, indirect or consequential damages of any kind resulting from any action taken or omitted to be taken by it or them hereunder except or in the case connection herewith even if advised of the Custodian's negligence possibility of such damages.
(xii) The Custodian shall not be deemed to have notice of any fact, claim or willful misconduct in breach demand with respect hereto unless a Responsible Officer of the Custodian has actual knowledge thereof or written notice thereof. Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of and shall not be bound by any of the terms and conditions of this Agreement. In no event shall any other document or agreement unless the Custodian be liable for indirect, punitive, special is a signatory party to that document or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of actionagreement.
(cxiii) Nothing in this Section 13 shall be deemed to impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (x) any jurisdiction where any Required Loan Document is or may be held by the Custodian from time to time hereunder, and (y) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties hereunder.
(xiv) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by only the Custodian than any such book-entry depository, securities intermediary or other subcustodian has duties and responsibilities with respect to the Custodianmatters set forth herein as is expressly set forth in writing herein and shall not be deemed to be an agent, except to the extent that such action bailee or omission of fiduciary for any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securitiesparty hereto. The Custodian shall be fully protected in acting or refraining from acting in good faith without investigation on any notice, instruction or request purportedly furnished to it by the Borrower in accordance with the terms hereof, in which case the parties hereto agree that the Custodian has no duty to make any further inquiry whatsoever. It is hereby acknowledged and agreed that the Custodian has no knowledge of (and is not required to know) the terms and provisions of any loan agreements or any other related documentation to which the Lender may be accountable for a party or whether any actions by the, the use Borrower or application by any other person or entity are permitted or a breach thereunder or consistent or inconsistent therewith.
(xv) The provisions of this Section 13.3 shall survive the termination of this Agreement and the resignation or removal of the Issuers or Custodian.
(xvi) The Custodian hereby represents and warrants to the Purchaser Borrower that it is qualified to act as a custodian pursuant to Sections 17(f) and 26(a)(1) of any Securities or the proceeds of any Securities1940 Act.
Appears in 2 contracts
Samples: Loan and Security Agreement (Palmer Square Capital BDC Inc.), Loan and Security Agreement (Palmer Square Capital BDC Inc.)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that 1. The Custodian shall use reasonable care in the performance of its duties hereunder, and, except as hereinafter provided, neither the Custodian (i) nor its nominee shall not be responsible liable for any loss or damage, including counsel fees, resulting from its action or omission to act or otherwise, either hereunder or under any Margin Account Agreement, except for any such loss or damage arising out of its own negligence, bad faith, or willful misconduct or that of its officers, employees, or agents. The Custodian may, with respect to questions of law arising hereunder or under any Margin Account Agreement, apply for and obtain the advice and opinion of counsel to the Fund, at the expense of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities)Fund, or for determining or compelling compliance therewithof its own counsel, at its own expense, and shall not otherwise be bound thereby, (ii) fully protected with respect to anything done or omitted by it in good faith in conformity with such advice or opinion. The Custodian shall be obligated only liable to the Fund for any loss or damage resulting from the performance use of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties the Book-Entry System or obligations any Depository arising by reason of any kind shall be read into this Agreement against negligence or willful misconduct on the part of the CustodianCustodian or any of its employees or agents.
2. Notwithstanding the foregoing, (iii) the Custodian shall be under no obligation to inquire into, and shall not be obligated to take liable for:
(a) The validity (but not the authenticity) of the issue of any legal Securities purchased, sold, or other action hereunder which might in its judgment involve written by or cause it to incur any expense for the Fund, the legality of the purchase, sale or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy writing thereof, and (v) may consult counsel satisfactory to itor the propriety of the amount paid or received therefor, including in-house counselas specified in a Certificate, and the opinion Oral Instructions, or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.Written Instructions;
(b) The Custodian shall not be liable to anyone for legality of the sale or redemption of any action taken Shares, or omitted the propriety of the amount to be taken by it hereunder except received or paid therefor, as specified in the case of the Custodian's negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.a Certificate;
(c) The Custodian shall have no more legality of the declaration or less responsibility or liability on account payment of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed dividend by the Custodian than any such book-entry depositoryFund, securities intermediary as specified in a resolution, Certificate, Oral Instructions, or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.Written Instructions;
(d) The recitals contained herein legality of any borrowing by the Fund using Securities as collateral;
(e) The legality of any loan of portfolio Securities, nor shall the Custodian be taken under any duty or obligation to see to it that the cash collateral delivered to it by a broker, dealer, or financial institution or held by it at any time as the statements a result of each such loan of portfolio Securities of the Issuers and Fund is adequate collateral for the PurchaserFund against any loss it might sustain as a result of such loan, and except that this sub-paragraph shall not excuse any liability the Custodian assumes no responsibility may have for the correctness of the samefailing to act in accordance with Article X hereof or any Certificate, Oral Instructions, or Written Instructions given in accordance with this Agreement. The Custodian makes no representations as to the validity or sufficiency specifically, but not by way of this Agreement or the Securities. The Custodian limitation, shall not be accountable under any duty or obligation periodically to check or notify the Fund that the amount of such cash collateral held by it for the use Fund is sufficient collateral for the Fund, but such duty or application by any obligation shall be the sole responsibility of the Issuers Fund. In addition, the Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Purchaser of any Securities or the proceeds of any Securities.Fund are lent pursuant to
Appears in 2 contracts
Samples: Custody Agreement (Dean Witter Fund of Funds), Custody Agreement (Morgan Stanley Dean Witter Mid Cap Dividend Growth Sec)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that 1. Except as hereinafter provided, or as provided in Article XVI, neither the Custodian (i) nor its nominee shall not be responsible liable for any of the agreements referred to loss or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to itdamage, including in-house counselcounsel fees, and the opinion resulting from its action or advice of such counsel in omission to act or otherwise, either hereunder or under any instance shall be full and complete authorization and protection in respect of any action takenMargin Account Agreement, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Custodian shall not be liable to anyone except for any action taken such loss or omitted to be taken by it hereunder except in the case damage arising out of the Custodian's its own negligence or willful misconduct in breach of the terms of this Agreementmisconduct. In no event shall the Custodian be liable to the Fund or any third party for indirectspecial, punitive, special indirect or consequential damage damages or lost profits or loss (including but not limited to lost profits) whatsoeverof business, arising under or in connection with this Agreement, even if the Custodian has been previously informed of the likelihood possibility of such loss or damage damages and regardless of the form of action. The Custodian may, with respect to questions of law arising hereunder or under any Margin Account Agreement, apply for and obtain the advice and opinion of counsel to the Fund or of its own counsel, at the expense of the Fund, and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice or opinion. The Custodian shall be liable to the Fund for any loss or damage resulting from the use of the Book-Entry System or any Depository arising by reason of any negligence or willful misconduct on the part of the Custodian or any of its employees or agents.
2. Without limiting the generality of the foregoing, the Custodian shall be under no obligation to inquire into, and shall not be liable for:
(a) 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;
(b) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor;
(c) The Custodian shall have no more legality of the declaration or less responsibility or liability on account payment of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed dividend by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.Fund;
(d) The recitals contained herein legality of any borrowing by the Fund using Securities as collateral;
(e) The legality of any loan of portfolio Securities, nor shall the Custodian be taken under any duty or obligation to see to it that any cash collateral delivered to it by a broker, dealer, or financial institution or held by it at any time as the statements a result of each such loan of portfolio Securities of the Issuers and the Purchaser, and the Custodian assumes no responsibility Fund is adequate collateral for the correctness Fund against any loss it might sustain as a result of the samesuch loan. The Custodian makes specifically, but not by way of limitation, shall not be under any duty or obligation periodically to check or notify the Fund that the amount of such cash collateral held by it for the Fund is sufficient collateral for the Fund, but such duty or obligation shall be the sole responsibility of the Fund. In addition, the Custodian shall be under no representations as duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the validity or sufficiency Fund are lent pursuant to Article X of this Agreement makes payment to it of any dividends or interest which are payable to or for the Securitiesaccount of the Fund during the period of such loan or at the termination of such loan, provided, however, that the Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; or
(f) The sufficiency or value of any amounts of money and/or Securities held in any Margin Account, Senior Security Account or Collateral Account in connection with transactions by the Fund. In addition, the Custodian shall be under no duty or obligation to see that 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, to see that any payment received by the 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 the Custodian's receipt or non-receipt of any such payment.
3. The Custodian shall not be accountable liable for, or considered to be the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the use payment of money, received by it on behalf of the Fund until the Custodian actually receives and collects such money directly or application by the final crediting of the account representing the Fund's interest at the Book-Entry System or the Depository.
4. The Custodian shall have no responsibility and shall not be liable for ascertaining or acting upon any calls, conversions, exchange offers, tenders, interest rate changes or similar matters relating to Securities held in the Depository, unless the Custodian shall have actually received timely notice from the Depository. In no event shall the Custodian have any responsibility or liability for the failure of the Depository to collect, or for the late collection or late crediting by the Depository of any amount payable upon Securities deposited in the Depository which may mature or be redeemed, retired, called or otherwise become payable. However, upon receipt of a Certificate from the Fund of an overdue amount on Securities held in the Depository the Custodian shall make a claim against the Depository on behalf of the Fund, except that the 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 the 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.
5. The Custodian shall not be under any duty or obligation to take action to effect collection of any amount due to the Fund from the Transfer Agent of the Fund nor to take any action to effect payment or distribution by the Transfer Agent of the Fund of any amount paid by the Custodian to the Transfer Agent of the Fund in accordance with this Agreement.
6. The 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 a Certificate and (ii) it shall be assured to its satisfaction of reimbursement of its costs and expenses in connection with any such action.
7. The Custodian may in addition to the employment of Foreign Sub-Custodians pursuant to Article XVI appoint one or more banking institutions as Depository or Depositories, as Sub- Custodian or Sub-Custodians, or as Co-Custodian or 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 a Certificate or contained in an agreement executed by the Custodian, the Fund and the appointed institution.
8. The Custodian shall not be under any duty or obligation (a) to ascertain whether any Securities at any time delivered to, or held by it or by any Foreign Sub-Custodian, for the account of the Issuers 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, or (b) to ascertain whether any transactions by the Fund, whether or not involving the Custodian, are such transactions as may properly be engaged in by the Fund.
9. The Custodian shall be entitled to receive and the Fund agrees to pay to the Custodian all out-of-pocket expenses and such compensation as may be agreed upon from time to time between the Custodian and the Fund. The Custodian may charge such compensation and any expenses with respect to a Series incurred by the Custodian in the performance of its duties pursuant to such agreement against any money specifically allocated to such Series. Unless and until the Fund instructs the Custodian by a Certificate to apportion any loss, damage, liability or expense among the Series in a specified manner, the Custodian shall also be entitled to charge against any money held by it for the account of a Series such Series' pro rata share (based on such Series net asset value at the time of the charge to the aggregate net asset value of all Series at that time) of the amount of any loss, damage, liability or expense, including counsel fees, for which it shall be entitled to reimbursement under the provisions of this Agreement. The expenses for which the Custodian shall be entitled to reimbursement hereunder shall include, but are not limited to, the expenses of sub-custodians and foreign branches of the Custodian incurred in settling outside of New York City transactions involving the purchase and sale of Securities of the Fund.
10. The Custodian shall be entitled to rely upon any Certificate, notice or other instrument in writing received by the Custodian and reasonably believed by the Custodian to be a Certificate. The Custodian shall be entitled to rely upon any Oral Instructions actually received by the Custodian hereinabove provided for. The Fund agrees to forward to the Custodian a Certificate or facsimile thereof confirming such Oral Instructions in such manner so that such Certificate or facsimile thereof is received by the 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 the Custodian. The Fund agrees that the fact that such confirming instructions are not received, or that contrary instructions are received, by the Custodian shall in no way affect the validity of the transactions or enforceability of the transactions hereby authorized by the Fund. The Fund agrees that the Custodian shall incur no liability to the Fund in acting upon Oral Instructions given to the Custodian hereunder concerning such transactions provided such instructions reasonably appear to have been received from an Officer.
11. The Custodian shall be entitled to rely upon any instrument, instruction or notice received by the Custodian and reasonably believed by the Custodian to be given in accordance with the terms and conditions of any Margin Account Agreement. Without limiting the generality of the foregoing, the Custodian shall be under no duty to inquire into, and shall not be liable for, the accuracy of any statements or representations contained in any such instrument or other notice including, without limitation, any specification of any amount to be paid to a broker, dealer, futures commission merchant or Clearing Member.
12. The books and records pertaining to the Fund which are in the possession of the Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the Investment Company Act of 1940, as amended, and other applicable securities laws and rules and regulations. The Fund, or the Purchaser Fund's authorized representatives, shall have access to such books and records during the Custodian's normal business hours. Upon the reasonable request of the Fund, copies of any Securities such books and records shall be provided by the Custodian to the Fund or the proceeds Fund's authorized representative, and the Fund shall reimburse the Custodian its expenses of providing such copies. Upon reasonable request of the Fund, the Custodian shall provide in hard copy or on micro-film, whichever the Custodian elects, any records included in any such delivery which are maintained by the Custodian on a computer disc, or are similarly maintained, and the Fund shall reimburse the Custodian for its expenses of providing such hard copy or micro-film.
13. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of the Book-Entry System, the Depository or O.C.C., and with such reports on its own systems of internal accounting control as the Fund may reasonably request from time to time.
14. The Fund agrees to indemnify the Custodian against and save the Custodian harmless from all liability, claims, losses and demands whatsoever, including attorney's fees, howsoever arising or incurred because of or in connection with this Agreement, including the Custodian's payment or non-payment of checks pursuant to paragraph 6 of Article XIII as part of any check redemption privilege program of the Fund, except for any such liability, claim, loss and demand arising out of the Custodian's own negligence or willful misconduct.
15. Subject to the foregoing provisions of this Agreement, including, without limitation, those contained in Article XVI and XVII the Custodian may deliver and receive Securities, and receipts with respect to such Securities, and arrange for payments to be made and received by the Custodian in accordance with the customs prevailing from time to time among brokers or dealers in such Securities. When the 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 the Custodian's delivery of Securities pursuant to instructions of the Fund, which responsibility and liability shall continue until final payment in full has been received by the Custodian.
16. The Custodian shall have no duties or responsibili- ties 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 the Custodian.
Appears in 2 contracts
Samples: Custody Agreement (Alliance High Yield Fund Inc), Custody Agreement (Alliance High Yield Fund Inc)
Concerning the Custodian. Section 1. The Custodian shall not be liable for the exercise of any discretion or power or for mistakes or errors of judgment nor otherwise in connection with the Custodianship except for its own willful misconduct or gross negligence. The Custodian shall be indemnified by the Trustees against all costs and expenses (aincluding amounts of judgments where the adjudication does not involve a dereliction in the performance of its duties) Each Interested Party acknowledges and agrees that reasonably incurred by or imposed upon the Custodian (i) in connection with or resulting from any action, suit or proceeding to which it may be made a party by reason of its being or having been the Custodian, except in relation to matters in which a recovery shall be had against it by reason of its having been finally adjudged in such action, suit or proceeding to have been derelict in the performance of its duties as such Custodian. The foregoing right of indemnity shall include reimbursement for the amounts and expenses, including attorneys' fees, paid in settling any such action, suit or proceeding when settling appears to be in the interest of the Trust and the Trustees shall determine there has been no dereliction, and shall not be exclusive of other rights to which the Custodian may be entitled as a matter of law. Indemnification for amounts of judgment and amounts paid by the Custodian to the Trust itself;
Section 2. Any statement or certification by the Trustees shall be sufficient if made by the Trustees or by a majority of the Trustees or by their duly appointed agent or agents and may be accepted by the Custodian as conclusive evidence of all matters therein contained and the Custodian shall be protected in any action which it may take or refrain from taking by reason of the supposed existence of such fact or matter;
Section 3. The Custodian shall not be responsible for any breach by the Trustees of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth covenant contained in this Agreement on its part to be performed, each and Declaration of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties Trust or obligations any Supplemental Declaration of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.Trust pursuant thereto;
(b) The Custodian shall not be liable to anyone for any action taken or omitted to be taken by it hereunder except in the case of the Custodian's negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the SecuritiesSection 4. The Custodian shall not be accountable personally liable for any taxes, assessments or other governmental charges imposed upon or in respect of the use Trust assets or application the income therefrom, or upon it as Custodian hereunder, under any present or future law of the United States of America or of any state, county, municipality or other taxing authority; and the Trustees shall reimburse the Custodian for, and indemnify it against any and all liability imposed upon it by reason of any of the Issuers foregoing matters and the trust estate shall be responsible and liable there-for;
Section 5. The Custodian covenants and agrees that no person or persons nominated by it to hold any Shares of stock' constituting the Purchaser Trust assets shall (1) pledge, sell or otherwise dispose of such Shares of stock, (2) exercise any right to vote or execute any proxy to vote or consent with respect thereto, except as instructed by the Trustees, or (3) receive, hold or dispose of any Securities income or proceeds from or out of, or distribution upon or with respect to, any such Shares of stock for his, their or its account or otherwise than for the account of the Custodian;
Section 6. The Custodian or any successor Custodian may resign and be discharged of the custodianship hereunder upon giving thirty (30) days written notice thereof to the Trustees; provided that no resignation of the Custodian or any successor Custodian shall take effect until (1) the Trust has been completely liquidated and the proceeds of the liquidation dis- tributed to the Shareholders, or (2) a successor Custodian, having the qualifications prescribed in the Agreement and Declaration of Trust, has been designated and has accepted such custodianship;
Section 7. The Custodian shall be entitled to receive from the Trustees, and the Trustees agree to pay to the Custodian, all expenses incurred and paid by the Custodian in performance of its duties hereunder and compensation for its services as Custodian in such reasonable amounts as may be agreed upon between the Custodian and the Trustees; provided that during the life of the Trust hereby created the Custodian, if not otherwise remunerated, may charge against and collect from the income of the Trust, and from the corpus thereof if no income is available, such fees for its services and such reimbursement for its expenses as are provided for in the Agreement and Declaration of Trust, but no such charge or collection shall be made except for services theretofore performed or expenses theretofore incurred.
