Concerning the Custodian. A. The Custodian shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties. B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 logs or damage arising out ofits own negligence or willful misconduct. The Custodian may apply for and obtain the advice and opinion of counsel to the Corporation 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 good faith and in conformity with such advice or opinion. D. Without limiting the generality of the foregoing the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for: (a) The validity of the issue of any securities purchased by or for the Corporation, the legality of the purchase thereof, or the propriety of the amount paid therefore; (b) The legality of the issue or sale of any securities by or for the Corporation, or the propriety of the amount for which the same are sold; (c) The legality of the issue or sale of any shares of the capital stock of the Corporation, or the sufficiency of the amount to be received therefore; (d) The legality of the redemtion, of any shares. of capital stock of the Corporation or the propriety of the amount to be paid therefore; (e) The legality of the declaration of any dividend or distribution by the Corporattion, or the legality of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distribution; (f) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed by the Corporation or (g) The legality of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any person, firm or corporation. E. The Custodian shall not be under any duty or obligation to talke action to effective collection of any amount, if the securities upon which such consent is payable are in default, or if payment is refused after due on presentation, unless and until (i) it shall be derected to take such action by Written Instruction, and (ii) it shall, be assured to its satisfaction of rereimbursement 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 account of the Corporation, are such as may properly be held by the Corporation under the provisions of its Articles of Incorporation. G. The Corporation agrees to indemnify and hold harmless the Custodian and its nominee from all taxes, charges,assessments, claims and liabilities incurred or assessed against it or its nominee 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. The Custodian is authorized to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation shall be security therefore. H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Samples: Custodial Agreement (Merrill Lynch Balanced Fd for Inv & Ret)
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits 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 (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Fund on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral;
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 duty 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 Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Fund under the provisions of its the Articles of IncorporationIncorporation and the Fund's By Laws.
G. The Corporation 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 indemnify and hold harmless pay to the Custodian and its nominee from all taxessuch compensation as shall be determined pursuant to Appendix D attached hereto, charges,assessments, claims and liabilities incurred or assessed against it or its nominee in connection with the performance of this Agreement, except as shall be determined pursuant to amendments to such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. Appendix D. The Custodian is authorized shall be entitled to charge against any account of the Corporation for such items. In the event of any advance of funds for any purpose made money held by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held it for the account of the Corporation 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 security therefore.
H. In entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the event thatCustodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, pursuant to this Agreementwhether by hand delivery, facsimile or otherwise, on the Corporation instructs same business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to pay for securities on behalf receive such confirming instructions shall in no way affect the validity of the Corporationtransactions 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) 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 Fund under the Act, with particular attention to Section 31 thereof and Rules 3la-1 and 3la-2 thereunder and those records are the property of the Fund, and (ii) preserve for the periods prescribed by applicable Federal statute or regulation all records required to be so preserved. All such books and records shall be the property of the Fund, and shall be open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Corporation Custodian shall send to the Fund any report received on the systems of internal accounting control of the Custodian, or its agents or sub-custodians, as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no responsibility for the management, 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 performance of its duties as custodian shall not be deemed to be a recommendation to the Fund's depositors or others of shares of the Fund as an investment.
M. The Custodian shall take all reasonable action, that the Fund may from time to time request, to assist the Fund in obtaining favorable opinions from the Fund's independent accountants, with respect to the Custodian's activities hereunder, in connection with the preparation of the 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 its to the Custodian a security interest in such securitiesany Fund Assets to secure the payment of any liabilities of the Fund to the Custodian, until whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian has been reimbursed Custodian. This pledge is in addition to any other pledge of collateral by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged Fund to the Custodian for purposes of the requirements of the Uniforn Commercial CodeCustodian.
Appears in 1 contract
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits 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 (including reasonable attorneys' fees) 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 agent, 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Series, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationSeries, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Series, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionSeries;
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Series on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral;
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective effect collection of any amount due to the Series 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 Series Assets are held by its agents, the Custodian remains primarily liable for the safekeeping of the Series 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 Series. 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 directors 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 Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Series under the provisions of its the Articles of IncorporationIncorporation and the Fund's By-Laws.
G. The Corporation Custodian shall treat all records and other information relating to the Fund and the Series 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 pay to indemnify and hold harmless the Custodian and its nominee from all taxesthe assets of the Series such compensation as shall be determined pursuant to Appendix D attached hereto, charges,assessments, claims and liabilities incurred or assessed against it or its nominee in connection with the performance of this Agreement, except as shall be determined pursuant to amendments to such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. Appendix D. The Custodian is authorized shall be entitled to charge against any account of the Corporation for such items. In the event of any advance of funds for any purpose made money held by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held it for the account of the Corporation Series, the amount of any of its fees, any loss, damage, liability or expense, including counsel fees relating to such Series. The expenses which the Custodian may charge against the account of the Series 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 security therefore.
H. In entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the event thatCustodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, pursuant to this Agreementwhether by hand delivery, facsimile or otherwise, not later than the Corporation instructs following business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to pay for securities on behalf receive such confirming instructions shall in no way affect the validity of the Corporationtransactions or enforceability of the transactions hereby authorized by the Fund. The Fund agrees that the Custodian shall incur no greater liability to the Fund for acting upon Oral Instructions given to the Custodian hereunder concerning such transactions than would arise as to a similar transaction pursuant to a Written Instruction. J. The Custodian will (i) 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 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 regulation all records required to be so preserved. All suchbooks and records shall be the property of the Fund, and shall be open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Corporation Custodian shall send to the Fund any report received on the systems of internal accounting control of the Custodian, or its agents or sub-custodians, as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no responsibility for the management, 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 Series and performance of its duties as custodian shall not be deemed to be a recommendation to the Fund's depositors or others of shares of the Series as an investment.
M. The Custodian shall take all reasonable action, that the Fund may from time to time request, to assist the Fund in obtaining favorable opinions from the Fund's independent accountants, with respect to the Custodian's activities hereunder, in connection with the preparation of the 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 its to the Custodian a security interest in such securitiesany Series Assets to secure the payment of any liabilities of the Series to the Custodian, until whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian has been reimbursed Custodian. This pledge is in addition to any other pledge of collateral by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged Fund to the Custodian for purposes of the requirements of the Uniforn Commercial CodeCustodian.
Appears in 1 contract
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits 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 (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Fund on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral;
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement reimbursement of its costs and expenses in m 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 Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Fund under the provisions of its the Articles of IncorporationIncorporation and the Fund's By-Laws.
G. The Corporation 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 indemnify and hold harmless pay to the Custodian and its nominee from all taxessuch compensation as shall be determined pursuant to Appendix D attached hereto, charges,assessments, claims and liabilities incurred or assessed against it or its nominee in connection with the performance of this Agreement, except as shall be determined pursuant to amendments to such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. Appendix D. The Custodian is authorized shall be entitled to charge against any account of the Corporation for such items. In the event of any advance of funds for any purpose made money held by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held it for the account of the Corporation 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 security therefore.
H. In entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the event thatCustodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, pursuant to this Agreementwhether by hand delivery, facsimile or otherwise, on the Corporation instructs same business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to pay for securities on behalf receive such confirming instructions shall in no way affect the validity of the Corporationtransactions 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) 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 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 regulation all records required to be so preserved. All such books and records shall be the property of the Fund, and shall be open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Corporation Custodian shall send to the Fund any report received on the systems of internal accounting control of the Custodian, or its agents or sub-custodians, as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no responsibility for the management, 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 performance of its duties as custodian shall not be deemed to be a recommendation to the Fund's depositors or others of shares of the Fund as an investment.
M. The Custodian shall take all reasonable action, that the Fund may from time to time request, to assist the Fund in obtaining favorable opinions from the Fund's independent accountants, with respect to the Custodian's activities hereunder, in connection with the preparation of the Fund's Form N-IA, Form N-SAR, or other annual reports to the Securities and Exchange Commission.