Section 8. The Custodian or any Securitiessuccessor may be removed at any time (a) by an instrument in writing signed by the Trustees, or (b) by a majority vote of the Shareholders present in person or represented by proxy at any annual or special meeting of the Shareholders at which a quorum for the transaction of business is present.
Section 9. In case the Custodian or any successor custodian shall resign or be removed or a vacancy shall otherwise occur in the position of Custodian hereunder, a successor Custodian shall be appointed by the Trustees. Every Successor Custodian shall execute and deliver to its predecessor last in office, and also to the Trustees, an instrument accepting such appointment hereunder, the acceptance of the appointment by any successor Custodian and the receipt by it of the Trust assets shall constitute a full and complete discharge of the predecessor Custodian from any and all obligations hereunder.
Section 10. The Custodian and every successor to the Custodian shall always be a bank or trust company having capital,' surplus and undivided profits aggregating at least One Million Dollars ($1,000,000.00), or such other sum as may be required by any applicable law, rule or regulation.
Appears in 1 contract
Samples: Agreement and Declaration of Trust (Babson D L Bond Trust)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that Neither the Custodian (i) shall not be responsible for nor any of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities)its directors, affiliates, officers, agents, or for determining or compelling compliance therewithemployees, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Custodian shall not be liable to anyone for any action taken or omitted to be taken by it or them hereunder or in connection herewith in good faith and believed by it or them to be within the purview of this Custodial Agreement, except in the case of the Custodian's negligence for its or their own gross negligence, bad faith or willful misconduct in breach of the terms of this Agreementmisconduct. In no event shall the Custodian or its directors, affiliates, officers, agents, or employees be held liable for any special, indirect or consequential damages resulting from any action taken or omitted to be taken by it or them hereunder or in connection herewith, even if advised of the possibility of such damages. The Servicer agrees to indemnify, from the Servicer’s own funds, and hold the Custodian and its directors, affiliates, officers, agents, and employees harmless against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, or disbursements of any kind or nature whatsoever, including reasonable attorneys’ fees, that may be imposed on, incurred by or asserted against it or them in any way relating to or arising out of liabilities, obligations, judgments, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements other than those which were imposed on, incurred by or asserted against the Custodian, because of the breach by the Custodian of its obligations hereunder, which breach was caused by negligence, bad faith, or willful misconduct on the part of the Custodian or any of its directors, affiliates, officers, agents, or employees. The indemnification set forth in this section shall survive any termination of this Custodial Agreement and the termination and removal of the Custodian. Notwithstanding anything to the contrary herein or in the Pooling and Servicing Agreement, it is hereby understood that the Trustee shall not be liable for indirectthe acts, punitiveomissions, special duties, obligations or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed liabilities of the likelihood of such loss or damage and regardless of the form of actionCustodian.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any Securities.
Appears in 1 contract
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that the The Custodian (i) shall not be responsible for any of the agreements referred to have no duties or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and responsibilities except those specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and herein. The Custodian shall have no responsibility for determining nor duty with respect to any Mortgage Files while not in its possession. If the accuracy thereofCustodian requests instructions from the Buyer with respect to any act, and (v) may consult counsel satisfactory action or failure to itact in connection with this Agreement, including in-house counsel, and the opinion or advice of such counsel in any instance Custodian shall be full entitled to refrain from taking such action and complete authorization continue to refrain from acting unless and protection in until the Custodian shall have received Written Instructions from the Buyer with respect of to a Mortgage File without incurring any action takenliability therefore to the Buyer, suffered any Seller or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counselany other Person.
(b) The Custodian shall not be liable to anyone for any action taken or omitted omission to be taken by it act hereunder except in the case of the Custodian's for its own negligence or lack of good faith or willful misconduct in breach of the terms of this Agreementmisconduct. In no event shall the Custodian be liable for indirect, punitive, special have any responsibility to ascertain or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of actiontake action except as expressly provided herein.
(c) The Without limiting the generality of the foregoing, the Custodian may conclusively rely upon and shall have no more or less responsibility or liability on account of be fully protected in acting in good faith upon any action or omission of any book-entry depositoryWritten Instructions, securities intermediary notice or other subcustodian employed communication from the Buyer or Sellers received by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has it and which it reasonably believes to the Custodian, except be genuine and duly authorized with respect to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of all matters pertaining to this AgreementAgreement and its duties hereunder.
(d) The recitals contained herein Custodian shall not be liable to the Sellers, the Buyer, or any other Person with respect to any action taken or not taken by it in good faith in the performance of its obligations under this Agreement. The obligations of the Custodian shall be taken as determined solely by the statements express provisions of each this Agreement. No representation, warranty, covenant, agreement, obligation or duty of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as shall be implied with respect to the validity or sufficiency of this Agreement or the Securities. Custodian's services hereunder.
(e) The Custodian shall be under no duty or obligation to inspect, review or examine the Mortgage Files to determine that the contents thereof are genuine, enforceable or appropriate for the represented purpose or that they have been actually recorded, are in the proper form for recordation or that they are not other than what they purport to be on their face.
(f) No provision of this Agreement shall require the Custodian to expend or risk its own funds or otherwise incur financial liability (other than expenses or liabilities otherwise required to be incurred by the terms of this Agreement) in the performance of its duties under this Agreement if it shall have a good faith belief that repayment of such funds or indemnity satisfactory to it is not reasonably assured to it.
(g) The Custodian shall use the same degree of care and skill as is reasonably expected of financial institutions acting in comparable capacities which are held to a standard of care of ordinary negligence, and this Section 20 shall not be accountable for interpreted to impose upon the use or application by any Custodian a higher standard of care than that set forth in this sentence.
(h) In order to comply with its duties under the Issuers or U.S.
A. Patriot Act, the Purchaser of any Securities or Custodian shall obtain and verify certain information and documentation from the proceeds of any Securitiesother parties hereto, including, but not limited to, such parties' names, addresses, and other identifying information.
Appears in 1 contract
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that the The Custodian (i) shall not be responsible for any of the agreements referred to have no duties or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and responsibilities except those specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and herein. The Custodian shall have no responsibility for determining nor duty with respect to any Mortgage Files while not in its possession. If the accuracy thereofCustodian requests instructions from the Buyer with respect to any act, and (v) may consult counsel satisfactory action or failure to itact in connection with this Agreement, including in-house counsel, and the opinion or advice of such counsel in any instance Custodian shall be full entitled to refrain from taking such action and complete authorization continue to refrain from acting unless and protection in until the Custodian shall have received Written Instructions from the Buyer with respect of to a Mortgage File without incurring any action takenliability therefore to the Buyer, suffered the Seller or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counselany other Person.
(b) The Custodian shall not be liable to anyone for any action taken or omitted omission to be taken by it act hereunder except in the case of the Custodian's for its own negligence or lack of good faith or willful misconduct in breach of the terms of this Agreementmisconduct. In no event shall the Custodian be liable for indirect, punitive, special have any responsibility to ascertain or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of actiontake action except as expressly provided herein.
(c) The Without limiting the generality of the foregoing, the Custodian may conclusively rely upon and shall have no more or less responsibility or liability on account of be fully protected in acting in good faith upon any action or omission of any book-entry depositoryWritten Instructions, securities intermediary notice or other subcustodian employed communication from the Buyer or Seller received by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has it and which it reasonably believes to the Custodian, except be genuine and duly authorized with respect to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of all matters pertaining to this AgreementAgreement and its duties hereunder.
(d) The recitals contained herein Custodian shall not be liable to the Seller, the Buyer, or any other Person with respect to any action taken or not taken by it in good faith in the performance of its obligations under this Agreement. The obligations of the Custodian shall be taken as determined solely by the statements express provisions of each this Agreement. No representation, warranty, covenant, agreement, obligation or duty of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as shall be implied with respect to the validity or sufficiency of this Agreement or the Securities. Custodian’s services hereunder.
(e) The Custodian shall be under no duty or obligation to inspect, review or examine the Mortgage Files to determine that the contents thereof are genuine, enforceable or appropriate for the represented purpose or that they have been actually recorded, are in the proper form for recordation or that they are not other than what they purport to be on their face.
(f) No provision of this Agreement shall require the Custodian to expend or risk its own funds or otherwise incur financial liability (other than expenses or liabilities otherwise required to be incurred by the terms of this Agreement) in the performance of its duties under this Agreement if it shall have a good faith belief that repayment of such funds or indemnity satisfactory to it is not reasonably assured to it.
(g) The Custodian shall use the same degree of care and skill as is reasonably expected of financial institutions acting in comparable capacities which are held to a standard of care of ordinary negligence, and this Section 20 shall not be accountable for interpreted to impose upon the use or application by any Custodian a higher standard of the Issuers or the Purchaser of any Securities or the proceeds of any Securitiescare than that set forth in this sentence.
Appears in 1 contract
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that In the Custodian (i) shall not be responsible for any absence of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or bad faith on the part of the Custodian, (iii) shall not be obligated the Custodian may conclusively rely, as to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnificationthe truth of the statements and the correctness of the opinions expressed therein, (iv) may rely on and shall be protected in acting or refraining from acting upon any written noticerequest, instruction, instrument, statement, certificate, request opinion or other document furnished to it hereunder and the Custodian, reasonably believed by it the Custodian to be genuine and to have been signed or presented by the proper personparty or parties and conforming to the requirements of this Custodial Agreement; but in the case of any Mortgage Loan Document or other request, instruction, document or certificate which by any provision hereof is specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same in accordance with the requirements of this Custodial Agreement. The Custodian undertakes to perform such duties and only such duties as are specifically set forth in this Custodial Agreement. The Custodian shall not have any duties or responsibilities except those expressly set forth in this Custodial Agreement. The Custodian shall not be liable for any error of judgment made in good faith by an officer or officers of the Custodian, unless it shall be conclusively determined by a court of competent jurisdiction that the Custodian was grossly negligent in ascertaining the pertinent facts. The Custodian shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction of the Borrower or the Lender given under this Custodial Agreement. None of the provisions of this Custodial Agreement shall require the Custodian to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have no responsibility reasonable grounds for determining the accuracy thereof, and (v) believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it. The Custodian may consult with counsel satisfactory to it, including in-house counsel, and the written advice or any written opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel. Any entity into which the opinion Custodian may be merged or advice of such counsel.
(b) The converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Custodian shall not be liable a party, or any entity succeeding to anyone for any action taken or omitted to be taken by it hereunder except in the case business of the Custodian's negligence or willful misconduct in breach Custodian shall be the successor of the terms of this Agreement. In no event shall Custodian hereunder without the Custodian be liable for indirect, punitive, special execution or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on account filing of any action paper with any parties hereto or omission any further act on the part of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for the use or application by any of the Issuers parties hereto except where an instrument or transfer or assignment is required by law to effect such succession, anything herein to the Purchaser of any Securities or the proceeds of any Securitiescontrary notwithstanding.
Appears in 1 contract
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that The Custodian shall not assign, transfer, pledge or grant a security interest in any of its rights, benefits or privileges hereunder, nor shall the Custodian (i) shall not be responsible for delegate or appoint any other person or entity to perform or carry out any of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities)its duties, or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties responsibilities or obligations of any kind shall be read into under this Agreement against or on the part Agreement, other than a wholly owned subsidiary of the Custodian, unless Custodian has obtained the written consent of the Trustee and the Guarantor, with the approval of the Depositor. It is understood and agreed that regardless of whether the Custodian has obtained the written consent of the Trustee, with the approval of the Depositor, as provided in the foregoing sentence, any such delegation or appointment shall in no way reduce, eliminate or otherwise modify or affect the Custodian’s obligations hereunder. Any act or instrument purporting to effect any such assignment, transfer, pledge, grant, delegation or appointment shall be void. No representations, warranties, covenants (iiiother than those expressly made by the Custodian in this Agreement) or obligations of the Custodian shall be implied with respect to this Agreement or the Custodian’s services hereunder. Without limiting the generality of the foregoing, and any provision in this Agreement to the contrary notwithstanding, the Custodian:
A. shall have no duties or obligations other than those specifically set forth herein or as may subsequently be agreed in writing by the parties hereto and shall use the same degree of care and skill as is reasonably expected of financial institutions acting in comparable capacities;
B. will be regarded as making no representations and having no responsibilities (except as expressly set forth herein) as to the validity, sufficiency, value, genuineness, ownership or transferability of any Mortgage Loan, and will not be required to and will not make any representations as to the validity, value or genuineness of any Mortgage Loan;
C. shall not be obligated to take any legal or other action hereunder which that might in its judgment involve or cause it to incur any expense or liability unless it shall have has been furnished with acceptable indemnification, (iv) reasonable indemnity;
D. may rely on and shall be protected in acting or refraining from acting in good faith upon any written notice, instructioncertificate, instrument, statementopinion, certificatenotice, request letter, telegram or other document furnished document, or any security, delivered to it hereunder and in good faith believed by it to be genuine and to have been signed or presented by the proper person, party or parties;
E. may rely on and shall have no responsibility for determining be protected in acting in good faith upon the accuracy thereofwritten instructions, of Trustee and (v) such employees and representatives of the Trustee as such party may hereinafter designate in writing;
F. may consult counsel satisfactory to it, it (including in-house counsel, counsel for the Trustee) and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in furtherance of its duties hereunder, in accordance with the opinion or advice of such counsel.;
(b) The Custodian G. shall not be liable to anyone for any error of judgment, or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything that it may do or refrain from doing in connection therewith, except in the case of the Custodian’s negligence, lack of good faith or willful misconduct; and
H. shall not be held liable for any special, indirect, punitive or consequential damages resulting from any action taken or omitted to be taken by it or them hereunder except or in the case connection herewith even if advised of the Custodian's negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood possibility of such loss or damage and regardless of the form of actiondamages.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any Securities.
Appears in 1 contract
Samples: Pooling Agreement (Harborview Mortgage Loan Trust 2006-Cb1)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that the Except as otherwise expressly provided herein, Custodian (i) shall not be responsible 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. The Custodian agrees to indemnify and hold harmless the agreements referred Fund and Fund's Trustees and officers to or the extent described herein above (including without limitation reasonable counsel fees) incurred or assessed against any Issuer's Declaration of them as a result of any breach or Indenture relating to such Issuer's Securities)violation of this Agreement by the Custodian or its officers, employees and agents or for determining its nominees, resulting from its negligence or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) willful misconduct. The Custodian shall be obligated only liable to the Fund for any loss or damage resulting from the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations use of any kind shall be read into this Agreement against Depository arising by reason of any negligence or willful misconduct on the part of the Custodian or any of its employees or agents. 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, and reasonably believed by the Custodian to be a Certificate, or Oral Instructions actually received by Custodian, provided such instructions reasonably appear to have been received from an Authorized Person; (ii) for acting in accordance with Instructions transmitted electronically without reviewing the same; (iii) for conclusively presuming that all Instructions transmitted electronically are given only person(s) duly authorized; (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; (v) 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; (vi) 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; (vii) for the insolvency of any Subcustodian (other than a Custodian 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 (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, 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 not Custodian be obligated to take 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 legal such law, regulation or other action hereunder which might event imposes a cost or charge upon Custodian in its judgment involve relation to the transferability, convertibility, or cause it to incur availability of any expense cash currency or liability unless it shall have been furnished with acceptable indemnificationComposite Currency Unit, (iv) may rely on and such cost or charge shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by for the proper personaccount of the Fund, and shall have no responsibility for determining Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counselrelevant component currencies.
(b) The 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 not be liable to anyone for any action taken or omitted to be taken by it hereunder except in the case of the Custodian's negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the discharge Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of actionfrom its obligations hereunder.
(c) The Fund agrees to indemnify Custodian shall have no more and hold Custodian harmless from and against any and all Losses sustained or less responsibility incurred by or liability on account asserted against Custodian by reason of or as a result of any action or omission inaction, or arising out of any book-entry depositoryCustodian's performance hereunder, securities intermediary or other subcustodian employed 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 than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission for those Losses arising out of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith willful misconduct, lack of good faith, or willful misconduct reckless disregard of its duties. For any legal proceeding giving rise to the indemnification set forth above in breach this paragraph, the Fund shall be entitled to defend or prosecute any claim in the name of this Agreementthe Custodian at its own expense and through counsel of its own choosing reasonably acceptable to the Custodian if it gives written notice to the Custodian within ten (10) Business days of receiving notice of such claim. Notwithstanding the foregoing, the Custodian may participate in the litigation at its own expense and with counsel of its own choosing.