N. The Fund hereby pledges to and grants its to the Custodian a security interest in such securitiesany Fund Assets to secure the payment of any liabilities of the Fund to the Custodian, until whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian has been reimbursed Custodian. This pledge is in addition to any other pledge of collateral by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged Fund to the Custodian for purposes of the requirements of the Uniforn Commercial CodeCustodian.
Appears in 1 contract
Samples: Custody Agreement (Rainbow Fund Inc)
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits 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 (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Series, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationSeries, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Series, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionSeries;
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Series on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral;
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective effect collection of any amount due to the Series 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 account of the Corporation, are such as may properly be held by the Corporation under the provisions of its Articles of Incorporation.
G. The Corporation agrees to indemnify and hold harmless the Custodian and its nominee from all taxes, charges,assessments, claims and liabilities incurred or assessed against it or its nominee 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. The Custodian is authorized to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation shall be security therefore.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits of its own gross negligence or willful misconduct. The Fund shall defend, indemnify, and hold harmless the Custodian and its Trustees, officers, employees and agents with respect to any loss, claim, liability or cost (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distribution;Fund,
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Fund on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral;
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 to 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 Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Fund under the provisions of its Articles the Declaration of IncorporationTrust and the Fund's By Laws.
G. The Corporation 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 indemnify and hold harmless pay to the Custodian and its nominee from all taxessuch compensation as shall be determined pursuant to Appendix D attached hereto, charges,assessments, claims and liabilities incurred or assessed against it or its nominee in connection with the performance of this Agreement, except as shall be determined pursuant to amendments to such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. Appendix D. The Custodian is authorized shall be entitled to charge against any account of the Corporation for such items. In the event of any advance of funds for any purpose made money held by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held it for the account of the Corporation 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 security therefore.
H. In entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the event thatCustodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, pursuant to this Agreementwhether by hand delivery, facsimile or otherwise, on the Corporation instructs same business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to pay for securities on behalf receive such confirming instructions shall in no way affect the validity of the Corporationtransactions 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) 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 Fund under the Act, with particular attention to Section 31 thereof and Rules 3 la-I and 3 Ia-2 thereunder and those records are the property of the Fund, and (ii) preserve for the periods prescribed by applicable Federal statute or regulation all records required to be so preserved. All such books and records shall be the property of the Fund, and shall be open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Corporation Custodian shall send to the Fund any report received on the systems of internal accounting control of the Custodian, or its agents or sub-custodians, as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no responsibility for the management, 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 performance of its duties as custodian shall not be deemed to be a recommendation to the Fund's depositors or others of shares of the Fund as an investment
M. The Custodian shall take all reasonable action, that the Fund may from time to time request, to assist the Fund in obtaining favorable opinions from the Fund's independent accountants, with respect to the Custodians activities hereunder, in connection with the preparation of the Fund's Form N-IA. Form N-SAR, or other annual reports to the Securities and Exchange Commission.
N. The Fund hereby pledges to and grants its to the Custodian a security interest in such securitiesany Fund Assets to secure the payment of any liabilities of the Fund to the Custodian, until whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian has been reimbursed Custodian. This pledge is in addition to any other pledge of collateral by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged Fund to the Custodian for purposes of the requirements of the Uniforn Commercial CodeCustodian.
Appears in 1 contract
Samples: Custody Agreement (Fenimore Asset Management Trust)
Concerning the Custodian. A. 1. The Custodian shall be paid use reasonable care in the performance of its duties hereunder, and, except as compensation for hereinafter provided, neither the Custodian nor its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian nominee shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 damage, including counsel fees, resulting from its action or omission to act or otherwise otherwise, either hereunder or under any Margin Account Agreement, except for any such logs loss or damage arising out ofits of its own negligence negligence, bad faith, or willful misconductmisconduct or that of its officers, employees, or agents. The Custodian may 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 Corporation Fund, at the expense of the Fund, or of its own counsel with respect to questions of lawcounsel, at its own expense, and shall be fully protected with respect to anything done or omitted by it in good faith and 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.
D. Without limiting 2. Notwithstanding the generality foregoing, the Custodian shall be under no obligation to inquire into, and shall not be li- able for:
(a) The validity (but not the authenticity) of the foregoing 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, as specified in a Certificate, Oral Instructions, or 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) 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 inquire intosee 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 for, or considered to be the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the payment of money, received by it on behalf of the Fund until the Custodian actually receives 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. With respect to Securities held in a Depository, except as otherwise provided in paragraph 5(b) of Article III hereof, the Custodian shall have no responsibility and shall not be liable for:
(a) The validity 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 the issue of any securities purchased by a Depository to collect, or for the Corporationlate collection or late crediting by a Depository of any amount payable upon Securities deposited in a 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 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 legality Fund shall be subrogated to the rights of the purchase thereofCustodian 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 the propriety of the amount paid therefore;
(b) The legality of the issue or sale of any securities by or for the Corporation, or the propriety of the amount for which the same are sold;
(c) The legality of the issue or sale of any shares of the capital stock of the Corporation, or the sufficiency of the amount to be received therefore;
(d) The legality of the redemtion, of any shares. of capital stock of the Corporation or the propriety of the amount to be paid therefore;
(e) The legality of the declaration of any dividend or distribution by the Corporattion, or the legality of the issuance of any shares of the Corporation's capital stock Written Instructions given in payment of any stock dividend or distribution;
(f) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed by the Corporation or
(g) The legality of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any person, firm or corporationaccordance with this Agreement.
E. 5. The Custodian shall not be under any duty or obligation to talke take action to effective effect collection of any amount, 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 Securities upon which such consent 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 on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction of rereimbursement 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 payment and such failure is the reason for the non-receipt of payment.
F. 7. The Custodian may appoint one or more banking institutions 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 agrees to indemnify the Fund against and save the Fund harmless from all liability, claims, losses and demands whatsoever, 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 pursuant to paragraph 7 of this Article.
9. The Custodian shall not be under any duty or obligation (a) to ascertain whether any securities Securities at any time delivered to, or 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 transactions by the Fund, whether or 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 such expenses with respect to a Series incurred by the Custodian in the performance of its duties under this Agreement against any money specifically allocated to such Series. The Custodian shall also be entitled to charge against any money held by it for the account of a Series the Corporationamount of any loss, are such as may properly damage, liability or expense, including counsel fees, for which it shall be held by the Corporation entitled to reimbursement under the provisions of this Agreement attributable to, or arising out of, its Articles 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 Incorporationsub-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. Notwithstanding the foregoing or anything else contained in this Agreement to the contrary, 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.
G. 11. or otherwise, by the close of business of the same day that such Oral Instructions or Written Instructions are given to the Custodian. The Corporation 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 and hold harmless the Custodian against and its nominee save the Custodian harmless from all taxesliability, charges,assessmentsclaims, claims losses and liabilities incurred demands whatsoever, including attorney's fees, howsoever arising out of, or assessed against it related to, the Custodian's performance of its obligations under this Agreement, except for any such liability, claim, loss and demand arising out of the Custodian's own negligence, bad faith, or willful misconduct or that of its nominee in connection with officers, employees, or agents.
17. Subject to the performance foregoing provisions of this Agreement, the Custodian shall deliver and receive Securities, and receipts with respect to such Securities, and shall make and receive payments only in accordance with the customs prevailing from time to time among brokers or dealers in such Securities and, except such as may arise from its otherwise be provided by this Agreement or its nominee's own negligent actionas may be in accordance with such customs, negligent failure to act or willful misconductshall make payment for Securities only against delivery thereof and deliveries of Securities only against payment therefor.
18. The Custodian is authorized to charge any account of the Corporation for shall have no duties or responsibilities whatsoever except such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or duties and responsibilities as are specifically set forth in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its and no covenant or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation obligation shall be security thereforeimplied in this Agreement against the Custodian.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Samples: Custody Agreement (Dean Witter Multi State Municipal Series Trust)
Concerning the Custodian. A. The Custodian shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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. 1. The Custodian shall not be liable for any loss or damage damage, resulting from its action or omission to act or otherwise otherwise, except for any such logs loss or damage arising out ofits of its own negligence or willful misconduct. The Custodian may apply for and obtain the advice and opinion of counsel to of the Corporation Fund or of its own counsel counsel, at the expense of the Fund, with respect to questions of law, and shall be fully protected with respect to anything done or omitted by it in good faith and faith, in conformity with such advice or opinion.