2. Without limiting the generality of the foregoing, Custodian 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 recitals contained herein 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 taken as the statements of each sole responsibility of the Issuers 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 PurchaserFund; 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 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 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 of counsel and shall be fully protected with respect to anything done or omitted by it in reasonable 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 set forth in Schedule III.
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 assumes no responsibility for and any BNY Affiliate in order to effect the correctness above rights.
8. The Fund agrees to forward, or cause the Administrator to forward, to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the samesame 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 makes shall in no representations as to way affect the validity or sufficiency enforceability of this Agreement 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 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 SecuritiesFund 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 not 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 accountable for the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any Securitiesimplied against Custodian in connection with this Agreement.
Appears in 1 contract
Samples: Custody Agreement (MCM Funds)
Concerning the Custodian. (a) Each Interested Party acknowledges The Custodian shall exercise the same degree of care toward the Escrow Stock as it exercises toward its own similar property and agrees shall not be held to any higher standard of care under this Agreement.
(b) The Company and the Seller acknowledge and agree that the Custodian (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) but shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial Agreement; (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iiiii) shall not be obligated to take any legal or other action hereunder which that might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, ; (iviii) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof; (iv) may rely upon and shall be protected in acting or refraining from acting upon any written instructions from the Company or the Attorneys, or any of them acting alone, with respect to any matter covered by this Agreement; and (v) at the reasonable expense of the Company, may consult counsel satisfactory to it, including in-house counselcounsel to the Company, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel. The obligations in this paragraph shall survive termination of this Agreement.
(bc) The Neither the Custodian nor any of its partners or employees shall not be liable to anyone for any action taken or omitted to be taken by it or any of its partners or employees hereunder except in the case of gross negligence or willful misconduct. The Company and the Seller, jointly and severally, covenant and agree to indemnify the Custodian and hold it harmless without limitation from and against any loss, liability or expense of any nature incurred by the Custodian arising out of or in connection with this Agreement or with the administration of its duties hereunder, including but not limited to legal fees and other costs and expenses of defending or preparing to defend against any claim or liability in the premises, unless such loss, liability or expense shall be caused by the Custodian's negligence or willful misconduct in breach of the terms of this Agreementor gross negligence. In no event shall the Custodian be liable for indirect, punitive, incidental, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) damages. The Custodian obligations in this paragraph shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach survive termination of this Agreement.
(d) The recitals contained herein Company and the Seller, jointly and severally, agree to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to the payment of Escrow Funds under this Agreement, and to indemnify and hold the Custodian harmless from and against any taxes, additions for late payment, interest, penalties and other expenses, that may be assessed against the Custodian on any such payment or other activities under this Agreement. The Company undertakes to instruct the Custodian in writing with respect to the Custodian's responsibility for withholding and other taxes, assessments or other governmental charges, certifications and governmental reporting in connection with its acting as Custodian under this Agreement. The Company and the Seller, jointly and severally, agree to indemnify and hold the Custodian harmless from any liability on account of taxes, assessments or other governmental charges, including without limitation the withholding or deduction or the failure to withhold or deduct same, and any liability for failure to obtain proper certifications or to properly report to governmental authorities, to which the Custodian may be or become subject in connection with or that arises out of this Agreement, including costs and expenses (including reasonable legal fees), interest and penalties. Notwithstanding the foregoing, no distributions will be made unless the Custodian is supplied with an original, signed W-9 or W-8BEN form or its equivalent prior to distribution.
(e) The Company agrees to pay or reimburse the Custodian for any reasonable legal fees incurred in connection with the preparation, interpretation and enforcement of this Agreement and to pay the Custodian's reasonable compensation for its services. The Custodian shall be taken entitled to reimbursement on demand for all expenses incurred in connection with the administration of this Agreement, including without limitation, payment of any reasonable legal fees incurred by the Custodian in connection with resolution of any claim by any party hereunder.
(f) The Custodian may at any time resign as Custodian hereunder by giving thirty (30) days' prior written notice of resignation to the Company and to the Attorneys. Prior to the effective date of the resignation as specified in such notice, the Attorneys, or any of them acting alone, will issue to the Custodian a written instruction authorizing redelivery of the Escrow Fund to a bank or trust company that it selects subject to the reasonable consent of the Company. If, however, the Attorneys, or any of them acting alone, shall fail to name such a successor custodian within twenty (20) days after the notice of resignation from the Custodian, the Company shall be entitled to name such successor custodian. If no successor custodian is named by the Company or the Seller, the Custodian may at the expense of the Company apply to a court of competent jurisdiction for appointment of a successor custodian.
(g) From time to time and after the date hereof, the Company, the Attorneys or the Seller shall deliver or cause to be delivered to the Custodian such further documents and instruments and shall do and cause to be done such further acts as the statements of each of the Issuers and the Purchaser, and Custodian shall reasonably request (it being understood that the Custodian assumes shall have no responsibility for obligation to make any such request) to carry out more effectively the correctness provisions and purposes of the same. this Agreement, to evidence compliance herewith or to assure itself that it is protected in acting hereunder.
(h) The Custodian makes no representations representation as to the validity validity, value, genuineness or sufficiency collectibility of this Agreement any security or the Securitiesother document or instrument held by or delivered to it. The Custodian shall not be accountable for the use called upon to advise any party as to selling or application by retaining, or taking or refraining from taking any of the Issuers action with respect to, any securities or the Purchaser of any Securities or the proceeds of any Securitiesother property deposited hereunder.
Appears in 1 contract
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that the A. The Custodian (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only paid as compensation for the performance of such duties as are expressly and specifically set forth in its services pursuant to this Agreement on its part such compensation as may from time to time be performed, each of which are ministerial (and shall not be construed to be fiduciary) agreed upon in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on writing between the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counseltwo parties.
(b) B. The Custodian shall not be liable to anyone for any action taken in good faith upon any officers' certificates as herein defined or omitted to be taken by it hereunder except in the case certified copy of any resolution of the Custodian's Trustees or of the Executive Committee, and may rely on the genuineness of any such document which it may in good faith believe to have been validly executed.
C. The Custodian shall not be liable for any loss or damage, resulting from its action or omission to act or otherwise, except for any such loss or damage arising out of its own negligence or willful misconduct and except that the Custodian shall be responsible for the acts of any sub-custodian or agent appointed hereunder. The Custodian may apply for and obtain the advice and opinion of counsel to the Trust or of its own counsel with respect to questions of law, and shall be fully protected with respect to anything done or omitted by it in breach good faith, in conformity with such advice or opinion.
D. Without limiting the generality of the terms of this Agreement. In no event shall foregoing, the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for indirect, punitive, special or consequential damage or loss for:
(including but not limited to lost profitsa) whatsoever, even if the Custodian has been informed The validity of the likelihood issue of such loss any securities purchased by or damage and regardless for the Trust, the legality of the form purchase thereof, or the propriety of action.the amount paid therefor;
(b) The legality at the issue or sale of any securities by or for the Trust, or the propriety of the amount for which the same are sold;
(c) The Custodian shall have no more legality of the issue or less responsibility or liability on account sale of any action shares of the Trust, or omission the sufficiency of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has amount to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.be received therefor;
(d) The recitals contained herein shall be taken as the statements of each legality of the Issuers and redemption of any shares of the PurchaserTrust, and or the Custodian assumes no responsibility propriety of the amount to be paid therefor;
(e) The legality of the declaration of any dividend or distribution by the Trust, or the legality of the issue of any shares of the Trust in payment of any dividend or distribution in shares;
(f) The legality of the delivery of any securities held for the correctness Trust for the purpose of collateralizing the obligation of the same. Trust to repay any moneys borrowed by the Trust; or
(g) The Custodian makes no representations as legality of the delivery of any securities held for the Trust for the purpose of loaning said securities to the validity any person, firm or sufficiency of this Agreement or the Securities. corporation.
E. The Custodian shall not be accountable 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 signed in the name of the Trust by one of its executive officers, and (ii) it shall be assured to its satisfaction of reimbursement of its costs and expenses in connection with any such action.
F. The Custodian shall not be under any [ILLEGIBLE] obligation to ascertain whether any securities at any time delivered to or held by it for the use or application by any account of the Issuers Trust, are such as may properly be held by the Trust under the provisions of its Declaration of Trust.
G. The Trust agrees to indemnify and hold harmless the Custodian and its nominee from all taxes, charges, expenses, assessments, claims, liabilities, and losses (including counsel fees) incurred or assessed against it or its nominee in connection with the Purchaser performance of this Agreement, except such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. The Custodian is authorized to charge any account of the Trust for such items. In the event of any Securities advance of funds for any purpose made by the Custodian resulting from orders or instructions of the proceeds Trust, or in the event that the Custodian or its nominee shall incur or be assessed any taxes, charges, expenses, assessments, claims or liabilities in connection with the' performance this Agreement, except such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of any Securitiesthe Trust shall be security therefor.
Appears in 1 contract
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that The Custodian's compensation shall be paid by the Trust. The Custodian (i) shall not be responsible liable for any action taken in good faith upon receipt of instructions as herein defined or a certified copy of any resolution of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewithBoard of Trustees, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected the genuineness of any such document which it may in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and good faith believe to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counselvalidly executed.
(b) The Custodian shall not be liable for any loss or damage, resulting from its action or omission to anyone act or otherwise, except for any such loss or damage arising out of its own negligence or willful misconduct and except that the Custodian shall be responsible for the acts of any sub-custodian, or agent appointed hereunder and approved by the Board of Trustees of the Trust. At any time, the Custodian may seek advice from legal counsel for the Trust whose legal fees shall be paid at the sole expense of the Trust, with respect to any matter arising in connection with this Agreement, and it shall not be liable for any action taken or omitted to be not taken or suffered by it hereunder except in good faith in accordance with the case opinion of counsel for the Trust. The Trust and not the Custodian shall be responsible for any fee or charges by counsel for the Trust in connection with any such opinion rendered to the Custodian's negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Without limiting the generality of the foregoing, the Custodian shall have be under no more duty or less responsibility or liability on account obligation to inquire into, and shall not be liable for:
(i) The validity of the issue of any action Securitie s purchased by or omission for the Trust, the legality of the purchase thereof, or the propriety of the amount paid therefor;
(ii) The legality of the issue or sale of any book-entry depositorySecurities by or for the Trust, securities intermediary or other subcustodian employed the propriety of the amount for which the same are sold;
(iii) The legality of the issue or sale of any shares of the Trust, or the sufficiency of the amount to be received therefor;
(iv) The legality of the redemption of any shares of the Trust, or the propriety of the amount to be paid therefor;
(v) The legality of the declaration of any dividend or distribution by the Custodian than any such book-entry depositoryTrust, securities intermediary or other subcustodian has to the Custodian, except to legality of the extent that such action or omission issue of any book-entry depository, securities intermediary Securitie s of the Trust in payment of any dividend or other subcustodian was caused distribution in shares;
(vi) The legality of the delivery of any Securities held for the Trust for the purpose of collateralizing the obligation of the Trust to repay any moneys borrowed by the Custodian's own negligenceTrust; or
(vii) The legality of the delivery of any Securities held for the Trust for the purpose of lending said securities to any person, bad faith firm or willful misconduct in breach of this Agreementcorporation.
(d) The recitals contained herein 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 by the Custodian on behalf of the Trust, unless and until
(i) the Custodian shall be taken as directed to take such action by written instructions signed in the statements of each name of the Issuers and Trust on behalf of the Purchaser, and Trust by one of its executive officers; and
(ii) the Custodian assumes no responsibility for the correctness shall be assured to its satisfaction of the same. The Custodian makes no representations as to the validity or sufficiency reimbursement of this Agreement or the Securities. its costs and expenses in connection with any such action.
(e) The Custodian shall not be accountable under any duty or obligation to ascertain whether any securities at any time delivered to or held by it for the use account of the Trust, are such as may properly be held by the Trust under the provisions of the Trust's Declaration of Trust or application By-Laws as amended from time to time.
(f) The Trust agrees to indemnify and hold harmless the Custodian and its nominees, sub-custodians, depositories and agent from all taxes, charges, expenses, assessments, liabilities, and losses (including counsel fees) incurred or assessed against it or its nominees, sub-custodians, depositories and agents in connection with the performance of this Agreement, except such as may arise from its or its nominee's, sub-custodian's, depositories' and agent's own negligent action, negligent failure to act, breach of this agreement or willful misconduct. The Custodian is authorized to charge any account of the Trust for such items; provided, however, that, except for overdrafts as to which the Custodian shall have the immediate right of offset, prior to charging any such account for such items, the Custodian shall first have forwarded an invoice for such item to the Trust and 30 days shall have elapsed from the date of such invoice to the Trust without payment of the same having been received by the Custodian. In the event of any advance of funds for any purpose made by the Custodian resulting from orders or instructions of the Trust, or in the event that the Custodian or its nominees, sub-custodians, depositories and agents shall incur or be assessed any taxes, charges, expenses, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct any property at any time held for the accounts of the Trust shall be security therefor. Nothing in this paragraph, however, shall be deemed to apply to transaction and asset holding fees or out of pocket expenses of the Custodian which are payable by Nottingham, and as to such fees and expenses the Custodian shall have no right of offset or security under this paragraph.
(g) The Custodian agrees to indemnify and hold harmless the Trust and Trust's Trustees and officers from all taxes, charges, expenses, assessments, claims liabilities, and losses (including counsel fees) incurred or assumed against any of the Issuers or the Purchaser them as a result of any breach or violation of this Agreement by the Custodian or any act or omission by the Custodian or its Trustees, officers, employees and agents and resulting from their negligence or willful misconduct.
(h) In the event that, pursuant to this Agreement, instructions direct the Custodian to pay for securities on behalf of the Trust, the Trust hereby grants to the Custodian a security interest in such Securities, until the Custodian has been reimbursed by the Trust in immediately available funds. The instructions designating the Securities or to be paid for shall be considered the proceeds requisite description and designation of any Securitiesthe Securities pledged to the Custodian for purposes of the requirements of the Uniform Commercial Code.
(i) The Custodian represents that it is qualified to act as such under section 26(a) of the Investment Company Act of 1940.
Appears in 1 contract
Samples: Custody Agreement (Capital Management Investment Trust)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that In the Custodian (i) shall not be responsible for any absence of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or bad faith on the part of the Custodian, (iii) shall not be obligated the Custodian may conclusively rely, as to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnificationthe truth of the statements and the correctness of the opinions expressed therein, (iv) may rely on and shall be protected in acting or refraining from acting upon any written noticerequest, instruction, instrument, statement, certificate, request opinion or other document furnished to it hereunder and the Custodian, reasonably believed by it the Custodian to be genuine and to have been signed or presented by the proper personparty or parties and conforming to the requirements of this Custodial Agreement; but in the case of any Mortgage Loan Document or other request, instruction, document or certificate which by any provision hereof is specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same in accordance with the requirements of this Custodial Agreement. The Custodian undertakes to perform such duties and only such duties as are specifically set forth in this Custodial Agreement. The Custodian shall not have any duties or responsibilities except those expressly set forth in this Custodial Agreement. The Custodian shall not be liable for any error of judgment made in good faith by an officer or officers of the Custodian, unless it shall be conclusively determined by a court of competent jurisdiction that the Custodian was grossly negligent in ascertaining the pertinent facts. The Custodian shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction of the Seller or Buyers given under this Custodial Agreement. None of the provisions of this Custodial Agreement shall require the Custodian to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have no responsibility reasonable grounds for determining the accuracy thereof, and (v) believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it. The Custodian may consult with nationally recognized counsel satisfactory to it, including in-house counsel, and the written advice or any written opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel. Any entity into which the opinion Custodian may be merged or advice of such counsel.
(b) The converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Custodian shall not be liable a party, or any entity succeeding to anyone for any action taken or omitted to be taken by it hereunder except in the case business of the Custodian's negligence or willful misconduct in breach Custodian shall be the successor of the terms of this Agreement. In no event shall Custodian hereunder without the Custodian be liable for indirect, punitive, special execution or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on account filing of any action paper with any parties hereto or omission any further act on the part of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for the use or application by any of the Issuers parties hereto except where an instrument or transfer or assignment is required by law to effect such succession, anything herein to the Purchaser of any Securities or the proceeds of any Securitiescontrary notwithstanding.
Appears in 1 contract
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that 1. Except as hereinafter provided, neither the Custodian (i) Custo- dxxx nor its nominee shall not be responsible liable for any loss or damage including counsel fees, resulting from its action or omis- sion to act or otherwise, except for any such loss or damage arising out of its own negligence or willful misconduct. The Custodian may, with respect to questions of law, apply for and obtain the advice and opinion of counsel to the Fund or of its own counsel, at the expense of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewithFund, and shall not otherwise be bound thereby, (ii) fully protected with respect to anything it does or fails to do in good faith in conf ormity with such advice or opinion. The Custodian shall be obligated only liable to the Fund for any loss or damage resulting from the performance use of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties the Book-Entry System or obligations any Depository arising by reason of any kind shall be read into this Agreement against negli- gence, misfeasance or misconduct on the part of the CustodianCusto- dxxx or any of its employees or agents.
2. Without limiting the generality of the foregoing, (iii) the Custodian shall be under no obligation to inquire into, and shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, liable for:
(iva) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by The validity of the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect issue of any action takenSecurities purchased by or for the Fund, suffered the legality of the purchase thereof or omitted by it hereunder in good faith and in accordance with the opinion or advice propriety of such counsel.the amount paid therefor;
(b) The legality of the sale of any Securities by or for the Fund, or the propriety of the amount for which the same are sold;
(a) The legality of the issue or sale of any shares of the Fund, or the sufficiency of the amount to be received therefor;
(d) The legality of the redemption of any.-shares of the Fund, or the propriety of the amount to be paid therefor;
(e) The legality of the declaration or.payment of any dividend by the Fund;
(f) The legality of any borrowing by the Fund using Securities as collateral; or
(g) The legality of any loan of portfolio Securi- ties pursuant to Article VIII of this Agreement, nor shall the Custodian be under any duty or obligation to see to it that any 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 of the Fund is adequate collateral for the Fund against any loss it night sustain as a result of such loan. The Custodian specifically, but not by way of limitation, shall not be under any duty or obliga- tion periodically to check or notify the Fund that the amount of such collateral held by it for the Fund id suffi- cient collateral for the Fund, but such duty or obligation shall be the sole responsibility of the Fund. In addition, the Custodian shall be under no duty or obligation to see that any broker, dealer or of financial institution to which portfolio Securities of the Fund are lent pursuant to Article VIII of this Agreement 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 the Custo- dxxx shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due.
3. The Custodian shall not be liable to anyone for any action taken for, or omitted consid- ered to be taken the Custodian of, any money, whether or not rep- resented by it hereunder except in any check, draft, or other instrument for the case payment of money, received by It on behalf of the Custodian's negligence Fund until the Custodian actually receives and collects such money directly or willful misconduct in breach by the final crediting of the terms of this Agreement. In no event shall account representing the Custodian be liable for indirect, punitive, special Fund's interest at the Book-Entry System or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of actionDepository.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities4. The Custodian shall not be accountable under any duty, or obligation to take action to effect collection of any amount due to the Fund from the Transfer Agent of the Fund nor to take any action to effect payment or distribution by the Transfer Agent of the Fund of any amount paid by the Custodian to the Transfer Agent of the Fund in accordance with this Agreement.
5. The 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 a Certificate and (II) it shall be assured to its satisfaction of reimbursement of its costs and expenses in connection with any such action.
6. The Custodian may appoint one or more banking in stitutions as Depository or Depositories or as Sub-Custodian or Sub-Custodians, including, but not limited to, banking institutions located in foreign countries, of Securities and moneys at any time owned by the Fund, upon terms and con- ditions approved in a Certificate.
7. The Custodian shall not be under any duty or obli- gation to ascertain whether any Securities at any time de- livered to or held by it for the use or application by any account of the Issuers Fund and specifically allocated to a Series are such as properly may be held by the Fund and allocated to such Series under the provisions of its Declaration of Trust.
8. The Custodian shall be entitled to receive and the Fund agrees to pay to the Custodian with respect to each Series such compensation as may be agreed upon from time to time between the Custodian and the Fund. The Custodian may charge such compensation and any expenses incurred by the Custodian in the performance of its duties with respect to a Series pursuant to such agreement against any moneys speci- fically allocated to such Series. Unless and until the Fund instructs the Custodian by a Certificate to apportion any loss, damage, liability or expenses among the Purchaser Series in a different manner, the Custodian shall also be entitled to charge against any money held by it for the account of a Series such Series' pro rata share (based on the relation- ship of such Series' net-asset value at the time of the change to the aggregate net asset value of all Series at that time) the amount of any loss, damage, liability or expense (including counsel fees) for which it shall be entitled to reimbursement under the provisions of this agreement. The expenses which the Custodian may charge against the account of a Series include, but are not limited to the expenss of Sub-Custodians and foreign branches of the Custodian incurred in setting outside of New York City transactions involving the purchase and sale of Securities of such Series.
9. The Custodian shall be entitled to rely upon any Certificate, notice or other instrument in writing received by the proceeds Custodian and reasonably believed by the Custodian to be genuine and to be a Certificate. Tne Custodian shall be entitled to rely upon any Oral Instructions and any Written Instructions actually received by the Custodian pursuant to Articles IV and V hereof and reasonably believed by the Custodian to be genuine and to be given by an Authorized Person. The Fund agrees to forward to the Custodian a Certificate or facsimile thereof confirming such Oral Instructions in such manner so that such Certificate or facsimile thereof is received by the Custodian, whether by hand delivery, telecopier or other similar devices, or otherwise by the close of business on the same day that such Oral instructions or Written Instructions are given to the Custodian. The Fund agrees that the fact that such confirm- ing Certificate or facsimile thereof is not received by the Custodian shall in no way affect the validity or enforce- ability of the transactions, hereby authorized by the Fund. The Fund agrees that the Custodian shall incur no liability to the Fund in acting upon Oral Instructions or Written Instructions given to the Custodian hereunder concerning such transactions provided such instructions reasonably appear to have been received from an Authorized Person.
10. The Books and records of the Custodian shall be open to inspection and audit at reasonable times by Officers and auditors employed by the Fund.
11. The Custodian shall provide the Fund with any report obtained by the Custodian on the system of internal accounting control of the Book-Entry System and the Deposi- tory and with such reports on its own systems of internal accounting control as the Fund may reasonably request from time to time.
12. The Fund agrees to indemnify the Custodian against and save the Custodian harmless from all liability, claims, losses and demands whatsoever, including attorney's fees, howsoever arising or incurred because of or in connection with the Custodian's payment of non-payment of a check pursuant to paragraph 6 of Article VI as part of any Securitiescheck redemption privilege program of the Fund, except for any such liability, claim, loss and demand arising put of the Custodian's own negligence or willful misconduct.
13. The Custodian shall have no duties or responsibi- lities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no cove- nant or obligation shall be implied in this Agreement against the Custodian.
Appears in 1 contract
Samples: Custody Agreement (Merrill Lynch Retirement Reserves Mo Fu of Mer Lyn Re Ser Tr)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that In the Custodian (i) shall not be responsible for any absence of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or bad faith on the part of the Custodian, (iii) shall not be obligated the Custodian may conclusively rely, as to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnificationthe truth of the statements and the correctness of the opinions expressed therein, (iv) may rely on and shall be protected in acting or refraining from acting upon any written noticerequest, instruction, instrument, statement, certificate, request opinion or other document furnished to it hereunder and the Custodian, reasonably believed by it the Custodian to be genuine and to have been signed or presented by the proper personparty or parties and conforming to the requirements of this Custodial Agreement; but in the case of any Mortgage Loan Document or other request, instruction, document or certificate which by any provision hereof is specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same in accordance with the requirements of this Custodial Agreement. The Custodian undertakes to perform such duties and only such duties as are specifically set forth in this Custodial Agreement. The Custodian shall not have any duties or responsibilities except those expressly set forth in this Custodial Agreement. The Custodian shall not be liable for any error of judgment made in good faith by an officer or officers of the Custodian, unless it shall be conclusively determined by a court of competent jurisdiction that the Custodian was negligent in ascertaining the pertinent facts. The Custodian shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction of the Borrower or the Lender given under this Custodial Agreement. None of the provisions of this Custodial Agreement shall require the Custodian to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have no responsibility reasonable grounds for determining the accuracy thereof, and (v) believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it. The Custodian may consult with counsel satisfactory to it, including in-house counsel, and the written advice or any written opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel. Any entity into which the opinion Custodian may be merged or advice of such counsel.
(b) The converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Custodian shall not be liable a party, or any entity succeeding to anyone for any action taken or omitted to be taken by it hereunder except in the case business of the Custodian's negligence or willful misconduct in breach Custodian shall be the successor of the terms Custodian hereunder without the execution or filing of this Agreementany paper with any parties hereto or any further act on the part of any of the parties hereto except where an instrument or transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding. In no event shall order to comply with its duties under the U.S.A. Patriot Act, the Custodian be liable for indirectshall obtain and verify certain information and documentation from the other parties hereto, punitiveincluding, special or consequential damage or loss (including but not limited to lost profits) whatsoeverto, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depositoryparty's name, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaseraddress, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any Securitiesother identifying information.
Appears in 1 contract
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that Neither the Custodian (i) shall not be responsible for nor any of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities)its directors, affiliates, officers, agents, or for determining or compelling compliance therewithemployees, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Custodian shall not be liable to anyone for any action taken or omitted to be taken by it or them hereunder or in connection herewith in good faith and believed by it or them to be within the purview of this Custodial Agreement, except in the case of the Custodian's negligence for its or their own gross negligence, bad faith or willful misconduct in breach of the terms of this Agreementmisconduct. In no event shall the Custodian or its directors, affiliates, officers, agents, or employees be held liable for any special, indirect or consequential damages resulting from any action taken or omitted to be taken by it or them hereunder or in connection herewith, even if advised of the possibility of such damages. The Servicer agrees to indemnify, from the Servicer's own funds, and hold the Custodian and its directors, affiliates, officers, agents, and employees harmless against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, or disbursements of any kind or nature whatsoever, including reasonable attorneys' fees, that may be imposed on, incurred by or asserted against it or them in any way relating to or arising out of liabilities, obligations, judgments, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements other than those which were imposed on, incurred by or asserted against the Custodian, because of the breach by the Custodian of its obligations hereunder, which breach was caused by negligence, bad faith, or willful misconduct on the part of the Custodian or any of its directors, affiliates, officers, agents, or employees. The indemnification set forth in this section shall survive any termination of this Custodial Agreement and the termination and removal of the Custodian. Notwithstanding anything to the contrary herein or in the Pooling and Servicing Agreement, it is hereby understood that the Trustee shall not be liable for indirectthe acts, punitiveomissions, special duties, obligations or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed liabilities of the likelihood of such loss or damage and regardless of the form of actionCustodian.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any Securities.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Gs Mortgage Securities Corp)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that Except as hereinafter provided, or as provided in Article VIII neither the Custodian (i) nor its nominee shall not be responsible liable for any of the agreements referred to loss or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to itdamage, including in-house counselcounsel fees, and the opinion resulting from its action or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action takenomission to act or otherwise, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Custodian shall not be liable to anyone except for any action taken such loss or omitted to be taken by it hereunder except in the case damage arising out of the Custodian's its own gross negligence or willful misconduct in breach of the terms of this Agreementmisconduct. In no event shall the Custodian be liable to the Primary Custodian, the Trust, any Fund, or any other third party for indirectspecial, punitive, special indirect or consequential damage damages or lost profits or loss (including but not limited to lost profits) whatsoeverof business, arising under or in connection with this Agreement, even if the Custodian has been previously informed of the likelihood possibility of such loss or damage damages and regardless of the form of action. The Custodian may, with respect to questions of law arising hereunder, apply for and obtain the advice and opinion of counsel to the Primary Custodian, or of its own counsel (provided such counsel is selected with due care by the Custodian) at the reasonable expense of the Primary Custodian, and shall be fully protected with respect to anything done or omitted by it in conformity with such advice or opinion.
(b) The Custodian agrees to indemnify the Primary Custodian against, and save the Primary Custodian harmless from, any direct money damages to the extent the same are cause by the Custodian's gross negligence or willful misconduct, and the related reasonable fees and expenses of counsel.
2. Without limiting the generality of the foregoing, the Custodian shall be under no obligation to inquire into, and shall not be liable for:
(a) the validity of the issue of any Securities purchased, sold, or written by or for a Fund, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor; provided such Securities appear authentic on their face;
(b) the legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor;
(c) The Custodian shall have no more the legality of the declaration or less responsibility or liability on account payment of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed dividend by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.a Fund;
(d) The recitals contained herein the legality of any borrowing by a Fund using Securities as collateral;
(e) the legality of any loan of portfolio Securities by a Fund, nor shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility be under any duty or obligation to see to it that any cash 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 of a Fund is adequate collateral for the correctness such Fund against any loss it might sustain as a result of the samesuch loan. The Custodian makes specifically, but not by way of limitation, shall not be under any duty or obligation periodically to check or notify any Fund or the Primary Custodian that the amount of such cash collateral held by it for a Fund is sufficient collateral for such Fund, but such duty or obligation shall be the sole responsibility of such Fund. In addition, the Custodian shall be under no representations as duty or obligation to the validity see that any broker, dealer or sufficiency financial institution to which portfolio Securities of a Fund are lent pursuant to Article V of this Agreement makes payment to it of any dividends or interest which are payable to or for the Securitiesaccount of such Fund during the period of such loan or at the termination of such loan, provided, however, that the Custodian shall promptly notify the Primary Custodian in the event that such dividends or interest are not paid and received when due; or
(f) the authority of the Primary Custodian or any Authorized Person to give Certificates, Written Instructions or Oral Instructions on behalf of any Fund, or any Fund's compliance with the 1940 Act.
3. The Custodian shall not be accountable liable for, or considered to be the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the use payment of money, received by it or application a Foreign Sub-Custodian on behalf of a Fund until the Custodian or a Foreign Sub-Custodian actually receives and collects such money directly or by the final crediting of the account representing the Fund's interest at the foreign book-entry or securities depository.
(a) Whenever Securities (including, but not limited to, warrants, options, conversions, redemptions, tenders, options to tender or non-mandatory puts or calls) confer optional rights on the Trust, or provide for discretionary action or alternative courses of action by the Primary Custodian, the Primary Custodian shall be responsible for making for delivering a Certificate to the Custodian. In order for the Custodian or a Foreign Sub- Custodian to act, the Custodian must receive such Certificate at the Custodian's offices, addressed as the Custodian may from time to time request, by no later than the deadline specified by the Custodian, in its sole discretion, from time to time. Absent the Custodian's receipt of such Certificate prior to its specified deadlines, the Custodian shall not be liable for failure to take any action relating to or to exercise any rights conferred by such Securities.
(b) The Custodian shall endeavor to notify the Primary Custodian of such rights or discretionary actions or of the date or dates by when such rights must be exercised or such action must be taken provided that Custodian has received, directly or from a Foreign Sub-Custodian from the issuer, or, from one of the nationally or internationally recognized bond or corporate action services to which Custodian subscribes, timely notice of such rights or discretionary corporate action or of the date or dates such rights must be exercised or such action must be taken. Absent actual receipt of such notice, Custodian shall have no liability for failing to so notify the Primary Custodian.
(c) With respect to all Securities, however registered, the voting rights are to be exercised only by the Primary Custodian or its nominee. Custodian's only duty shall be to provide the Primary Custodian with access to a provider of global proxy services (the cost of which will be paid by the Primary Custodian). Other than to provide access to such provider of global proxy services Custodian shall have no obligations with respect to voting.
4. The 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 a Certificate and (ii) it shall be assured to its satisfaction of reimbursement of its costs and expenses in connection with any such action.
5. The Custodian shall not be under any duty or obligation (a) to ascertain whether any Securities at any time delivered to, or held by it or by any Foreign Sub-Custodian, for the account of the Issuers Fund and specifically allocated to a Fund are such as properly may be held by the Fund or such Series under the Purchaser provisions of its then current prospectus, or (b) to ascertain whether any transactions by the Fund, whether or not involving the Custodian, are such transactions as may properly be engaged in by the Fund.
6. The Custodian shall be entitled to receive and the Primary Custodian agrees to pay to the Custodian all out-of-pocket expenses and such compensation as may be agreed upon from time to time between the Custodian and the Primary Custodian. The expenses for which the Custodian shall be entitled to reimbursement hereunder shall include, but are not limited to, the expenses of sub-custodians and foreign branches of the Custodian incurred in settling outside of New York City transactions involving the purchase and sale of Securities of the Fund.
7. The Custodian shall be entitled to rely upon any Certificate, notice or other instrument in writing received by the Custodian and reasonably believed by the Custodian to be a Certificate. The Custodian shall be entitled to rely upon any Oral Instructions actually received by the Custodian hereinabove provided for. The Primary Custodian agrees to forward to the Custodian a Certificate or facsimile thereof confirming such Oral Instructions in such manner so that such Certificate or facsimile thereof is received by the 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 the Custodian. The Primary Custodian agrees that the fact that such confirming instructions are not received, or that contrary instructions are received, by the Custodian shall in no way affect the validity of the transactions or enforceability of the transactions hereby authorized. The Primary Custodian agrees that the Custodian shall incur no liability to the Fund in acting upon Oral Instructions given to the Custodian hereunder concerning such transactions provided such instructions reasonably appear to have been received from an Authorized Person.
8. The books and records pertaining to the Trust which are in the possession of the Custodian shall be the property of the Trust. Such books and records shall be prepared and maintained as required by the 1940 Act, as amended, and other applicable securities laws and rules and regulations. The Trust or its authorized representatives, shall have access to such books and records during the Custodian's normal business hours. Upon the reasonable request of the Trust, copies of any such books and records shall be provided by the Custodian to the Trust or its authorized representative, and the Primary Custodian shall reimburse the Custodian its expenses of providing such copies. Upon reasonable request of the Trust, the Custodian shall provide in hard copy or on micro-film, whichever the Custodian elects, any records included in any such delivery which are maintained by the Custodian on a computer disc, or are similarly maintained, and the Primary Custodian shall reimburse the Custodian for its expenses of providing such hard copy or micro-film.