D. 2. Without limiting the generality of the foregoing foregoing, the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for:
(a) a. The validity of the issue of any investment securities purchased by or for the CorporationFund, the legality of the purchase thereof, or (except as provided in Article III) the propriety of the amount paid therefore;therefor.
(b) b. The legality of the issue or sale of any investment securities by or for the CorporationFund, or (except as provided in Article III) the propriety of the amount for which the same are sold;.
(c) c. The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or (except as provided in Article V) the sufficiency of the amount to be received therefore;therefor.
(d) d. The legality of the redemtion, redemption of any shares. shares of capital stock of the Corporation Fund, or (except as provided in Article V) the propriety of the amount to be paid therefore;therefor.
(e) e. The legality Legality of the declaration of any dividend or distribution by the CorporattionFund, or the legality of the issuance issue of any shares of the CorporationFund's capital stock in payment of any stock dividend dividend.
3. The Custodian shall not be liable for, or distribution;
(f) The legality considered to be the custodian of, any money represented by any check, draft, or other instrument for the payment of money received by it on behalf of the delivery of any securities held for Fund, until the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed by the Corporation or
(g) The legality of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any person, firm or corporationCustodian actually collects such money.
E. 4. The Custodian shall not be under any duty or obligation to talke take action to effective effect collection of any amount, if the securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i( i ) it shall be derected directed to take such action by Written Instructionwritten instructions signed in the name of the Fund by two officers, and (( ii) it shall, shall be assured to its satisfaction of rereimbursement reimbursement of its costs and expenses in connection with any such action.
F. 5. 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 Corporation, Fund are such as may properly be held by the Corporation Fund under the provisions of its Articles of Incorporation.
G. The Corporation 6. Initially the Custodian shall be entitled to receive for its custodial services, and the Fund agrees to indemnify pay to the Custodian for such services, such compensation and hold harmless reimbursement for expenses as are set forth in apendix No. 1 hereto. Thereafter the Custodian shall receive and the Fund shall pay for such services such compensation and reimbursement for expenses as may be agreed upon from time to time between the Custodian and its nominee from all taxes, charges,assessments, claims and liabilities incurred or assessed against it or its nominee 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 misconductFund. The Custodian is authorized to may charge such compensation and reimbursement for expenses against any account of the Corporation for such items. In the event of any advance of funds for any purpose made money held by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held it for the account of the Corporation shall be security thereforeFund upon rendering a statement therefor.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Concerning the Custodian. A. The 1. Except as hereinafter provided, neither the Custodian nor its nominee shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 damage, including counsel fees, resulting from its action or omission to act or otherwise otherwise, except for any such logs loss or damage arising out ofits of its own negligence or willful misconduct. The Custodian may may, with respect to questions of law, apply for and obtain the advice advise and opinion of counsel to the Corporation Trust or of its own counsel with respect to questions counsel, at the expense of lawthe Trust, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such advice or opinion. The Custodian shall be liable to the Trust for any loss or damage resulting from the use of the Book-Entry System or the Depository arising by reason of any negligence, misfeasance or misconduct on the part of the Custodian or any its employees or agents.
D. 2. Without limiting the generality of the foregoing foregoing, the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for:
(a) The validity of the issue of any securities Securities purchased by the Trust or for the Corporationany Sub-Trust, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b) The legality of the issue or sale of any securities Securities by the Trust or for the Corporationany Sub- Trust, or the propriety of the amount for which the same are sold;
(c) The legality of the issue or sale by the Trust or any Sub-Trust of any shares of the capital stock of the CorporationShares, or the sufficiency of the amount to be received thereforetherefor;
(d) The legality of the redemtion, redemption of any shares. of capital stock Shares of the Corporation Trust or any Sub- Trust, or the propriety of the amount to be paid thereforetherefor;
(e) The legality of the declaration or payment of any dividend or other distribution by the Corporattion, or the legality of the issuance Trust of any shares of the Corporation's capital stock in payment of any stock dividend or distributionSub-Trust;
(f) The legality of any loan of Securities of the delivery Trust or any Sub-Trust pursuant to Article VI 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 the Securities of any securities held Sub-Trust is adequate collateral for the Corporation Trust 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 to check periodically or notify the Trust that the amount of such cash collateral held by it in connection with any such loan for any Sub-Trust is sufficient collateral for such loan, but such duty or obligation shall be the sole responsibility of the Trust. In addition, the Custodian shall be under no duty or obligation to see to it that any broker, dealer or financial institution to which Securities are lent pursuant to Article VI of this Agreement makes payment to it of any dividends or interest which are payable to or for the purpose account of collateralizing the obligation for Trust during the Corporation to repay any moneys borrowed by period of such loan or at the Corporation termination of such loan; provided, however, that the Custodian shall promptly notify the Trust in the event that such dividends or interest are not paid and received when due; or
(g) The legality of any borrowing for temporary administrative purposes.
3. The Custodian shall not be liable for, or considered to be the delivery of Custodian of, any securities held money, whether or not represented by any check, draft, or other instrument for the Corporation for payment of money, received by it on behalf of the purpose Trust or any Sub-Trust until the Custodian actually receives and collects such money directly or by the final crediting of loaning said securities to any person, firm the account representing the Trust's interest in the Book-Entry System or corporationthe Depository.
E. 4. The Custodian shall not be under any duty or obligation to talke take action to effective effect collection of any amount due to the Trust or any Sub-Trust from the Transfer Agent for the Trust nor to take any action to effect payment or distribution by such Transfer Agent of any amount paid by the Custodian to such Transfer Agent 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (ia) it shall be derected directed to take such action by Written Instruction, a Certificate and (iib) it shall, shall be assured to its satisfaction of rereimbursement reimbursement of its costs and expenses in connection with any such action.
F. 6. The Custodian may appoint one or more banking institutions, including but not limited to banking institutions located in foreign countries, to act as Depository or Depositories or as Sub-Custodian or as Sub-Custodians of Securities and moneys at any time owned by the Trust or any Sub-Trust, upon terms and conditions specified in a Certificate.
7. The Custodian shall not be under any duty or obligation to ascertain whether any securities Securities at any time delivered to or held by it for the account of the Corporation, Trust and specifically allocated to a Sub-Trust are such as may properly be held by the Corporation Trust and Specifically allocated to such Sub-Trust under the provisions of its Articles the Declaration of IncorporationTrust.
G. 8. The Corporation Custodian shall be entitled to receive, and the Trust agrees to pay to the Custodian from the assets of the applicable Sub-Trust, such compensation as may be agreed upon from time to time between the Custodian and the Trust. The Custodian may charge against any moneys specifically allocated to a Sub-Trust such compensation and any expenses incurred by the Custodian in the performance of its duties pursuant to such agreement with respect to such Sub- Trust. The Custodian shall also be entitled to charge against any money held by it and specifically allocated to a Sub-Trust the amount of any loss, damage, liability or expense incurred with respect to such Sub-Trust, including counsel fees, for which it shall be entitled to reimbursement under the provisions of this Agreement. The expenses which the Custodians may charge against such account include, but are not limited to, the expenses of Sub-Custodians and foreign branches of the Custodian incurred in settling transactions outside of New York, New York involving the purchase and sale of Securities.
9. 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 genuine and to be signed by two Officers of the Trust. The Custodian shall be entitled to rely upon any Oral Instructions actually received by the Custodian pursuant to Articles IV, V, and VII hereof and reasonably believed by the Custodian to be genuine and to be given by an Authorized Person. The Trust agrees to use its best efforts to forward to the Custodian Written Instructions from an Authorized Person confirming such Oral Instructions in such manner so that such Written Instructions are received by the Custodian, whether by hand delivery, telex or otherwise, by the close of business on the same day that such Oral Instructions are given to the Custodian. The Trust agrees that the fact that such confirming instructions are not received by the Custodian shall in no way effect the validity of the transactions or enforceability of the transactions hereby authorized by the Trust. The Trust agrees that the Custodian shall incur no liability to the Trust in acting upon Oral Instructions given to the Custodian hereunder concerning such transactions provided such instructions reasonably appear to have been received from a duly 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 Trust and by employees of the Securities and Exchange Commission.