9. The Custodian shall provide the Primary Custodian with such reports on its own systems of internal accounting control as the Primary Custodian may reasonably request from time to time.
10. The Primary Custodian agrees to indemnify the Custodian against and save the Custodian harmless from any direct money damages (but not any incidental, indirect, special, or consequential damages, or any lost profits or loss of business) howsoever arising or incurred because of or in connection with this Agreement, and the related reasonable fees and expenses of counsel, except to the extent the same arise out of the Custodian's own gross negligence or willful misconduct.
11. Subject to the foregoing provisions of this Agreement, including, without limitation, those contained in Articles VIII and IX the Custodian may deliver and receive Securities, and receipts with respect to such Securities, and arrange for payments to be made and received by the Custodian in accordance with the customs prevailing from time to time among brokers or dealers in such Securities. When the Custodian is instructed to deliver Securities against payment, delivery of such Securities and receipt of payment therefor may not be completed simultaneously. If the Custodian or any Foreign Sub-Custodian delivers and receives Securities and receipts therefor, and arranges for payments to be made or received by Custodian or any Foreign Sub-Custodian in accordance with customs and practices in the proceeds jurisdiction or markets in which the transaction occurs, the Custodian, shall not have nor assume any responsibility or liability for any credit risks involved in connection with the Custodian's delivery of any SecuritiesSecurities pursuant to Certificates, Written Instructions or Oral Instructions.
12. The 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 in this Agreement against the Custodian.
Appears in 1 contract
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees The Custodian shall have no duties or responsibilities except those that are specifically set forth herein, it being expressly understood that no duties or obligations shall be implied against the Custodian. Provided that the Custodian has followed the terms of this Agreement or the Issuer’s instructions, the Custodian shall be under no responsibility or duty with respect to the disposition of any Mortgage Notes, Mortgages and Assignments of Mortgages while such Mortgage Notes, Mortgages or Assignments of Mortgages are not in its possession. If the Custodian shall request instructions from the Issuer with respect to any act, action or failure to act in connection with this Agreement other than an act, action or failure to act which is provided for or required of the Custodian by the terms of this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Issuer without incurring any liability therefor to the Issuer, the Company or any other Person.
(ib) If the Custodian shall at any time receive conflicting instructions from the Issuer and the Company with respect to any of the Mortgage Notes, Mortgages and Assignments of Mortgages and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Custodian shall follow the instructions of the Issuer and shall not be liable to the Company as a result. If the Custodian shall at any time receive conflicting instructions from the Issuer, the Company and the Collateral Agent with respect to any of the Mortgage Notes, Mortgages and Assignments of Mortgages and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Custodian shall follow the instructions of the Collateral Agent and shall not be liable to the Issuer or the Seller as a result. The Custodian shall not be responsible to the Issuer or any other party for recitals, statements or warranties or representations of the Company, the Issuer or the Collateral Agent contained herein, or in any other document or be bound to ascertain or inquire as to the performance or observance of any of the agreements referred to terms of this Agreement or described herein any other agreement on the part of any party other than itself.
(including without limitation c) None of the Custodian, its Affiliates or any Issuer's Declaration of their respective directors, officers, agents, attorneys, employees, successors or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) assigns shall be obligated only liable for any action taken or omitted to be taken by it or them hereunder or in connection herewith in good faith and believed by it or them to be within the performance purview of this Agreement, except for its or their own gross negligence, fraud, bad faith or willful misconduct. Notwithstanding the foregoing sentence, in no event shall the Custodian or its Affiliates, directors, officers, agents and employees be held liable for any special, indirect, punitive or consequential damages resulting from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each damages.
(d) In the absence of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or bad faith on the part of the Custodian, (iii) shall not be obligated the Custodian may conclusively rely, as to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnificationthe truth of the statements and the correctness of the opinions expressed therein, (iv) may rely on and shall be protected in acting or refraining from acting upon any written noticerequest, instruction, instrument, statementinstructions, certificate, request opinion or other document furnished to it hereunder and the Custodian reasonably believed by it the Custodian to be genuine and to have been signed or presented by the proper personparty or parties and conforming to the requirements of this Agreement absent notice to the contrary. Absent written notice to the contrary from the Issuer, the Collateral Agent, the Company, any SLN Placement Agent or any Swap Counterparty, the Custodian may conclusively rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Company will hold the Custodian harmless from any claims which may arise or be asserted against the Custodian because of the invalidity of any such documents, or their failure to fulfill their intended purpose. Notwithstanding the foregoing, it is expressly understood that in the case of any Mortgage Note, Mortgage, Assignment of Mortgage or other documents or other request, instruction, document or certificate which by any provision hereof is specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same to determine whether or not such document conforms to the requirements of this Agreement (which examination, in the case of any Mortgage Note, Mortgage, or Assignment of Mortgage, shall be in accordance with the Review Procedure), and to make the Certifications required by Section 4 of this Agreement.
(e) The Custodian shall not be responsible for preparing or filing any reports or returns relating to federal, state or local incomes taxes with respect to this Agreement, other than for the Custodian’s compensation or for reimbursement of expenses.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice, and shall not be bound by any of the terms and conditions of, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms and conditions (including, without limitation, definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent that such terms and provisions are referenced, or are incorporated by reference, into this Agreement only as long as the Company shall have provided a copy of any such document or agreement to the Custodian. The Company shall provide the Custodian with an executed copy of the Mortgage Loan Purchase and Servicing Agreement and the Security Agreement.
(g) The duties and obligations of the Custodian shall only be such as are expressly set forth in this Agreement or as set forth in a written amendment to this Agreement executed by the parties hereto or their successors and assigns. In the event that any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility for determining to ascertain or take action except as expressly provided herein.
(h) Nothing in this Agreement shall be deemed to impose on the accuracy thereofCustodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage Loan File is or may be held by the Custodian from time to time hereunder, and (vii) any jurisdiction where its ownership or property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties hereunder.
(i) Under no circumstances shall the Custodian be obligated to verify the authenticity of any signature on any of the documents received or examined by it in connection with this Agreement or the authority or capacity of any person to execute or issue such document, nor shall the Custodian be responsible for the value, form, substance, validity, perfection (other than by taking and continuing possession of the Mortgage Notes, Mortgages and Assignments of Mortgages), recordability, priority, effectiveness or enforceability of any such documents, nor shall the Custodian be under a duty to inspect, review or examine the documents to determine whether they are appropriate for the represented purpose or that they have been actually recorded or that they are other than what they purport to be on their face.
(j) The Custodian shall have no duty to ascertain whether or not any cash amount or payment has been received by the Company, the Seller, the Servicer or any third person.
(k) The Custodian is not required to produce a borrowing base report or any other report detailing the value of the Mortgage Loans.
(l) The Custodian is not required to perform any cash movement and reconciliation functions on behalf of the Company, the Seller, the Servicer or the Issuer in relation to this Agreement.
(m) Any Person into which the Custodian may be merged or converted, or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Custodian shall be a party, or any Person succeeding to the business of the Custodian, shall be the successor of the Custodian hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
(n) The Custodian may delegate any of its duties under this Agreement to any of its agents, attorneys-in-fact, or Affiliates selected with due care, and shall not be liable for their gross negligence or willful misconduct. Any such agent, attorney-in-fact, or Affiliate (and such Affiliate’s directors, officers, agents and employees) which performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver and other protective provisions to which the Custodian is entitled under this Agreement.
(o) The Custodian may consult with counsel satisfactory selected by the Custodian with regard to it, including in-house counsellegal questions arising out of or in connection with this Agreement, and the advice or opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action reasonably taken, omitted or suffered or omitted by it hereunder the Custodian in good faith and in accordance with the opinion or advice of such counseltherewith.
(bp) The Custodian shall not be liable to anyone responsible for any action taken delays or omitted to failures in performance resulting from acts beyond its control. Such acts shall include, but not be taken by it hereunder except limited to, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters.
(q) Notwithstanding the foregoing limitations in this Section 18, nothing in this Agreement which references the case “Affiliates” of the Custodian's negligence or willful misconduct in breach , shall constitute a limitation on the obligations of the terms of Collateral Agent arising under this Agreement. In no event shall the Custodian be liable for indirect, punitive, special Agreement or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed any of the likelihood of such loss or damage and regardless of the form of actionother Program Documents.
(cr) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each None of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency provisions of this Agreement shall require the Custodian to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the Securities. The Custodian shall not be accountable for the use or application by performance of any of its duties hereunder, or in the Issuers or the Purchaser exercise of any Securities of its rights or the proceeds powers if it shall have reasonable grounds for believing that repayment of any Securitiessuch funds or indemnity satisfactory to it against such risk or liability is not assured to it.
Appears in 1 contract
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that the A. The Custodian (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only paid as compensation for the performance of such duties as are expressly and specifically set forth in its services pursuant to this Agreement on its part such compensation as may from time to time be performed, each of which are ministerial (and shall not be construed to be fiduciary) agreed upon in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on writing between the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counseltwo parties.
(b) B. The Custodian shall not be liable to anyone for any action taken in good faith upon any officers' certificate as herein defined or omitted to be taken by it hereunder except in the case certified copy of any resolution of the Custodian's Trustees or of the Executive Committee, and may rely on the genuineness of any such document which it may in good faith believe to have been validly executed.
C. The Custodian shall not be liable for any loss or damage, resulting from its action or omission to act or otherwise, except for any such loss or damage arising out of its own negligence or willful misconduct and except that the Custodian shall be responsible for the acts of any sub-custodian or agent appointed hereunder. The Custodian may apply for and obtain the advice and opinion of counsel to the Trust or of its own counsel with respect to questions of law, and shall be fully protected with respect to anything done or omitted by it in breach good faith, in conformity with such advice or opinion.
D. Without limiting the generality of the terms of this Agreement. In no event shall foregoing, the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for indirect, punitive, special or consequential damage or loss for:
(including but not limited to lost profitsa) whatsoever, even if the Custodian has been informed The validity of the likelihood issue of such loss any securities purchased by or damage and regardless for the Trust, the legality of the form purchase thereof, or the propriety of action.the amount paid therefor;
(b) The legality of the issue or sale of any securities by or for the Trust, or the propriety of the amount for which the same are sold;
(c) The Custodian shall have no more legality of the issue or less responsibility or liability on account sale of any action shares of the Trust, or omission the sufficiency of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has amount to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.be received therefor;
(d) The recitals contained herein shall be taken as the statements of each legality of the Issuers and redemption of any shares of the PurchaserTrust, and or the Custodian assumes no responsibility propriety of the amount to be paid therefor;
(e) The legality of the declaration of any dividend or distribution by the Trust, or the legality of the issue of any shares of the Trust in payment of any dividend or distribution in shares;
(f) The legality of the delivery of any securities held for the correctness Trust for the purpose of collateralizing the obligation of the same. Trust to repay any moneys borrowed by the Trust; or
(g) The Custodian makes no representations as legality of the delivery of any securities held for the Trust for the purpose of loaning said securities to the validity any person, firm or sufficiency of this Agreement or the Securities. corporation.
E. The Custodian shall not be accountable 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 signed in the name of the Trust by one of its executive officers, and (ii) it shall be assured to its satisfaction of reimbursement of its costs and expenses in connection with any such action.
F. The Custodian shall not be under any duty or obligation to ascertain whether any securities at any time delivered to or held by it for the use or application by any account of the Issuers Trust, are such as may properly be held by the Trust under the provisions of its Declaration of Trust.
G. The Trust agrees to indemnify and hold harmless the Custodian and its nominee from all taxes, charges, expenses, assessments, claims, liabilities, and losses (including counsel fees) incurred or assessed against it or its nominee in connection with the Purchaser performance of this Agreement, except such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. The Custodian is authorized to charge any account of the Trust for such items. In the event of any Securities advance of funds for any purpose made by the Custodian resulting from orders or instructions of the proceeds Trust, or in the event that the Custodian or its nominee shall incur or be assessed any taxes, charges, expenses, assessments, claims or liabilities in connection with the performance this Agreement, except such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of any Securitiesthe Trust shall be security therefor.
Appears in 1 contract
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that In the Custodian (i) shall not be responsible for any absence of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or bad faith on the part of the Custodian, (iii) shall not be obligated the Custodian may conclusively rely, as to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnificationthe truth of the statements and the correctness of the opinions expressed therein, (iv) may rely on and shall be protected in acting or refraining from acting upon any written noticerequest, instruction, instrument, statement, certificate, request opinion or other document furnished to it hereunder and the Custodian, reasonably believed by it the Custodian to be genuine and to have been signed or presented by the proper personparty or parties and conforming to the requirements of this Custodial Agreement; but in the case of any Loan Document or other request, instruction, document or certificate which by any provision hereof is specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same in accordance with the requirements of this Custodial Agreement. The Custodian undertakes to perform such duties and only such duties as are specifically set forth in this Custodial Agreement. The Custodian shall not have any duties or responsibilities except those expressly set forth in this Custodial Agreement. The Custodian shall not be liable for any error of judgment made in good faith by an officer or officers of the Custodian, unless it shall be conclusively determined by a court of competent jurisdiction that the Custodian was negligent in ascertaining the pertinent facts. The Custodian shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction of the Sellers or the Buyer given under this Custodial Agreement. None of the provisions of this Custodial Agreement shall require the Custodian to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have no responsibility reasonable grounds for determining the accuracy thereof, and (v) believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it. The Custodian may consult with external counsel satisfactory to it, including in-house counsel, and the written advice or any written opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel. Any entity into which the opinion Custodian may be merged or advice of such counsel.
(b) The converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Custodian shall not be liable a party, or any entity succeeding to anyone for any action taken or omitted to be taken by it hereunder except in the case business of the Custodian's negligence or willful misconduct in breach Custodian shall be the successor of the terms Custodian hereunder without the execution or filing of this Agreementany paper with any parties hereto or any further act on the part of any of the parties hereto except when an instrument or transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding. In no event shall To help fight the funding of terrorism and money laundering activities, the Custodian be liable will obtain, verify and record information that identifies individuals or entities that establish a relationship or open an account with the Custodian. The custodian will ask for indirectthe name, punitiveaddress, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if tax identification number and other information that will allow the Custodian has been informed of to identify the likelihood of such loss individual or damage and regardless of entity who is establishing the form of action.
(c) The Custodian shall have no more relationship or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by opening the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the sameaccount. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable may also ask for the use formation documents such as articles of incorporation, an offering memorandum or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any Securitiesother identifying documents to be provided.
Appears in 1 contract
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees The Custodian shall have no duties or responsibilities except those that are specifically set forth herein, it being expressly understood that no duties or obligations shall be implied against the Custodian. Provided that the Custodian has followed the terms of this Agreement or the Issuer’s instructions, the Custodian shall be under no responsibility or duty with respect to the disposition of any Mortgage Notes, Mortgages and Assignments of Mortgage while such Mortgage Notes, Mortgages or Assignments of Mortgage are not in its possession. If the Custodian shall request instructions from the Issuer with respect to any act, action or failure to act in connection with this Agreement other than an act, action or failure to act which is provided for or required of the Custodian by the terms of this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Issuer without incurring any liability therefor to the Issuer, the Servicer, the Sellers or any other Person.
(ib) If the Custodian shall at any time receive conflicting instructions from the Issuer, the Sellers or the Servicer with respect to any of the Mortgage Notes, Mortgages and Assignments of Mortgage and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Custodian shall follow the instructions of the Issuer and shall not be liable to the Sellers or the Servicer as a result. If the Custodian shall at any time receive conflicting instructions from the Issuer, the Sellers or the Servicer and the Collateral Agent with respect to any of the Mortgage Notes, Mortgages and Assignments of Mortgage and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Custodian shall follow the instructions of the Collateral Agent and shall not be liable to the Issuer or the Sellers as a result. The Custodian shall not be responsible to the Issuer or any other party for recitals, statements or warranties or representations of the Sellers or the Servicer, the Issuer or the Collateral Agent contained herein, or in any other document or be bound to ascertain or inquire as to the performance or observance of any of the agreements referred to terms of this Agreement or described herein any other agreement on the part of any party other than itself.
(including without limitation c) None of the Custodian, its Affiliates or any Issuer's Declaration of their respective directors, officers, agents, attorneys, employees, successors or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) assigns shall be obligated only liable for any action taken or omitted to be taken by it or them hereunder or in connection herewith in good faith and believed by it or them to be within the performance purview of this Agreement, except for its or their own gross negligence, fraud, bad faith or willful misconduct. Notwithstanding the foregoing sentence, in no event shall the Custodian or its Affiliates, directors, officers, agents and employees be held liable for any special, indirect, punitive or consequential damages resulting from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each damages.
(d) In the absence of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or bad faith on the part of the Custodian, (iii) shall not be obligated the Custodian may conclusively rely, as to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnificationthe truth of the statements and the correctness of the opinions expressed therein, (iv) may rely on and shall be protected in acting or refraining from acting upon any written noticerequest, instruction, instrument, statementinstructions, certificate, request opinion or other document furnished to it hereunder and the Custodian reasonably believed by it the Custodian to be genuine and to have been signed or presented by the proper personparty or parties and conforming to the requirements of this Agreement absent notice to the contrary. Absent written notice to the contrary from the Issuer, the Collateral Agent, the Servicer, the Sellers, any SLN Placement Agent or any Swap Counterparty, the Custodian may conclusively rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Servicer and each Seller will hold the Custodian harmless from any claims which may arise or be asserted against the Custodian because of the invalidity of any such documents, or their failure to fulfill their intended purpose. Notwithstanding the foregoing, it is expressly understood that in the case of any Mortgage Note, Mortgage, Assignment of Mortgage or other document or other request, instruction, document or certificate which by any provision hereof is specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same to determine whether or not such document conforms to the requirements of this Agreement (which examination, in the case of any Mortgage Note, Mortgage, or Assignment of Mortgage, shall be in accordance with the Review Procedure), and to make the Certifications required by Section 4 of this Agreement.
(e) The Custodian shall not be responsible for preparing or filing any reports or returns relating to federal, state or local incomes taxes with respect to this Agreement, other than for the Custodian’s compensation or for reimbursement of expenses.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice, and shall not be bound by any of the terms and conditions of, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms and conditions (including, without limitation, definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent that such terms and provisions are referenced, or are incorporated by reference, into this Agreement only as long as the Servicer shall have provided a copy of any such document or agreement to the Custodian. The Servicer shall provide the Custodian with an executed copy of the Mortgage Loan Purchase and Servicing Agreement and the Security Agreement.
(g) The duties and obligations of the Custodian shall only be such as are expressly set forth in this Agreement or as set forth in a written amendment to this Agreement executed by the parties hereto or their successors and assigns. In the event that any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility for determining to ascertain or take action except as expressly provided herein.
(h) Nothing in this Agreement shall be deemed to impose on the accuracy thereofCustodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage Loan File is or may be held by the Custodian from time to time hereunder, and (vii) any jurisdiction where its ownership or property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties hereunder.
(i) Under no circumstances shall the Custodian be obligated to verify the authenticity of any signature on any of the documents received or examined by it in connection with this Agreement or the authority or capacity of any person to execute or issue such document, nor shall the Custodian be responsible for the value, form, substance, validity, perfection (other than by taking and continuing possession of the Mortgage Notes, Mortgages and Assignments of Mortgage), recordability, priority, effectiveness or enforceability of any such documents, nor shall the Custodian be under a duty to inspect, review or examine the documents to determine whether they are appropriate for the represented purpose or that they have been actually recorded or that they are other than what they purport to be on their face.
(j) The Custodian shall have no duty to ascertain whether or not any cash amount or payment has been received by a Seller, the Servicer or any third person.
(k) The Custodian is not required to produce a borrowing base report or any other report detailing the value of the Mortgage Loans.
(l) The Custodian is not required to perform any cash movement and reconciliation functions on behalf of the Sellers, the Servicer or the Issuer in relation to this Agreement.
(m) Any Person into which the Custodian may be merged or converted, or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Custodian shall be a party, or any Person succeeding to the business of the Custodian, shall be the successor of the Custodian hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
(n) The Custodian may delegate any of its duties under this Agreement to any of its agents, attorneys-in-fact, or Affiliates selected with due care, and shall not be liable for their gross negligence or willful misconduct. Any such agent, attorney-in-fact, or Affiliate (and such Affiliate’s directors, officers, agents and employees) which performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver and other protective provisions to which the Custodian is entitled under this Agreement.
(o) The Custodian may consult with counsel satisfactory selected by the Custodian with regard to it, including in-house counsellegal questions arising out of or in connection with this Agreement, and the advice or opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action reasonably taken, omitted or suffered or omitted by it hereunder the Custodian in good faith and in accordance with the opinion or advice of such counseltherewith.
(bp) The Custodian shall not be liable to anyone responsible for any action taken delays or omitted to failures in performance resulting from acts beyond its control. Such acts shall include, but not be taken by it hereunder except limited to, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters.
(q) Notwithstanding the foregoing limitations in this Section 18, nothing in this Agreement which references the case “Affiliates” of the Custodian's negligence or willful misconduct in breach , shall constitute a limitation on the obligations of the terms of Collateral Agent arising under this Agreement. In no event shall the Custodian be liable for indirect, punitive, special Agreement or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed any of the likelihood of such loss or damage and regardless of the form of actionother Program Documents.
(cr) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each None of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency provisions of this Agreement shall require the Custodian to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the Securities. The Custodian shall not be accountable for the use or application by performance of any of its duties hereunder, or in the Issuers or the Purchaser exercise of any Securities of its rights or the proceeds powers if it shall have reasonable grounds for believing that repayment of any Securitiessuch funds or indemnity satisfactory to it against such risk or liability is not assured to it.
Appears in 1 contract
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that The acceptance by the Custodian of its appointment hereunder is expressly subject to the following terms, which shall govern and apply to each of the terms and provisions of this Section 13 (whether or not so stated therein or herein):
(i) The Custodian shall not be responsible have no duties, obligations or responsibilities under this Section 13 or with respect to the Required Loan Documents except for any of the agreements referred to such duties, obligations or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties responsibilities as are expressly and specifically set forth in this Agreement Section 13 as duties obligations or responsibilities on its part to be performed, each and the duties obligations and responsibilities of which are ministerial (and the Custodian shall not be construed to be fiduciary) in naturedetermined solely by the express provisions of this Section 13. No implied duties, and no implied duties obligations or obligations of any kind responsibilities shall be read into this Agreement against against, or on the part of, the Custodian. Any permissive right of the CustodianCustodian to take any action hereunder shall not be construed as a duty.
(ii) The Custodian makes no representations as to and shall not be responsible for or required to verify (x) the validity, legality, enforceability, due authorization, effectiveness, recordability, insurability, sufficiency, value, form, substance, or genuineness of any of the documents contained in any Required Loan Document or (y) the collectability, validity, transferability, insurability, value, effectiveness, perfection, priority or suitability of any Required Loan Document or any document contained therein.
(iii) The Custodian shall have no responsibilities or duties with respect to any Required Loan Document while such Required Loan Document is not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, possession.
(iv) The Custodian may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request request, waiver, consent, opinion, report, receipt or other paper or document furnished to it hereunder in accordance with this Section 13, not only as to its due execution and believed by validity, but also as to the truth and accuracy of any information therein contained, which it in good faith believes to be genuine and to have been signed or presented by the proper personperson (which in the case of any instruction from or on behalf of the Borrower shall be an Authorized Person). The Custodian shall be entitled to reasonably presume the genuineness and due authority of any signature appearing thereon. The Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, and instruction, statement, certificate, request, waiver, consent, opinion, report, electronic communication, receipt or other paper or document, provided, however, that if the form thereof is specifically prescribed by the terms of this Section 13, the Custodian shall have no responsibility for determining examine the accuracy thereof, and same to determine whether it substantially conforms on its face to the requirements set forth herein.
(v) Neither the Custodian nor any of its directors, officers or employees shall be liable to anyone for any error of judgment, or for any act done or step taken or omitted to be taken by it (or any of its directors, officers of employees), or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, unless such action constitutes gross negligence or willful misconduct of the Custodian.
(vi) The Custodian shall not be liable for any action taken by it in good faith and reasonably believed by it to be within powers conferred upon it, or taken by it pursuant to any direction or instruction received by it in accordance with this Section 13, or omitted to be taken by it by reason of the lack of direction or instruction required hereby for such action.
(vii) The Custodian may consult with, and obtain advice from, legal counsel satisfactory selected in good faith, with respect to itany question as to any of the provisions hereof or its duties hereunder, including in-house counselor any matter relating hereto, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered suffered, or omitted by it hereunder the Custodian in good faith and in accordance with the advice or opinion or advice of such counsel. The reasonable costs and expenses of such advice or opinion shall be reimbursed by the Borrower pursuant to Section 12 hereof.
(bviii) No provision of this Agreement shall require the Custodian to expend or risk its own funds, take any action hereunder (or omit to take any action) or otherwise incur any financial liability in the performance of its duties under this Section 13 if it shall have grounds for believing that repayment of such funds or indemnity satisfactory is not assured to it.
(ix) The Custodian may act or exercise its duties or powers hereunder through agents or attorneys, and the Custodian shall not be liable or responsible for the actions or omissions of any such agent or attorney appointed and maintained with due care.
(x) If the Custodian shall request instructions from the Borrower with respect to anyone any act, action or failure to act in connection with this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Borrower without incurring any liability therefor to the Borrower, or any other Person.
(xi) In no event shall the Custodian or its directors, affiliates, officers, agents and employees be held liable for any lost profits or exemplary, punitive, special, indirect or consequential damages of any kind resulting from any action taken or omitted to be taken by it or them hereunder except or in the case connection herewith even if advised of the Custodian's negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood possibility of such loss or damage and regardless of the form of actiondamages.
(cxii) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for deemed to have notice of any fact, claim or demand with respect hereto unless a Responsible Officer of the use Custodian has actual knowledge thereof or application written notice thereof. Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of and shall not be bound by any of the Issuers or the Purchaser terms and conditions of any Securities other document or agreement unless the proceeds Custodian is a signatory party to that document or agreement.
(xiii) Nothing in this Section 13 shall be deemed to impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (x) any jurisdiction where any Required Loan Document is or may be held by the Custodian from time to time hereunder, and (y) any jurisdiction where its ownership of any Securitiesproperty or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Palmer Square Capital BDC Inc.)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that In the Custodian (i) shall not be responsible for any absence of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or bad faith on the part of the Custodian, (iii) shall not be obligated the Custodian may conclusively rely, as to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnificationthe truth of the statements and the correctness of the opinions expressed therein, (iv) may rely on and shall be protected in acting or refraining from acting upon any written noticerequest, instruction, instrument, statement, certificate, request opinion or other document furnished to it hereunder and the Custodian, reasonably believed by it the Custodian to be genuine and to have been signed or presented by the proper personparty or parties and conforming to the requirements of this Custodial Agreement; but in the case of any Mortgage Loan Document or other request, instruction, document or certificate which by any provision hereof is specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same in accordance with the requirements of this Custodial Agreement. The Custodian undertakes to perform such duties and only such duties as are specifically set forth in this Custodial Agreement. The Custodian shall not have any duties or responsibilities except those expressly set forth in this Custodial Agreement. The Custodian shall not be liable for any error of judgment made in good faith by an officer or officers of the Custodian, unless it shall be conclusively determined by a court of competent jurisdiction that the Custodian was negligent in ascertaining the pertinent facts. The Custodian shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction of the Seller or the Buyer given under this Custodial Agreement. None of the provisions of this Custodial Agreement shall require the Custodian to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have no responsibility reasonable grounds for determining the accuracy thereof, and (v) believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it. The Custodian may consult with counsel satisfactory to it, including in-house counsel, and the written advice or any written opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel. Any entity into which the opinion Custodian may be merged or advice of such counsel.
(b) The converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Custodian shall not be liable a party, or any entity succeeding to anyone for any action taken or omitted to be taken by it hereunder except in the case business of the Custodian's negligence or willful misconduct in breach Custodian shall be the successor of the terms Custodian hereunder without the execution or filing of this Agreementany paper with any parties hereto or any further act on the part of any of the parties hereto except where an instrument or transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding. In no event shall order to comply with its duties under the U.S.A. Patriot Act, the Custodian be liable for indirectshall obtain and verify certain information and documentation from the other parties hereto, punitiveincluding, special or consequential damage or loss (including but not limited to lost profits) whatsoeverto, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depositoryparty’s name, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaseraddress, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any Securitiesother identifying information.
Appears in 1 contract
Concerning the Custodian. The acceptance by the Custodian of its appointment hereunder is expressly subject to the following terms, which shall govern and apply to each of the terms and provisions of this Agreement (whether or not so stated therein or herein).
(a) Each Interested Party acknowledges and agrees that The Custodian shall have no duties, obligations or responsibilities under this Agreement or with respect to the Custodian (i) shall not be responsible Option Files or the Option Documents except for any of the agreements referred to such duties, obligations or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties responsibilities as are expressly and specifically set forth in this Agreement as duties, obligations or responsibilities on its part to be performed, each and the duties, obligations and responsibilities of which are ministerial (and the Custodian shall not be construed to be fiduciary) in naturedetermined solely by the express provisions of this Agreement. No implied duties, and no implied duties obligations or obligations of any kind responsibilities shall be read into this Agreement against against, or on the part of, the Custodian. Any permissive right of the Custodian, (iii) Custodian to take any action hereunder shall not be obligated construed as a duty.
(b) The Custodian makes no representations as to take and shall not be responsible for or required to verify (A) the validity, legality, enforceability, due authorization, effectiveness, recordability, insurability, sufficiency, value, form, substance, or genuineness of any legal of the documents contained in any Option File or other action hereunder which might (B) the collectability, validity, transferability, insurability, value, effectiveness, perfection, priority or suitability of any Option File or any document contained therein.
(c) The Custodian shall have no responsibilities or duties with respect to any Option File while such Option File is not in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, possession.
(ivd) The Custodian may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request request, waiver, consent, opinion, report, receipt or other paper or document furnished to it hereunder in accordance with this Agreement, not only as to its due execution and believed by validity, but also as to the truth and accuracy of any information therein contained, which it in good faith believes to be genuine and to have been signed or presented by the proper personperson (which in the case of any instruction from or on behalf of the Buyer Agent shall be an Authorized Representative). The Custodian shall be entitled to presume the genuineness and due authority of any signature appearing thereon. The Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, instruction, statement, certificate, request, waiver, consent, opinion, report, receipt or other paper or document, provided, however, that if the form thereof is specifically prescribed by the terms of this Agreement, the Custodian shall examine the same to determine whether it substantially conforms on its face to the requirements set forth herein.
(e) Neither the Custodian nor any of its directors, officers or employees shall be liable to anyone for any error of judgment, or for any act done or step taken or omitted to be taken by it (or any of its directors, officers of employees), or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, unless such action constitutes gross negligence, willful misconduct or bad faith of the Custodian.
(f) The Custodian shall not be liable for any action taken by it in good faith and reasonably believed by it to be within powers conferred upon it, or taken by it pursuant to any direction or instruction received by it in accordance with this Agreement, or omitted to be taken by it by reason of the lack of direction or instruction required hereby for such action.
(g) The Custodian may consult with, and shall have no responsibility for determining obtain advice from, legal counsel selected in good faith, with respect to any question as to any of the accuracy thereofprovisions hereof or its duties hereunder, and (v) may consult counsel satisfactory to it, including in-house counselor any matter relating hereto, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered suffered, or omitted by it hereunder the Custodian in good faith and in accordance with the advice or opinion or advice of such counsel. The reasonable costs and expenses of such advice or opinion shall be reimbursed by Buyer Agent pursuant to Section 10 hereof.
(bh) No provision of this Agreement shall require the Custodian to expend or risk its own funds, take any action hereunder (or omit to take any action) or otherwise incur any financial liability in the performance of its duties under this Agreement if it shall have grounds for believing that repayment of such funds or indemnity satisfactory is not assured to it.
(i) The Custodian may act or exercise its duties or powers hereunder through agents or attorneys, and the Custodian shall not be liable or responsible for the actions or omissions of any such agent or attorney appointed and maintained with due care.
(j) If the Custodian shall request instructions from the Buyer Agent with respect to anyone any act, action or failure to act in connection with this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Buyer Agent without incurring any liability therefor to the Buyer Agent, or any other Person.
(k) In no event shall the Custodian or its directors, affiliates, officers, agents and employees be held liable for any lost profits or exemplary, punitive, special, indirect or consequential damages of any kind resulting from any action taken or omitted to be taken by it or them hereunder except or in the case connection herewith even if advised of the Custodian's negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood possibility of such loss or damage and regardless of the form of actiondamages.
(cl) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for deemed to have notice of any fact, claim or demand with respect hereto unless actually known by a Responsible Officer of the use Custodian or application unless received (and then only to the extent received) in writing by the Custodian in accordance with Section 13 herein and specifically referencing this Agreement. Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of and shall not be bound by any of the Issuers terms and conditions of any other document or agreement unless the Custodian is a signatory party to that document or agreement.
(m) The Custodian shall not be responsible for the preparation or filing of any reports or returns relating to federal, state or local income taxes with respect to this Agreement, other than in respect of the Custodian’s compensation or for reimbursement of expenses; shall be under no obligation to verify the authenticity of any signature on any of the documents received or examined by it in connection with this Agreement or the Purchaser authority or capacity of any Securities person to execute or issue such document, except as provided in Section 8 of this Agreement with respect to Authorized Representatives; shall have no duty to ascertain whether or not any cash amount or payment has been received by the proceeds Buyer Agent or any third person and shall not be required to perform any cash movement functions in relation to this Agreement; and shall not be required to value or produce a report detailing the value of the Option Files.
(n) Nothing in this Agreement shall be deemed to impose on the Custodian any Securitiesduty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Option File is or may be held by the Custodian from time to time hereunder, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties hereunder. The provisions of this Section 14 shall survive the termination of this Agreement and the resignation or removal of the Custodian.
Appears in 1 contract
Samples: Custodial Agreement (GlassBridge Enterprises, Inc.)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that the Custodian (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation any Issuer's ’s Declaration or Indenture relating to such Issuer's ’s Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Custodian shall not be liable to anyone for any action taken or omitted to be taken by it hereunder except in the case of the Custodian's ’s negligence or willful misconduct in breach of the terms of this Agreement. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Capstead Mortgage Corporation/Placement Agreement Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's ’s own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for the use or application by any of the Issuers or the Purchaser of any Securities or the proceeds of any Securities.