11. The Custodian shall provide the Trust with any report obtained by the Custodian on the system of internal accounting control of the Book-Entry System or the Depository and with such reports on its own systems of internal accounting control as the Trust may reasonably request from time to time.
12. The Trust agrees to indemnify and hold harmless the Custodian against and its nominee save the Custodian harmless from all taxesliability, charges,assessmentsclaims, claims losses and liabilities demands whatsoever, including attorney's fees, howsoever arising or incurred because of or assessed against it or its nominee in connection with the performance Custodian's payment or non-payment of this Agreementchecks pursuant to paragraph 6 of Article VIII as part of the check redemption privilege program of any Sub-Trust, except for any such as may arise from its or its nomineeliability, claim, loss and demand arising out of the Custodian's own negligent action, negligent failure to act negligence or willful misconduct. The Custodian is authorized provisions of this paragraph are not intended to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by protect the Custodian resulting front orders for its action or instructions of the Corporation, or failure to act in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities capacity in connection with the performance check redemption privilege program other than for its action or failure to act in its capacity as Custodian in accordance with the terms of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation shall be security therefore.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits 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 (including reasonable attorneys' fees) 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 1aw, apply for and obtain the advice and opinion of counsel to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Fund on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral;
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Fund under the provisions of its the Articles of IncorporationIncorporation and the Fund's By-Laws.
G. The Corporation 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 indemnify and hold harmless pay to the Custodian and its nominee from all taxessuch compensation as shall be determined pursuant to Appendix D attached hereto, charges,assessments, claims and liabilities incurred or assessed against it or its nominee in connection with the performance of this Agreement, except as shall be determined pursuant to amendments to such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. Appendix D. The Custodian is authorized shall be entitled to charge against any account of the Corporation for such items. In the event of any advance of funds for any purpose made money held by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held it for the account of the Corporation 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 security therefore.
H. In entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the event thatCustodian Written Instructions conforming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, pursuant to this Agreementwhether by hand delivery, facsimile or otherwise, on the Corporation instructs same business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to pay for securities on behalf receive such confirming instructions shall in no way affect the validity of the Corporationtransactions 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) 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 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 regulation all records required to be so preserved. All such books and records shall be the property of the Fund, and shall be open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Corporation Custodian shall send to the Fund any report received on the systems of internal accounting control of the Custodian, or its agents or sub-custodians, as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no responsibility for the management, 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 performance of its duties as custodian shall not be deemed to be a recommendation to the Fund's depositors or others of shares of the Fund as an investment.
M. The Custodian shall take all reasonable action, that the Fund may from time to time request, to assist the Fund in obtaining favorable opinions from the Fund's independent accountants, with respect to the Custodian's activities hereunder, in connection with the preparation of the 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 its to the Custodian a security interest in such securitiesany Fund Assets to secure the payment of any liabilities of the Fund to the Custodian, until whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian has been reimbursed Custodian. This pledge is in addition to any other pledge of collateral by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged Fund to the Custodian for purposes of the requirements of the Uniforn Commercial CodeCustodian.
Appears in 1 contract
Concerning the Custodian. A. The 1. Except as hereinafter provided, or as provided in Article XVI neither the Custodian nor its nominee shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 damage, including counsel fees, resulting from its action or omission to act or otherwise otherwise, either hereunder or under any Margin Account Agreement, except for any such logs loss or damage arising out ofits of its own negligence or willful misconduct. In no event shall the Custodian be liable to the Fund or any third party for special, indirect or consequential damages or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. The Custodian may 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 Corporation Fund or of its own counsel with respect to questions counsel, at the expense of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and 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.
D. 2. Without limiting the generality of the foregoing foregoing, the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for:
(a) The validity of the issue of any securities purchased Securities purchased, sold, or written by or for the CorporationFund, the legality of the purchase purchase, sale or writing thereof, or the propriety of the amount paid thereforeor received therefor;
(b) The legality of the issue sale or sale redemption of any securities by or for the CorporationShares, or the propriety of the amount for which the same are soldto be received or paid therefor;
(c) The legality of the issue declaration or sale payment of any shares of dividend by the capital stock of the Corporation, or the sufficiency of the amount to be received thereforeFund;
(d) The legality of any borrowing by the redemtion, of any shares. of capital stock of the Corporation or the propriety of the amount to be paid thereforeFund using Securities as collateral;
(e) The legality of any loan of portfolio Securities, nor shall the declaration 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 dividend dividends or distribution by interest which are payable to or for the Corporattion, or the legality account of the issuance Fund during the period of any shares such loan or at the termination of such loan, provided, however, that the Corporation's capital stock Custodian shall promptly notify the Fund in payment of any stock dividend the event that such dividends or distribution;interest are not paid and received when due; or
(f) The legality 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 delivery Custodian's receipt or non-receipt of any securities held such payment.
3. The Custodian shall not be liable for, or considered to be the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the Corporation payment of money, received by it 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 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 purpose failure of collateralizing the obligation Depository to collect, or for the Corporation to repay any moneys borrowed late collection or late crediting by the Corporation or
(g) The legality 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 delivery of Fund, except that the Custodian shall not be under any securities held for the Corporation for the purpose of loaning said securities obligation to appear in, prosecute or defend any action suit or proceeding in respect to any personSecurities held by the Depository which in its opinion may involve it in expense or liability, firm or corporationunless indemnity satisfactory to it against all expense and liability be furnished as often as may be required.
E. 5. The Custodian shall not be under any duty or obligation to talke take action to effective effect collection of any amount, 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction of rereimbursement reimbursement of its costs and expenses in connection with any such action.
F. 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 Securities at any time delivered to, or held by it or by any Foreign Sub-Custodian, 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 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 Corporationtime of the charge to the aggregate net asset value of all Series at that time) of the amount of any loss, are such as may properly damage, liability or expense, including counsel fees, for which it shall be held by the Corporation entitled to reimbursement under the provisions of its Articles this Agreement. The expenses for which the Custodian shall be entitled to reimbursement hereunder shall include, but are not limited to, the expenses of Incorporationsub-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.
G. 10. The Corporation 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 forego 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 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.
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 and hold harmless the Custodian against and its nominee save the Custodian harmless from all taxesliability, charges,assessmentsclaims, claims losses and liabilities demands whatsoever, including attorney's fees, howsoever arising or incurred because of or assessed 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 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 it or its nominee 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 performance 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 responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, except such as may arise from its and no covenant or its nominee's own negligent action, negligent failure to act or willful misconduct. The Custodian is authorized to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation obligation shall be security thereforeimplied in this Agreement against the Custodian.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Samples: Custody Agreement (Milestone Funds)
Concerning the Custodian. A. The 1. Except as hereinafter provided, or as provided in Article XVI neither the Custodian nor its nominee shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 damage, including counsel fees, resulting from its action or omission to act or otherwise otherwise, either hereunder or under any Margin Account Agreement, except for any such logs loss or damage arising out ofits of its own negligence or willful misconduct. In no event shall the Custodian be liable to the Fund or any third party for special, indirect or consequential damages or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. The Custodian may 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 Corporation Fund or of its own counsel with respect to questions counsel, at the expense of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and 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.
D. 2. Without limiting the generality of the foregoing foregoing, the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for:
(a) The validity of the issue of any securities purchased Securities purchased, sold, or written by or for the CorporationFund, the legality of the purchase purchase, sale or writing thereof, or the propriety of the amount paid thereforeor received therefor;
(b) The legality of the issue sale or sale redemption of any securities by or for the CorporationShares, or the propriety of the amount for which the same are soldto be received or paid therefor;
(c) The legality of the issue declaration or sale payment of any shares of dividend by the capital stock of the Corporation, or the sufficiency of the amount to be received thereforeFund;
(d) The legality of any borrowing by the redemtion, of any shares. of capital stock of the Corporation or the propriety of the amount to be paid thereforeFund using Securities as collateral;
(e) The legality of any loan of portfolio Securities, nor shall the declaration 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 X of this Agreement makes payment to it of any dividend dividends or distribution by interest which are payable to or for the Corporattion, or the legality account of the issuance Fund during the period of any shares such loan or at the termination of such loan, provided, however, that the Corporation's capital stock Custodian shall promptly notify the Fund in payment of any stock dividend the event that such dividends or distribution;interest are not paid and received when due; or
(f) The legality 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 delivery Custodian's receipt or non-receipt of any securities held such payment.
3. The Custodian shall not be liable for, or considered to be the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the Corporation payment of money, received by it 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 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 purpose failure of collateralizing the obligation Depository to collect, or for the Corporation to repay any moneys borrowed late collection or late crediting by the Corporation or
(g) The legality 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 delivery of Fund, except that the Custodian shall not be under any securities held for the Corporation for the purpose of loaning said securities obligation to appear in, prosecute or defend any action suit or proceeding in respect to any personSecurities held by the Depository which in its opinion may involve it in expense or liability, firm or corporationunless indemnity satisfactory to it against all expense and liability be furnished as often as may be required.
E. 5. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction of rereimbursement reimbursement of its costs and expenses in connection with any such action.
F. 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 Securities at any time delivered to, or held by it or by any Foreign Sub-Custodian, 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 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 Corporationtime of the charge to the aggregate net asset value of all Series at that time) of the amount of any loss, are such as may properly damage, liability or expense, including counsel fees, for which it shall be held by the Corporation entitled to reimbursement under the provisions of its Articles this Agreement. The expenses for which the Custodian shall be entitled to reimbursement hereunder shall include, but are not limited to, the expenses of Incorporationsub-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.
G. 10. The Corporation 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 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.
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 and hold harmless the Custodian against and its nominee save the Custodian harmless from all taxesliability, charges,assessmentsclaims, claims losses and liabilities demands whatsoever, including attorney's fees, howsoever arising or incurred because of or assessed 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 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 it or its nominee 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 performance 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 responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, except such as may arise from its and no covenant or its nominee's own negligent action, negligent failure to act or willful misconduct. The Custodian is authorized to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation obligation shall be security thereforeimplied in this Agreement against the Custodian.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Samples: Custody Agreement (Alliance Real Estate Investment Institutional Fund)
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits of its own gross negligence or willful misconduct. The Fund shall defend, indemnify and hold harmless the Custodian and its Trustees, officers, employees and agents with respect to any loss, claim, liability or cost (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid therefore;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received therefore;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid therefore;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Fund on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral;
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Fund under the provisions of its Articles the Declaration of IncorporationTrust and the Fund's By-Laws.
G. The Corporation 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 indemnify and hold harmless pay to the Custodian and its nominee from all taxessuch compensation as shall be determined pursuant to Appendix D attached hereto, charges,assessments, claims and liabilities incurred or assessed against it or its nominee in connection with the performance of this Agreement, except as shall be determined pursuant to amendments to such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. Appendix D. The Custodian is authorized shall be entitled to charge against any account of the Corporation for such items. In the event of any advance of funds for any purpose made money held by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held it for the account of the Corporation shall be security therefore.
H. In Fund, the event thatamount of any of its fees, that are not paid when due and the amount of any loss, damage, liability or expense, including counsel fees for which the Custodian is indemnified by, or entitled to reimbursement from, the Fund pursuant to this Agreement. The expenses which the Custodian may charge against the account of the Fund include, but are not limited to, the Corporation instructs 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 pay for securities on behalf receive such confirming instructions shall in no way affect the validity of the Corporation, transactions or enforceability of the transactions hereby authorized by the Fund. The Corporation hereby grants its Fund agrees that the Custodian shall incur no liability to the Fund for acting upon Oral Instructions given to the Custodian a security interest hereunder concerning such transactions.
J. The Custodian will (i) set up and maintain proper books of account and complete records of all transactions in the accounts maintained by the Custodian hereunder in such securitiesmanner as will meet the obligations of the Fund under the Act, until with particular attention to Section 31 thereof and Rules 3 1a-1 and 31 a-2 thereunder and those records are the Custodian has been reimbursed property of the Fund, and (ii) preserve for the periods prescribed by applicable Federal statute or regulation all records required to be so preserved. All such books and records shall be the property of the Fund, and shall be open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Corporation in immediately available fundsFund.
K. The Custodian shall send to the Fund any report received on the systems of internal accounting control of the Custodian, or its agents or sub-custodians, as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no responsibility for the management, investment or reinvestment of the Securities from time to time owned by the Fund. The Corporation's written instructions designating Custodian is not a selling agent for shares of the securities Fund and performance of its duties as custodian shall not be deemed to be paid for shall be considered a recommendation to the requisite description and designation Fund's depositors or others of shares of the securities pledged Fund as an investment.
M. The Custodian shall take all reasonable action, that the Fund may from time to time request, to assist the Fund in obtaining favorable opinions from the Fund's independent accountants, with respect to the Custodian for purposes Custodian's activities hereunder, in connection with the preparation of the requirements of Fund's Form N-lA, Form N-SA.R, or other annual reports to the Uniforn Commercial CodeSecurities and Exchange Commission.
Appears in 1 contract
Samples: Custody Agreement (Timothy Plan)
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits 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 (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or Fund in respect of shares of the Fund.
6.) the legality of any borrowing by the issuance of any shares Fund on behalf of the Corporation's capital stock in payment of any stock dividend or distributionFund, using Securities as collateral;
(f) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed by the Corporation or
(g) The legality of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any person, firm or corporation.
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Fund under the provisions of its the Articles of IncorporationIncorporation and the Fund's By-Laws.
G. The Corporation 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 indemnify and hold harmless pay to the Custodian and its nominee from all taxessuch compensation as shall be determined pursuant to Appendix D attached hereto, charges,assessments, claims and liabilities incurred or assessed against it or its nominee in connection with the performance of this Agreement, except as shall be determined pursuant to amendments to such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. Appendix D. The Custodian is authorized shall be entitled to charge against any account of the Corporation for such items. In the event of any advance of funds for any purpose made money held by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held it for the account of the Corporation 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 security therefore.
H. In entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the event thatCustodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, pursuant to this Agreementwhether by hand delivery, facsimile or otherwise, on the Corporation instructs same business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to pay for securities on behalf receive such confirming instructions shall in no way affect the validity of the Corporationtransactions 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) 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 Fund under the Act, with particular attention to Section 31 thereof and Rules 319-l 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 regulation all records required to be so preserved. All such books and records shall be the property of the Fund, and shall be open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Corporation Custodian shall send to the Fund any report received on the systems of internal accounting control of the Custodian, or its agents or sub-custodians, as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no responsibility for the management, 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 performance of its duties as custodian shall not be deemed to be a recommendation to the Fund's depositors or others of shares of the Fund as an investment.
M. The Custodian shall take all reasonable action, that the Fund may from time to time request, to assist the Fund in obtaining favorable opinions from the Fund's independent accountants, with respect to the Custodian's activities hereunder, in connection with the preparation of the Fund's Form N-l A, Form N-SAR, or other annual reports to the Securities and Exchange Commission.
N. The Fund hereby pledges to and grants its to the Custodian a security interest in such securitiesany Fund Assets to secure the payment of any liabilities of the Fund to the Custodian, until whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian has been reimbursed Custodian. This pledge is in addition to any other pledge of collateral by the Corporation Fund to the Custodian.