Appears in 1 contract
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that the The Custodian (i) shall not be responsible in any way for the collection of contributions provided for under the Plan; the purpose or propriety of any distribution or withdrawal made pursuant to Section 5 hereof; any other action or nonaction taken pursuant to the request of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities)Employer, the Plan Administrator, or for determining a Participant; the validity or compelling compliance therewitheffect of the Plan or Custodial Agreement; the qualification of the Plan or this Agreement under the Code or ERISA: or examination of the Plan. The Employer and the legal representative or successor of the Employer, as appropriate, and (with respect to directions from the Participant) the Participant and his legal representative, shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly at all times fully indemnify and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of save harmless the Custodian, (iii) its successors and assigns, from any liability arising from distributions so made or actions so taken, and from any and all other liability whatsoever which may arise in connection with this Agreement, except liability arising from the negligence or willful misconduct of the indemnified person. The Custodian shall not be obligated he under any duty to take any legal action other than as herein specified with respect to the Custodial Account unless the Employer, Plan Administrator, or other action hereunder which might Participant (whichever is appropriate) shall furnish the Custodian with instructions in its judgment involve or cause it to incur any expense or liability unless it proper form and such instructions shall have been furnished specifically agreed to by the Custodian in writing, or to defend or engage in any suit with acceptable indemnification, (iv) respect to the Custodial Account unless the Custodian shall have first agreed in writing to do so and shall have been fully indemnified to its satisfaction. The Custodian may conclusively rely on upon and shall be protected in acting or refraining from acting upon any written order from the Employer, the Plan Administrator or a Participant, or any other notice, instructionrequest, instrumentconsent, statement, certificate, request certificate of other instrument or other document furnished to it hereunder and paper believed by it to be genuine and to have been signed properly executed, or presented by the proper personupon any opinion of counsel and, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by so long as it hereunder acts in good faith and faith, in accordance with the opinion taking or advice of such counsel.
(b) omitting to take any action. The Custodian shall not be liable to anyone for interest on any action taken or omitted to be taken by it hereunder except cash balances maintained in the case of Custodial Account in accordance with the Custodian's negligence or willful misconduct in breach of the terms provisions of this Custodial Agreement. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable for obligated to receive a contribution, instruction or request from a Participant unless the use same is forwarded by the Employer or application by any Plan Administrator, but it may do no in its discretion. The Employer and the executor, administrator or successors of the Issuers or Employer, shall have the Purchaser sole authority to enforce this agreement on behalf of any Securities and all persons having or claiming any interest in the proceeds Custodial Account. In order to save the Custodial Account from the expenses which might otherwise be incurred, it is imposed as a condition to the acquisition of any Securitiesinterest in the Custodial Account, and it is hereby agreed, that no person other than the Employer and such other persons as appropriate, may institute or maintain any action or proceeding against the Custodian in the absence of written authority from the Employer or a determination of a court of competent jurisdiction that, in refusing such authority, the Employer or such other persons have acted fraudulently or in bad faith.
Appears in 1 contract
Samples: Self Employed Retirement Plan (Freedom Mutual Fund)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that The acceptance by the Custodian of its appointment hereunder is expressly subject to the following terms, which shall govern and apply to each of the terms and provisions of this Section 14 (whether or not so stated therein or herein):
(i) The Custodian shall not be responsible have no duties, obligations or responsibilities under this Section 14 or with respect to the Required Loan Documents except for any of the agreements referred to such duties, obligations or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties responsibilities as are expressly and specifically set forth in this Agreement Section 14 as duties obligations or responsibilities on its part to be performed, each and the duties obligations and responsibilities of which are ministerial (and the Custodian shall not be construed to be fiduciary) in naturedetermined solely by the express provisions of this Section 14. No implied duties, and no implied duties obligations or obligations of any kind responsibilities shall be read into this Agreement against against, or on the part of, the Custodian. Any permissive right of the CustodianCustodian to take any action hereunder shall not be construed as a duty.
(ii) The Custodian makes no representations as to and shall not be responsible for or required to verify (x) the validity, legality, enforceability, due authorization, effectiveness, recordability, insurability, sufficiency, value, form, substance, or genuineness of any of the documents contained in any Required Loan Document or (y) the collectability, validity, transferability, insurability, value, effectiveness, perfection, priority or suitability of any Required Loan Document or any document contained therein.
(iii) The Custodian shall have no responsibilities or duties with respect to any Required Loan Document while such Required Loan Document is not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, possession.
(iv) The Custodian may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request request, waiver, consent, opinion, report, receipt or other paper or document furnished to it hereunder in accordance with this Section 14, not only as to its due execution and believed by validity, but also as to the truth and accuracy of any information therein contained, which it in good faith believes to be genuine and to have been signed or presented by the proper personperson (which in the case of any instruction from or on behalf of the Borrower shall be an Authorized Person). The Custodian shall be entitled to reasonably presume the genuineness and due authority of any signature appearing thereon. The Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, and instruction, statement, certificate, request, waiver, consent, opinion, report, receipt or other paper or document, provided, however, that if the form thereof is specifically prescribed by the terms of this Section 14, the Custodian shall have no responsibility for determining examine the accuracy thereof, and same to determine whether it substantially conforms on its face to the requirements set forth herein.
(v) Neither the Custodian nor any of its directors, officers or employees shall be liable to anyone for any error of judgment, or for any act done or step taken or omitted to be taken by it (or any of its directors, officers of employees), or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, unless such action constitutes gross negligence or willful misconduct of the Custodian.
(vi) The Custodian shall not be liable for any action taken by it in good faith and reasonably believed by it to be within powers conferred upon it, or taken by it pursuant to any direction or instruction received by it in accordance with this Section 14, -144- USActive 57310676.6USActive 60324964.3 or omitted to be taken by it by reason of the lack of direction or instruction required hereby for such action.
(vii) The Custodian may consult with, and obtain advice from, legal counsel satisfactory selected in good faith, with respect to itany question as to any of the provisions hereof or its duties hereunder, including in-house counselor any matter relating hereto, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered suffered, or omitted by it hereunder the Custodian in good faith and in accordance with the advice or opinion or advice of such counsel. The reasonable costs and expenses of such advice or opinion shall be reimbursed by the Borrower pursuant to Section 12 hereof.
(bviii) No provision of this Agreement shall require the Custodian to expend or risk its own funds, take any action hereunder (or omit to take any action) or otherwise incur any financial liability in the performance of its duties under this Section 14 if it shall have grounds for believing that repayment of such funds or indemnity satisfactory is not assured to it.
(ix) The Custodian may act or exercise its duties or powers hereunder through agents or attorneys, and the Custodian shall not be liable or responsible for the actions or omissions of any such agent or attorney appointed and maintained with due care.
(x) If the Custodian shall request instructions from the Borrower with respect to anyone any act, action or failure to act in connection with this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Borrower without incurring any liability therefor to the Borrower, or any other Person.
(xi) In no event shall the Custodian or its directors, affiliates, officers, agents and employees be held liable for any lost profits or exemplary, punitive, special, indirect or consequential damages of any kind resulting from any action taken or omitted to be taken by it or them hereunder except or in the case connection herewith even if advised of the Custodian's negligence possibility of such damages.
(xii) The Custodian shall not be deemed to have notice of any fact, claim or willful misconduct in breach demand with respect hereto unless a Responsible Officer of the Custodian has actual knowledge thereof or written notice thereof. Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of and shall not be bound by any of the terms and conditions of this Agreement. In no event shall any other document or agreement unless the Custodian be liable for indirect, punitive, special is a signatory party to that document or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of actionagreement.
(cxiii) Nothing in this Section 14 shall be deemed to impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (x) any jurisdiction where any Required Loan Document is or may be held by the Custodian from time to time hereunder, and (y) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties hereunder.
(xiv) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by only the Custodian than any such book-entry depository, securities intermediary or other subcustodian has duties and responsibilities with respect to the Custodianmatters set forth herein as is expressly set forth in writing herein and shall not be deemed to be an agent, except to the extent that such action bailee or omission of fiduciary for any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securitiesparty hereto. The Custodian shall be fully protected in acting or refraining from acting in good faith without investigation on any notice, instruction or request purportedly furnished to it USActive 57310676.6USActive 60324964.3 by the Borrower in accordance with the terms hereof, in which case the parties hereto agree that the Custodian has no duty to make any further inquiry whatsoever. It is hereby acknowledged and agreed that the Custodian has no knowledge of (and is not required to know) the terms and provisions of any loan agreements or any other related documentation to which the Lender may be accountable for a party or whether any actions by the, the use Borrower or application by any other person or entity are permitted or a breach thereunder or consistent or inconsistent therewith.
(xv) The provisions of this Section 14.3 shall survive the termination of this Agreement and the resignation or removal of the Issuers or Custodian.
(xvi) The Custodian hereby represents and warrants to the Purchaser Borrower that it is qualified to act as a custodian pursuant to Sections 17(f) and 26(a)(1) of any Securities or the proceeds of any Securities1940 Act.
Appears in 1 contract
Samples: Loan and Security Agreement (Nuveen Churchill Direct Lending Corp.)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that The acceptance by the Custodian of its appointment hereunder is expressly subject to the following terms, which shall govern and apply to each of the terms and provisions of this Section 14 (whether or not so stated therein or herein):
(i) The Custodian shall not be responsible have no duties, obligations or responsibilities under this Section 14 or with respect to the Required Loan Documents except for any of the agreements referred to such duties, obligations or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties responsibilities as are expressly and specifically set forth in this Agreement Section 14 as duties obligations or responsibilities on its part to be performed, each and the duties obligations and responsibilities of which are ministerial (and the Custodian shall not be construed to be fiduciary) in naturedetermined solely by the express provisions of this Section 14. No implied duties, and no implied duties obligations or obligations of any kind responsibilities shall be read into this Agreement against against, or on the part of, the Custodian. Any permissive right of the CustodianCustodian to take any action hereunder shall not be construed as a duty.
(ii) The Custodian makes no representations as to and shall not be responsible for or required to verify (x) the validity, legality, enforceability, due authorization, effectiveness, recordability, insurability, sufficiency, value, form, substance, or genuineness of any of the documents contained in any Required Loan Document or (y) the collectability, validity, transferability, insurability, value, effectiveness, perfection, priority or suitability of any Required Loan Document or any document contained therein.
(iii) The Custodian shall have no responsibilities or duties with respect to any Required Loan Document while such Required Loan Document is not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, possession.
(iv) The Custodian may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request request, waiver, consent, opinion, report, receipt or other paper or document furnished to it hereunder in accordance with this Section 14, not only as to its due execution and believed by validity, but also as to the truth and accuracy of any information therein contained, which it in good faith believes to be genuine and to have been signed or presented by the proper personperson (which in the case of any instruction from or on behalf of the Borrower shall be an Authorized Person). The Custodian shall be entitled to reasonably presume the genuineness and due authority of any signature appearing thereon. The Custodian shall not be bound to make any independent investigation into the facts or matters stated in any such notice, and instruction, statement, certificate, request, waiver, consent, opinion, report, receipt or other paper or document, provided, however, that if the form thereof is specifically prescribed by the terms of this Section 14, the Custodian shall have no responsibility for determining examine the accuracy thereof, and same to determine whether it substantially conforms on its face to the requirements set forth herein.
(v) Neither the Custodian nor any of its directors, officers or employees shall be liable to anyone for any error of judgment, or for any act done or step taken or omitted to be taken by it (or any of its directors, officers of employees), or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, unless such action constitutes gross negligence or willful misconduct of the Custodian.
(vi) The Custodian shall not be liable for any action taken by it in good faith and reasonably believed by it to be within powers conferred upon it, or taken by it pursuant to any direction or instruction received by it in accordance with this Section 14, or omitted to be taken by it by reason of the lack of direction or instruction required hereby for such action.
(vii) The Custodian may consult with, and obtain advice from, legal counsel satisfactory selected in good faith, with respect to itany question as to any of the provisions hereof or its duties hereunder, including in-house counselor any matter relating hereto, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered suffered, or omitted by it hereunder the Custodian in good faith and in accordance with the advice or opinion or advice of such counsel. The reasonable costs and expenses of such advice or opinion shall be reimbursed by the Borrower pursuant to Section 12 hereof.
(bviii) No provision of this Agreement shall require the Custodian to expend or risk its own funds, take any action hereunder (or omit to take any action) or otherwise incur any financial liability in the performance of its duties under this Section 14 if it shall have grounds for believing that repayment of such funds or indemnity satisfactory is not assured to it.
(ix) The Custodian may act or exercise its duties or powers hereunder through agents or attorneys, and the Custodian shall not be liable or responsible for the actions or omissions of any such agent or attorney appointed and maintained with due care.
(x) If the Custodian shall request instructions from the Borrower with respect to anyone any act, action or failure to act in connection with this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Borrower without incurring any liability therefor to the Borrower, or any other Person.
(xi) In no event shall the Custodian or its directors, affiliates, officers, agents and employees be held liable for any lost profits or exemplary, punitive, special, indirect or consequential damages of any kind resulting from any action taken or omitted to be taken by it or them hereunder except or in the case connection herewith even if advised of the Custodian's negligence possibility of such damages.
(xii) The Custodian shall not be deemed to have notice of any fact, claim or willful misconduct in breach demand with respect hereto unless a Responsible Officer of the Custodian has actual knowledge thereof or written notice thereof. Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of and shall not be bound by any of the terms and conditions of this Agreement. In no event shall any other document or agreement unless the Custodian be liable for indirect, punitive, special is a signatory party to that document or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of actionagreement.
(cxiii) Nothing in this Section 14 shall be deemed to impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (x) any jurisdiction where any Required Loan Document is or may be held by the Custodian from time to time hereunder, and (y) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties hereunder.
(xiv) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by only the Custodian than any such book-entry depository, securities intermediary or other subcustodian has duties and responsibilities with respect to the Custodianmatters set forth herein as is expressly set forth in writing herein and shall not be deemed to be an agent, except to the extent that such action bailee or omission of fiduciary for any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securitiesparty hereto. The Custodian shall be fully protected in acting or refraining from acting in good faith without investigation on any notice, instruction or request purportedly furnished to it by the Borrower in accordance with the terms hereof, in which case the parties hereto agree that the Custodian has no duty to make any further inquiry whatsoever. It is hereby acknowledged and agreed that the Custodian has no knowledge of (and is not required to know) the terms and provisions of any loan agreements or any other related documentation to which the Lender may be accountable for a party or whether any actions by the, the use Borrower or application by any other person or entity are permitted or a breach thereunder or consistent or inconsistent therewith.
(xv) The provisions of this Section 14.3 shall survive the termination of this Agreement and the resignation or removal of the Issuers or Custodian.
(xvi) The Custodian hereby represents and warrants to the Purchaser Borrower that it is qualified to act as a custodian pursuant to Sections 17(f) and 26(a)(1) of any Securities or the proceeds of any Securities1940 Act.
Appears in 1 contract
Samples: Loan and Security Agreement (Nuveen Churchill BDC INC.)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that the The Custodian (i) shall not be responsible for any of the agreements referred to have no duties or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and responsibilities except those specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and herein. The Custodian shall have no responsibility for determining nor duty with respect to any Mortgage Files while not in its possession. If the accuracy thereofCustodian requests instructions from the Buyer with respect to any act, and (v) may consult counsel satisfactory action or failure to itact in connection with this Agreement, including in-house counsel, and the opinion or advice of such counsel in any instance Custodian shall be full entitled to refrain from taking such action and complete authorization continue to refrain from acting unless and protection in until the Custodian shall have received Written Instructions from the Buyer with respect of to a Mortgage File without incurring any action takenliability therefore to the Buyer, suffered the Sellers or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counselany other Person.
(b) The Without limiting the generality of the foregoing, the Custodian may rely upon and shall not be fully protected in acting in good faith upon any Written Instructions, certificate, resolution, statement, instrument, opinion, report, request, consent, order, approval, notice or other communication from the Buyer, any Registered Holder or the Sellers received by it and which it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties hereunder.
(c) Neither the Custodian, nor its officers, directors, employees or agents shall be liable to anyone for the Sellers, the Buyer, or any other Person with respect to any action taken or omitted to be not taken by it hereunder except in good faith in the case performance of its obligations hereunder or in connection herewith. The obligations of the Custodian shall be determined solely by the express provisions of this Agreement. No representation, warranty, covenant, agreement, obligation or duty of the Custodian shall be implied with respect to this Agreement or the Custodian's negligence or willful misconduct in breach of the terms of this Agreementservices hereunder. In no event shall the Custodian be liable for indirect, punitive, special have any responsibility to ascertain or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on account of any take action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreementas expressly provided herein.
(d) The recitals contained herein Unless expressly provided herein, the Custodian shall be taken as under no duty or obligation to inspect, review or examine the statements of each of Mortgage Files to determine that the Issuers and the Purchasercontents thereof are genuine, and the Custodian assumes no responsibility enforceable or appropriate for the correctness of represented purpose or that they have been actually recorded, are in the same. The Custodian makes no representations as proper form for recordation or, unless expressly provided herein, that they are not other than what they purport to the validity or sufficiency be on their face.