A. Either of the parties; hereto may terminate this Agreement for any reason by giving to the other party a notice in immediately available funds. The Corporation's written instructions designating writing specifying the securities to be paid for date of such termination, which shall be considered not less than ninety (90) days after the requisite description and designation date of giving of such notice. If such notice is given by the Fund, it shall be accompanied by a copy of a resolution of the securities pledged Board of Trustees of the Fund, certified by the Secretary of the Fund, electing to terminate this Agreement and designating a successor custodian or custodians. In the event such notice is given by the Custodian, the Fund shall, on or before the termination date, deliver to the Custodian for purposes a copy of a resolution of the requirements Board of Trustees of the Uniforn Commercial CodeFund, certified by the Secretary, designating a successor custodian or custodians to act on behalf of the Fund. In the absence of such designation by the Fund, the Custodian may designate a successor custodian which shall be a bank or trust company having not less than $100,000,000 aggregate capital, surplus, and undivided profits. Upon the date set forth in such notice this Agreement shall terminate, and the Custodian, provided that it has received a notice of acceptance by the successor custodian, shall deliver, on that date, directly to the successor custodian all Securities and monies then owned by the Fund and held by it as Custodian. Upon termination of this Agreement, the Fund shall pay to the Custodian on behalf of the Fund such compensation as may be due as of the date of such termination. The Fund agrees on behalf of the Fund that the Custodian shall be reimbursed for its reasonable costs in connection with the termination of this Agreement.
B. If a successor custodian is not designated by the Fund, or by the Custodian in accordance with the preceding paragraph, or the designated successor cannot or will not serve, the Fund shall, upon the delivery by the Custodian to the Fund of all Securities (other than Securities held in the Book-Entry System which cannot be delivered to the Fund) and moneys then owned by the Fund, be deemed to be the custodian for the Fund, and the Custodian shall thereby be relieved of all duties and responsibilities pursuant to this Agreement, other than the duty with respect to Securities held in the Book-Entry System, which cannot be delivered to the Fund, which shall be held by the Custodian in accordance with this Agreement.
A. Appendix A sets forth the names and the signatures of all Authorized Persons, as certified by the Secretary of the Fund. The Fund agrees to furnish to the Custodian a new Appendix A in form similar to the attached Appendix A, if any present Authorized Person ceases to be an Authorized Person or if any other or additional Authorized Persons are elected or appointed. Until such new Appendix A shall be received, the Custodian shall be fully protected in acting under the provisions of this Agreement upon Oral Instructions or signatures of the then current Authorized Persons as set forth in the last delivered Appendix A.
B. No recourse under any obligation of this Agreement or for any claim based thereon shall be had against any organizer, shareholder, Officer, Director, past, present or future as such, of the Fund or of any predecessor or successor, either directly or &rough the Fund or any such predecessor or successor, whether by virtue of any constitution, statute or rule of law or equity, or be the enforcement of any assessment or penalty or otherwise; it being expressly agreed and understood that this Agreement and the obligations thereunder are enforceable solely against the Fund, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the organizers, shareholders, Officers, Trustees of the Fund or of any predecessor or successor, or any of them as such. To the extent that any such liability exists, it is hereby expressly waived and released by the Custodian as a condition of, and as a consideration for, the execution of this Agreement.
C. The obligations set forth in this Agreement as having been made by the Fund have been made by the Board of Trustees, acting as such Trustees for and on behalf of the Fund, pursuant to the authority vested in them under the laws of the State of Kentucky, the Articles of Incorporation and the By-Laws of the Fund. This Agreement has been executed by Officers of the Fund as officers, and not individually, and the obligations contained herein are not binding upon any of the Trustees, Officer;, agents or holders of shares, personally, but bind only the Fund.
D. Provisions of the Prospectus and any other documents (including advertising material) specifically mentioning the Custodian (other than merely by name and address) shall be reviewed with the Custodian by the Fund prior to publication and/or dissemination or distribution, and shall be subject to the consent of the Custodian.
E. Any notice or other instrument in writing, authorized or required by this Agreement to be given to the Custodian, shall be sufficiently given if addressed to the Custodian and mailed or delivered to it at its offices at Star Bank Center, 000 Xxxxxx Xxxxxx,
Appears in 1 contract
Concerning the Custodian. A. The 1. Except as hereinafter provided, or as provided in Article XVI neither the Custodian nor its nominee shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 damage, including counsel fees, resulting from its action or omission to act or otherwise otherwise, either hereunder or under any Margin Account Agreement, except for any such logs loss or damage arising out ofits of its own negligence or negligence, willful misconduct, lack of good faith, or reckless disregard of its duties. The Custodian may agrees to indemnify and hold harmless the Trust and Trust's Trustees and officers to the extent described above (including reasonable counsel fees) incurred or assessed against any of them as a result of any breach or violation of this Agreement by the Custodian or its officers, employees and agents or its nominees, resulting from their negligence, willful misconduct, lack of good faith, or reckless disregard of its duties. 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 Corporation Fund or of its own counsel with respect to questions counsel, at the expense of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and 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, willful misconduct, lack of good faith, or reckless disregard of its duties on the part of the Custodian or any of its employees or agents. Notwithstanding the foregoing, or any other provision contained in this Agreement, in no event shall the Custodian be liable to the Trust, its Trustees or officers, or any third party, for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action.
D. 2. Without limiting the generality of the foregoing the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for:
(a) The validity of the issue of any securities purchased Securities purchased, sold, or written by or for the CorporationFund, the legality of the purchase purchase, sale or writing thereof, or the propriety of the amount paid thereforeor received therefor;
(b) The legality of the issue sale or sale redemption of any securities by or for the CorporationShares, or the propriety of the amount for which the same are soldto be received or paid therefor;
(c) The legality of the issue declaration or sale payment of any shares of dividend by the capital stock of the Corporation, or the sufficiency of the amount to be received thereforeFund;
(d) The legality of any borrowing by the redemtion, of any shares. of capital stock of the Corporation or the propriety of the amount to be paid thereforeFund using Securities as collateral;
(e) The legality of any loan of portfolio Securities, nor shall the declaration 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 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 dividend dividends or distribution by interest which are payable to or for the Corporattion, or the legality account of the issuance Fund during the period of any shares such loan or at the termination of such loan, provided, however, that the Corporation's capital stock Custodian shall promptly notify the Fund in payment of any stock dividend the event that such dividends or distribution;interest are not paid and received when due; or
(f) The legality 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 delivery Custodian's receipt or non-receipt of any securities held such payment.
3. The Custodian shall not be liable for, or considered to be the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the Corporation payment of money, received by it 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 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 purpose failure of collateralizing the obligation Depository to collect, or for the Corporation to repay any moneys borrowed late collection or late crediting by the Corporation or
(g) The legality 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 delivery of Fund, except that the Custodian shall not be under any securities held for the Corporation for the purpose of loaning said securities obligation to appear in, prosecute or defend any action suit or proceeding in respect to any personSecurities held by the Depository which in its opinion may involve it in expense or liability, firm or corporationunless indemnity satisfactory to it against all expense and liability be furnished as often as may be required.
E. 5. The Custodian shall not be under any duty or obligation to talke take action to effective effect collection of any amount, 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction of rereimbursement reimbursement of its costs and expenses in connection with any such action.
F. 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 Securities at any time delivered to, or held by it or by any Foreign Sub-Custodian, 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 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 Fund represents that the Administrator has agreed to pay such compensation and expenses promptly upon receipt of statements therefor, and hereby directs the Custodian to (i) send all statements for compensation to its attention care of Fund/Plan at the following address: Fund/Plan Services, Inc., 0 X. Xxx Xxxxxx, Xxxxxxxxxxxx, XX 00000, Attention: Xx. Xxxxx Xxxxxxx, Senior Vice President, and (ii) accept all payments made by Fund/Plan in the Fund's name as if such payments were made directly by the Fund. The Fund shall pay to Fund/Plan fees for services (including custodian services provided by the Custodian) in accordance with the Administration Agreement. The Custodian's compensation for services rendered hereunder is set forth in a separate agreement between the Custodian and Fund/Plan. Should Fund/Plan fail to pay or remit such compensation to the Custodian within 20 days of the date the same is due and payable, Custodian shall notify the Fund. If such payment or remittance is not received from Fund/Plan within 15 days of such notice, then the Custodian will be entitled to debit the Custody Account directly for such compensation. The Custodian may charge compensation with respect to which it has properly sent a notice to the Fund, as provided in the preceding sentence, 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 or the Administrator 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 Corporationtime of the charge to the aggregate net asset value of all Series at that time) of the amount of any loss, are such as may properly damage, liability or expense, including counsel fees, for which it shall be held by the Corporation entitled to reimbursement under the provisions of its Articles of Incorporation.
G. The Corporation agrees to indemnify and hold harmless the Custodian and its nominee from all taxes, charges,assessments, claims and liabilities incurred or assessed against it or its nominee 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. The Custodian is authorized to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation shall be security therefore.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.this
Appears in 1 contract
Samples: Custody Agreement (MCM Funds)
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits 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 (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the, Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock share of the Corporation Fund, or the propriety of the amount to be paid thereforetherefor;
(e) The legality of the declaration of any dividend or distribution by the Corporattion, or the legality of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distribution;
(f) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed by the Corporation or
(g) The legality of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any person, firm or corporation.
E. The Custodian shall not be under any duty or obligation to talke action to effective collection of any amount, if the securities upon which such consent is payable are in default, or if payment is refused after due on presentation, unless and until (i) it shall be derected to take such action by Written Instruction, and (ii) it shall, be assured to its satisfaction of rereimbursement 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 account of the Corporation, are such as may properly be held by the Corporation under the provisions of its Articles of Incorporation.
G. The Corporation agrees to indemnify and hold harmless the Custodian and its nominee from all taxes, charges,assessments, claims and liabilities incurred or assessed against it or its nominee 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. The Custodian is authorized to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation shall be security therefore.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Samples: Custody Agreement (Chaconia Income & Growth Fund Inc)
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits 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 (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Fund on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral;
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Fund under the provisions of its the Articles of IncorporationIncorporation and the Fund's By-Laws.
G. The Corporation 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 indemnify and hold harmless pay to the Custodian and its nominee from all taxessuch compensation as shall be determined pursuant to Appendix D attached hereto, charges,assessments, claims and liabilities incurred or assessed against it or its nominee in connection with the performance of this Agreement, except as shall be determined pursuant to amendments to such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. Appendix D. The Custodian is authorized shall be entitled to charge against any account of the Corporation for such items. In the event of any advance of funds for any purpose made money held by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held it for the account of the Corporation 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 security therefore.
H. In entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the event thatCustodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, pursuant to this Agreementwhether by hand delivery, facsimile or otherwise, on the Corporation instructs same business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to pay for securities on behalf receive such confirming instructions shall in no way affect the validity of the Corporationtransactions 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) 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 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 regulation all records required to be so preserved. All such books and records shall be the property of the Fund, and shall be open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Corporation Custodian shall send to the Fund any report received on the systems of internal accounting control of the Custodian, or its agents or sub-custodians, as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no responsibility for the management, 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 performance of its duties as custodian shall not be deemed to be a recommendation to the Fund's depositors or others of shares of the Fund as an investment.
M. The Custodian shall take all reasonable action, that the Fund may from time to time request, to assist the Fund in obtaining favorable opinions from the Fund's independent accountants, with respect to the Custodian's activities hereunder, in connection with the preparation of the 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 its to the Custodian a security interest in such securitiesany Fund Assets to secure the payment of any liabilities of the Fund to the Custodian, until whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian has been reimbursed Custodian. This pledge is in addition to any other pledge of collateral by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged Fund to the Custodian for purposes of the requirements of the Uniforn Commercial CodeCustodian.
Appears in 1 contract
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits 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 (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid therefore;therefor; --------------------------------------------------------------------------------
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid therefore;therefor; --------------------------------------------------------------------------------
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Fund on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral; --------------------------------------------------------------------------------
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Fund under the provisions of its the Articles of IncorporationIncorporation and the Fund's By-Laws.
G. The Corporation 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 indemnify and hold harmless pay to the Custodian and its nominee from all taxes, charges,assessments, claims and liabilities incurred or assessed against it or its nominee in connection with the performance of this Agreement, except such compensation as may arise from its or its nominee's own negligent action, negligent failure shall be determined pursuant to act or willful misconduct. The Custodian is authorized to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the CorporationAppendix D attached hereto, or in 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 or its -nominee within 30 days of receipt of an invoice therefore, the Custodian shall incur or be assessed entitled to charge against any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time money held by it for the account of the Corporation 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 security therefore.
H. In entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the event thatCustodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, pursuant to this Agreementwhether by hand delivery, facsimile or otherwise, on the Corporation instructs same business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to pay for securities on behalf receive such confirming instructions shall in no way affect the validity of the Corporationtransactions 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) 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 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 regulation all records required to be so preserved. All such books and records shall be the property of the Fund, and shall be open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Corporation Custodian shall send to the Fund any report received on the systems of internal accounting control of the Custodian, or its agents or sub-custodians, as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no responsibility for the management, 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 performance of its duties as custodian shall not be deemed to be a recommendation to the Fund's depositors or others of shares of the Fund as an investment.
M. The Custodian shall take all reasonable action that the Fund may from time to time request to assist the Fund in obtaining favorable opinions from the Fund's independent accountants with respect to the Custodian's activities hereunder, in connection with the preparation of the 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 its to the Custodian a security interest in such securitiesany Fund Assets to secure the payment of any liabilities of the Fund to the Custodian, until whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian has been reimbursed Custodian. This pledge is in addition to any other pledge of collateral by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged Fund to the Custodian for purposes of the requirements of the Uniforn Commercial CodeCustodian.
Appears in 1 contract
Samples: Custody Agreement (Brass Funds Inc)
Concerning the Custodian. A. The 1. Except as hereinafter provided, neither the Custodian nor its nominee shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 damage, including counsel fees, resulting from its action or omission to act or otherwise otherwise, except for any such logs loss or damage arising out ofits of its own negligence or willful misconduct. The Custodian may may, with respect to questions of law, apply for and obtain the advice and opinion of counsel to the Corporation Fund or of its own counsel with respect to questions at the expense of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such advice or opinion. The Custodian shall be subject to the same liability with respect to all securities of the Fund, and all cash, stock dividends, rights and items of like nature to which the Fund is entitled, held or received by a Depository as agent for the Custodian, as if the same were held or received by the Custodian at its own offices. Anything to the contrary in this Agreement notwithstanding, the Custodian shall not be liable to the Fund for any loss or damage to the Fund resulting from use of the Book-Entry System except by reason of any negligence, misfeasance or misconduct of the Custodian (or any of its agents) or by any of its (or their) employees or from any failure of the Custodian (or any such agent) to enforce effectively such rights as it may have against the Book-Entry System; at the election of the Fund, it shall be entitled to be subrogated for the Custodian in any claim against the Book-Entry System or any other person which the Custodian may have as a consequence of any such loss or damage if and to the extent that the Fund has not been made whole for any such loss or damage.
D. 2. Without limiting the generality of the foregoing foregoing, the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for:
(a) The validity of the issue of any securities Securities purchased by or for the CorporationFund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b) The legality of the issue or sale of any securities Securities by or for the CorporationFund, or the propriety of the amount for which the same are sold;
(c) The legality of the issue or sale of any shares of the capital stock of the CorporationShares, or the sufficiency of the amount to be received thereforetherefor;
(d) The legality of the redemtion, redemption of any shares. of capital stock of the Corporation Shares, or the propriety of the amount to be paid thereforetherefor;
(e) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distribution;Fund; or
(f) The legality of any borrowing by the delivery of Fund using Securities as collateral.
3. The Custodian shall not be liable for, or considered to be the Custodian of, any securities held money, whether or not represented by any check, draft, or other instrument for the Corporation for payment of money, received by it on behalf of the purpose of collateralizing Fund until the obligation for the Corporation to repay any moneys borrowed Custodian actually receives and collects such money directly or by the Corporation or
(g) The legality final crediting of the delivery of any securities held for account representing the Corporation for Fund's interest at the purpose of loaning said securities to any person, firm Book-Entry System or corporationthe Depository.