(e) No provision of this Agreement shall require the Custodian to expend or risk its own funds or otherwise incur financial liability (other than expenses or liabilities otherwise required to be incurred by the Securities. terms of this Agreement) in the performance of its duties under this Agreement if it shall have a good faith belief that repayment of such funds or indemnity reasonably satisfactory to it is not reasonably assured to it.
(f) The Custodian shall use the same degree of care and skill as is reasonably expected of financial institutions acting as custodian of mortgage loans which are held to a standard of care of ordinary negligence, and this Section 21 shall not be accountable for interpreted to impose upon the use or application by any Custodian a higher standard of care than that set forth in this sentence.
(g) In order to comply with its duties under the Issuers or U.S.
A. Patriot Act, the Purchaser of any Securities or Custodian shall obtain and verify certain information and documentation from the proceeds of any Securitiesother parties hereto, including, but not limited to, such party's name, address, and other identifying information.
Appears in 1 contract
Samples: Custodial Agreement (American Home Mortgage Investment Corp)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that the The Custodian (i) shall not be responsible for any of the agreements referred to have no duties or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and responsibilities except those specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and herein. The Custodian shall have no responsibility for determining nor duty with respect to any Mortgage Files while not in its possession. If the accuracy thereofCustodian requests instructions from the Buyer with respect to any act, and (v) may consult counsel satisfactory action or failure to itact in connection with this Agreement, including in-house counsel, and the opinion or advice of such counsel in any instance Custodian shall be full entitled to refrain from taking such action and complete authorization continue to refrain from acting unless and protection in until the Custodian shall have received Written Instructions from the Buyer with respect of to a Mortgage File without incurring any action takenliability therefore to the Buyer, suffered any Seller or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counselany other Person.
(b) The Custodian shall not be liable to anyone for any action taken or omitted omission to be taken by it act hereunder except in the case of the Custodian's for its own negligence or lack of good faith or willful misconduct in breach of the terms of this Agreementmisconduct. In no event shall the Custodian be liable for indirect, punitive, special have any responsibility to ascertain or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of actiontake action except as expressly provided herein.
(c) The Without limiting the generality of the foregoing, the Custodian may conclusively rely upon and shall have no more or less responsibility or liability on account of be fully protected in acting in good faith upon any action or omission of any book-entry depositoryWritten Instructions, securities intermediary notice or other subcustodian employed communication from the Buyer or Sellers received by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has it and which it reasonably believes to the Custodian, except be genuine and duly authorized with respect to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of all matters pertaining to this AgreementAgreement and its duties hereunder.
(d) The recitals contained herein Custodian shall not be liable to the Sellers, the Buyer, or any other Person with respect to any action taken or not taken by it in good faith in the performance of its obligations under this Agreement. The obligations of the Custodian shall be taken as determined solely by the statements express provisions of each this Agreement. No representation, warranty, covenant, agreement, obligation or duty of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as shall be implied with respect to the validity or sufficiency of this Agreement or the Securities. Custodian’s services hereunder.
(e) The Custodian shall be under no duty or obligation to inspect, review or examine the Mortgage Files to determine that the contents thereof are genuine, enforceable or appropriate for the represented purpose or that they have been actually recorded, are in the proper form for recordation or that they are not other than what they purport to be on their face.
(f) No provision of this Agreement shall require the Custodian to expend or risk its own funds or otherwise incur financial liability (other than expenses or liabilities otherwise required to be incurred by the terms of this Agreement) in the performance of its duties under this Agreement if it shall have a good faith belief that repayment of such funds or indemnity satisfactory to it is not reasonably assured to it.
(g) The Custodian shall use the same degree of care and skill as is reasonably expected of financial institutions acting in comparable capacities which are held to a standard of care of ordinary negligence, and this Section 20 shall not be accountable for interpreted to impose upon the use or application by any Custodian a higher standard of the Issuers or the Purchaser of any Securities or the proceeds of any Securitiescare than that set forth in this sentence.
Appears in 1 contract
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that the A. The Custodian (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only paid as compensation for the performance of such duties as are expressly and specifically set forth in its services pursuant to this Agreement on its part such compensation as may from time to time be performed, each of which are ministerial (and shall not be construed to be fiduciary) agreed upon in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on writing between the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counseltwo parties.
(b) B. The Custodian shall not be liable to anyone for any action taken in good faith upon any officers' certificate as herein defined or omitted to be taken by it hereunder except in the case certified copy of any resolution of the Custodian's Trustees or of the Executive Committee, and may rely on the genuineness of any such document which it may in good faith believe to have been validly executed.
C. The Custodian shall not be liable for any loss or damage, resulting from its action or omission to act or otherwise, except for any such loss or damage arising out of its own negligence or willful misconduct and except that the Custodian shall be responsible for the acts of any sub-custodian or agent appointed hereunder. The Custodian may apply for and obtain the advice and opinion of counsel to the Trust or of its own counsel with respect to questions of law, and shall be fully protected with respect to anything done or omitted by it in breach good faith, in conformity with such advice or opinion.
D. Without limiting the generality of the terms of this Agreement. In no event shall foregoing, the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for indirect, punitive, special or consequential damage or loss for:
(including but not limited to lost profitsa) whatsoever, even if the Custodian has been informed The validity of the likelihood issue of such loss any securities purchased by or damage and regardless for the Trust, the legality of the form purchase thereof, or the propriety of action.the amount paid therefor;
(b) The legality of the issue or sale of any securities by or for the Trust, or the propriety of the amount for which the same are sold;
(c) The Custodian shall have no more legality of the issue or less responsibility or liability on account sale of any action shares of the Trust, or omission the sufficiency of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has amount to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.be received therefor;
(d) The recitals contained herein shall be taken as the statements of each legality of the Issuers and redemption of any shares of the PurchaserTrust, and or the Custodian assumes no responsibility propriety of the amount to be paid therefor;
(e) The legality of the declaration of any dividend or distribution by the Trust, or the legality of the issue of any shares of the Trust in payment of any dividend or distribution in shares;
(f) The legality of the delivery of any securities held for the correctness Trust for the purpose of collateralizing the obligation of the same. Trust to repay any moneys borrowed by the Trust; or
(g) The Custodian makes no representations as legality of the delivery of any securities held for the Trust for the purpose of loaning said securities to the validity any person, firm or sufficiency of this Agreement or the Securities. corporation.
E. The Custodian shall not be accountable 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 signed in the name of the Trust by one of its executive officers, and (ii) it shall be assured to its satisfaction of reimbursement of its costs and expenses in connection with any such action.
F. The Custodian shall not be under any [ILLEGIBLE] obligation to ascertain whether any securities at any time delivered to or held by it for the use or application by any account of the Issuers Trust, are such as may properly be held by the Trust under the provisions of its Declaration of Trust.
G. The Trust agrees to indemnify and hold harmless the Custodian and its nominee from all taxes, charges, expenses, assessments, claims, liabilities, and losses (including counsel fees) incurred or assessed against it or its nominee in connection with the Purchaser performance of this Agreement, except such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. The Custodian is authorized to charge any account of the Trust for such items. In the event of any Securities advance of funds for any purpose made by the Custodian resulting from orders or instructions of the proceeds Trust, or in the event that the Custodian or its nominee shall incur or be assessed any taxes, charges, expenses, assessments, claims or liabilities in connection with the performance this Agreement, except such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of any Securitiesthe Trust shall be security therefor.
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Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that the Custodian (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) The Custodian may conclusively rely on and shall be fully protected in acting or refraining from acting upon any written notice, instructioncertificate, instrument, statementopinion, certificatenotice, request letter, telegram or other document furnished delivered to it hereunder and believed by which in good faith it reasonably believes to be genuine and to have which has been signed or presented by the proper person, party or parties. The Custodian may rely conclusively on and shall have no responsibility for determining be fully protected by in acting upon (A) the accuracy thereof, and written instructions of any designated officer of the Deal Agent or (vB) the verbal instructions of any designated officer of the Deal Agent.
(ii) The Custodian may consult counsel satisfactory to it, including in-house counsel, it and the advice or opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice or opinion or advice of such counsel.
(biii) The Custodian shall not be liable to anyone for any action error of judgment, or for any act done or step taken or omitted to be taken by it, in good faith, or for any mistakes of fact or law, or for anything which it hereunder may do or refrain from doing in connection herewith except in the case of the Custodian's negligence or its willful misconduct in breach of the terms of this Agreement. In no event shall the Custodian be liable for indirect, punitive, special or consequential damage grossly negligent performance or loss (including but not limited to lost profits) whatsoever, even if the Custodian has been informed of the likelihood of such loss or damage and regardless of the form of actionomission.
(civ) The Custodian makes no warranty or representation and shall have no responsibility (except as expressly set forth in this Agreement) as to the content, enforceability, completeness, validity, sufficiency, value, genuineness, ownership or transferability of the Loans or the Loan Documents, and will not be required to and will not make any representations as to the validity or value of any of the Loans. The Custodian shall not be obligated to take any legal action hereunder which might in its judgment involve any expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it.
(v) The Custodian shall have no more duties or less responsibility responsibilities except such duties and responsibilities as are specifically set forth in this Agreement and no covenants or liability on account of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to obligations shall be implied in this Agreement against the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.
(dvi) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall not be accountable required to expend or risk its own funds in the performance of its duties hereunder.
(vii) It is expressly agreed and acknowledged that the Custodian is not guaranteeing performance of or assuming any liability for the use or application by any obligations of the Issuers other parties hereto or any parties to the Purchaser of any Securities or the proceeds of any SecuritiesLoans.
Appears in 1 contract
Samples: Loan Funding and Servicing Agreement (Healthcare Financial Partners Inc)
Concerning the Custodian. (a) Each Interested Party acknowledges and agrees that 1. Except as hereinafter provided, or as provided in Article XVI neither the Custodian (i) nor its nominee shall not be responsible liable for any of the agreements referred to loss or described herein (including without limitation any Issuer's Declaration or Indenture relating to such Issuer's Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to itdamage, including in-house counselcounsel fees, and the opinion resulting from its action or advice of such counsel in omission to act or otherwise, either hereunder or under any instance shall be full and complete authorization and protection in respect of any action takenMargin Account Agreement, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Custodian shall not be liable to anyone except for any action taken such loss or omitted to be taken by it hereunder except in the case damage arising out of the Custodian's its own negligence or willful misconduct in breach of the terms of this Agreementmisconduct. In no event shall the Custodian be liable to the Fund or any third party for indirectspecial, punitive, special indirect or consequential damage damages or lost profits or loss (including but not limited to lost profits) whatsoeverof business, arising under or in connection with this Agreement, even if the Custodian has been previously informed of the likelihood possibility of such loss or damage damages and regardless of the form of action. The Custodian may, with respect to questions of law arising hereunder or under any Margin Account Agreement, apply for and obtain the advice and opinion of counsel to the Fund or of its own counsel, at the expense of the Fund, and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice or opinion. The Custodian shall be liable to the Fund for any loss or damage resulting from the use of the Book-Entry System or any Depository arising by reason of any negligence or willful misconduct on the part of l:he Custodian or any of its employees or agents.
2. Without limiting the generality of the foregoing, the Custodian shall be under no obligation to inquire into, and shall not be liable for:
(a) 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;
(b) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor;
(c) The Custodian shall have no more legality of the declaration or less responsibility or liability on account payment of any action or omission of any book-entry depository, securities intermediary or other subcustodian employed dividend by the Custodian than any such book-entry depository, securities intermediary or other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian's own negligence, bad faith or willful misconduct in breach of this Agreement.Fund;
(d) The recitals contained herein legality of any borrowing by the Fund using Securities as collateral;
(e) The legality of any loan of portfolio Securities, nor shall the Custodian be taken under any duty or obligation to see to it that any cash collateral delivered to it by a broker, dealer, or financial institution or held by it at any time as the statements a result of each such loan of portfolio Securities of the Issuers and the Purchaser, and the Custodian assumes no responsibility Fund is adequate collateral for the correctness Fund against any loss it might sustain as a result of the samesuch loan. The Custodian makes specifically, but not by way of limitation, shall not be under any duty or obligation periodically to check or notify the Fund that the amount of such cash collateral held by it for the Fund is sufficient collateral for the Fund, but such duty or obligation shall be the sole responsibility of the Fund. In addition, the Custodian shall be under no representations as duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the validity or sufficiency Fund are lent pursuant to Article XIV of this Agreement makes payment to it of any dividends or interest which are payable to or for the Securitiesaccount of the Fund during the period of such loan or at the termination of such loan, provided, however, that the Custodian shall promptly notify the Fund in the event that such dividends or interest are not paid and received when due; or
(f) The sufficiency or value of any amounts of money and/or Securities held in any Margin Account, Senior Security Account or Collateral Account in connection with transactions by the Fund. In addition, the Custodian shall be under no duty or obligation to see that 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, to see that any payment received by the 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 the Custodian's receipt or non-receipt of any such payment.
3. The Custodian shall not be accountable liable for, or considered to be the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the use payment of money, received by it on behalf of the Fund until the Custodian actually receives and collects such money directly or application by the final crediting of the account representing the Fund's interest at the Book-Entry System or the Depository.
4. The Custodian shall have no responsibility and shall not be liable for ascertaining or acting upon any calls, conversions, exchange offers, tenders, interest rate changes or similar matters relating to Securities held in the Depository, unless the Custodian shall have actually received timely notice from the Depository. In no event shall the Custodian have any responsibility or liability for the failure of the Depository to collect, or for the late collection or late crediting by the Depository of any amount payable upon Securities deposited in the Depository which may mature or be redeemed, retired, called or otherwise become payable. However, upon receipt of a Certificate from the Fund of an overdue amount on Securities held in the Depository the Custodian shall make a claim against the Depository on behalf of the Fund, except that the 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 the 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.
5. The Custodian shall not be under any duty or obligation to take action to effect collection of any amount due to the Fund from the Transfer Agent of the Fund nor to take any action to effect payment or distribution by the Transfer Agent of the Fund of any amount paid by the Custodian to the Transfer Agent of the Fund in accordance with this Agreement.
6. The 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 a Certificate and (ii) it shall be assured to its satisfaction of reimbursement of its costs and expenses in connection with any such action.
7. The Custodian may in addition to the employment of Foreign Sub-Custodians pursuant to Article XVI appoint one or more banking institutions as Depository or Depositories, as Sub- Custodian or Sub-Custodians, or as Co-Custodian or 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 a Certificate or contained in an agreement executed by the Custodian, the Fund and the appointed institution.
8. The Custodian shall not be under any duty or obligation (a) to ascertain whether any Securities at any time delivered to, or held by it or by any Foreign Sub-Custodian, for the account of the Issuers Fund and specifically allocated to a Series are such as properly may be held by the Fund or such Series under the Purchaser provisions of its then current prospectus, or (b) to ascertain whether any transactions by the Fund, whether or not involving the Custodian, are such transactions as may properly be engaged in by the Fund.
9. The Custodian shall be entitled to receive and the Fund agrees to pay to the Custodian all out-of-pocket expenses and such compensation as may be agreed upon from time to time between the custodian and the Fund. The Custodian may charge such compensation and any expenses with respect to a Series incurred by the Custodian in the performance of its duties pursuant to such agreement against any money specifically allocated to such Series. Unless and until the Fund instructs the Custodian by a Certificate to apportion any loss, damage, liability or expense among the Series in a specified manner, the Custodian shall also be entitled to charge against any money held by it for the account of a Series such Series' pro rata share (based on such Series net asset value at the time of the charge to the aggregate net asset value of all Series at that time) of the amount of any loss, damage, liability or expense, including counsel fees, for which it shall be entitled to reimbursement under the provisions of this Agreement. The expenses for which the Custodian shall be entitled to reimbursement hereunder shall include, but are not limited to, the expenses of sub-custodians and foreign branches of the Custodian incurred in settling outside of New York City transactions involving the purchase and sale of Securities of the Fund.
10. The Custodian shall be entitled to rely upon any Certificate, notice or other instrument in writing received by the proceeds Custodian and reasonably believed by the Custodian to be a Certificate. The Custodian shall be entitled to rely upon any Oral Instructions actually received by the Custodian hereinabove provided for. The Fund agrees to forward to the Custodian a Certificate or facsimile thereof confirming such Oral Instructions in such manner so that such Certificate or facsimile thereof is received by the 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 the Custodian. The Fund agrees that the fact that such confirming instructions are not received by the Custodian shall in no way affect the validity of the transactions or enforceability of the transactions hereby authorized by the Fund. The Fund agrees that the Custodian shall incur no liability to the Fund in acting upon Oral Instructions given to the Custodian hereunder concerning such transactions provided such instructions reasonably appear to have been received from an Officer.
11. The Custodian shall be entitled to rely upon any instrument, instruction or notice received by the Custodian and reasonably believed by the Custodian to be given in accordance with the terms and conditions of any SecuritiesMargin Account Agreement. Without limiting the generality of the foregoing, the Custodian shall be under no duty to inquire into, and shall not be liable for, the accuracy of any statements or representations contained in any such instrument or other notice including, without limitation, any specification of any amount to be paid to a broker, dealer, futures commission merchant or Clearing Member.
12. The books and records pertaining to the Fund which are in the possession of the Custodian shall be the property of the Fund. Such books and records shall be prepared and maintained as required by the Investment Company Act of 1940, as amended, and other applicable securities laws and rules and
Appears in 1 contract