E. 4. The Custodian shall not be under any duty or obligation to talke take action to effective effect collection of any amount, if the securities Securities upon which such consent amount is payable are in default, or if payment is refused after due on presentation, demand or presentation unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction of rereimbursement reimbursement of its costs and expenses in connection with any such action.
F. 5. 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 by the Fund.
6. The Custodian shall not be under any duty or obligation to ascertain whether any securities Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Fund and under the provisions of its Articles Declaration of IncorporationTrust.
G. 7. The Corporation Custodian shall be entitled to receive and the Fund agrees to indemnify pay to the Custodian such compensation and hold harmless expenses as may be agreed upon from time to time between the Custodian and the Fund, which compensation initially shall be as set out in Appendix B hereto. The Custodian may charge against any moneys such compensation with respect to the Fund and any expenses with respect to the Fund incurred by the Custodian in the performance of its nominee from all taxesduties pursuant to such agreement. The Custodian shall also be entitled to charge against any money held by it, charges,assessmentsthe amount of any loss, claims damage, liability or expense incurred with respect to the Fund, 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 and liabilities of any Sub-custodian which the Custodian may be required to pay or reimburse, and expenses of foreign branches of the Custodian incurred in settling outside of Detroit transactions involving the purchase and sale of Securities.
8. The Custodian shall be entitled to rely upon any Certificate, notice or assessed against it other instrument in writing received by the Custodian and reasonably believed by the Custodian to be genuine and to be signed by two Officers of the Fund or by an Authorized Person. The Custodian shall be entitled to rely upon any Oral Instructions actually received by the Custodian pursuant to Articles III, 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 Written Instructions from an Authorized Person confirming such Oral Instructions in such manner so that such Written Instructions are received by the Custodian, whether by hand delivery, telex 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 Authorized Person.
9. The Custodian shall maintain all records relating to its nominee activities and obligations under this Agreement consistent with the provisions of the Investment Company Act of 1940, particularly Section 31 thereof and Rules 31a-1 and 31a-2 thereunder, and such records shall be available to enable the Fund to report information required on Form N-1A, N-SAR, applicable tax returns and any other law or administrative reporting rules or procedures which may be applicable to the Fund. All records maintained by the Custodian in connection with the performance of its duties under this Agreement will remain the property of the Fund and in the event of termination of this Agreement will be delivered to the Fund or to the successor custodian.
10. 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 and with such reports on its own systems of internal accounting control as the Fund may reasonably request from time to time.
11. The Fund, its successors and assigns, shall at all times fully indemnify and save harmless the Custodian, and its successors and assigns, from any liability or expense whatsoever, including attorney's fees, which may arise in connection with this Agreement, except such as may arise from its or its nominee's own negligent action, negligent for the failure of the Custodian to act or willful misconductperform the things to be done by it under this Agreement. The Custodian is authorized may, with respect to charge any account 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 Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the CorporationFund, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation and shall be security thereforefully protected with respect to anything done or omitted by it in good faith in conformity with such advice or opinion.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits of its own negligence or willful misconduct. The Fund shall defend, indemnify and hold harmless the Custodian and its Trustees, officers, employees and agents with respect to any loss, claim, liability or cost (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Fund on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral;
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Fund under the provisions of its the Articles of IncorporationIncorporation and the Fund's By-Laws.
G. The Corporation 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 indemnify and hold harmless pay to the Custodian and its nominee from all taxessuch compensation as shall be determined pursuant to Appendix D attached hereto, charges,assessments, claims and liabilities incurred or assessed against it or its nominee in connection with the performance of this Agreement, except as shall be determined pursuant to amendments to such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. Appendix D. The Custodian is authorized shall be entitled to charge against any account of the Corporation for such items. In the event of any advance of funds for any purpose made money held by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held it for the account of the Corporation 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 security therefore.
H. In entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the event thatCustodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, pursuant to this Agreementwhether by hand delivery, facsimile or otherwise, on the Corporation instructs same business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to pay for securities on behalf receive such confirming instructions shall in no way affect the validity of the Corporationtransactions 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) 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 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 regulation all records required to be so preserved. All such books and records shall be the property of the Fund, and shall be open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Corporation Custodian shall send to the Fund any report received on the systems of internal accounting control of the Custodian, or its agents or sub-custodians, as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no responsibility for the management, 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 performance of its duties as custodian shall not be deemed to be a recommendation to the Fund's depositors or others of shares of the Fund as an investment.
M. The Custodian shall take all reasonable action, that the Fund may from time to time request, to assist the Fund in obtaining favorable opinions from the Fund's independent accountants, with respect to the Custodian's activities hereunder, in connection with the preparation of the 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 its to the Custodian a security interest in such securitiesany Fund Assets to secure the payment of any liabilities of the Fund to the Custodian, until whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian has been reimbursed Custodian. This pledge is in addition to any other pledge of collateral by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged Fund to the Custodian for purposes of the requirements of the Uniforn Commercial CodeCustodian.
Appears in 1 contract
Samples: Custody Agreement (Bjurman Funds)
Concerning the Custodian. A. The 1. Except as hereinafter provided, or as provided in Article XVI neither the Custodian nor its nominee shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 damage, including counsel fees, resulting from its action or omission to act or otherwise otherwise, either hereunder or under any Margin Account Agreement, except for any such logs loss or damage arising out ofits of its own negligence or negligence, willful misconduct, lack of good faith, or reckless disregard of its duties. The Custodian may agrees to indemnify and hold harmless the Trust and Trust's Trustees and officers to the extent described above (including reasonable counsel fees) incurred or assessed against any of them as a result of any breach or violation of this Agreement by the Custodian or its officers, employees and agents or its nominees, resulting from their negligence, willful misconduct, lack of good faith, or reckless disregard of its duties. 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 Corporation Fund or of its own counsel with respect to questions counsel, at the expense of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and 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, willful misconduct, lack of good faith, or reckless disregard of its duties on the part of the Custodian or any of its employees or agents. Notwithstanding the foregoing, or any other provision contained in this Agreement, in no event shall the Custodian be liable to the Trust, its Trustees or officers, or any third party, for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action.
D. 2. Without limiting the generality of the foregoing the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for:
(a) The validity of the issue of any securities purchased Securities purchase, sold, or written by or for the CorporationFund, the legality of the purchase purchase, sale or writing thereof, or the propriety of the amount paid therefore;
or received therefor; (b) The legality of the issue sale or sale redemption of any securities by or for the CorporationShares, or the propriety of the amount for which the same are sold;
(c) The legality of the issue or sale of any shares of the capital stock of the Corporation, or the sufficiency of the amount to be received therefore;
(d) The legality of the redemtion, of any shares. of capital stock of the Corporation or the propriety of the amount to be received or paid thereforetherefor;
(e) The legality of the declaration of any dividend or distribution by the Corporattion, or the legality of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distribution;
(f) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed by the Corporation or
(g) The legality of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any person, firm or corporation.
E. The Custodian shall not be under any duty or obligation to talke action to effective collection of any amount, if the securities upon which such consent is payable are in default, or if payment is refused after due on presentation, unless and until (i) it shall be derected to take such action by Written Instruction, and (ii) it shall, be assured to its satisfaction of rereimbursement 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 account of the Corporation, are such as may properly be held by the Corporation under the provisions of its Articles of Incorporation.
G. The Corporation agrees to indemnify and hold harmless the Custodian and its nominee from all taxes, charges,assessments, claims and liabilities incurred or assessed against it or its nominee 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. The Custodian is authorized to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation shall be security therefore.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Samples: Custody Agreement (Timothy Plan)
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 from. its action or omission to act or otherwise otherwise, except for any such logs loss or damage arising out ofits 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 (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a) 1. The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b) 2. The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c) 3. The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d) 4. The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid thereforetherefor;
(e) 5. The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f) 6. The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Fund on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral;
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Fund under the provisions of its the Articles of IncorporationIncorporation and the Fund's By-Laws.
G. The Corporation 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 indemnify and hold harmless pay to the Custodian and its nominee from all taxessuch compensation as shall be determined pursuant to Appendix D attached hereto, charges,assessments, claims and liabilities incurred or assessed against it or its nominee in connection with the performance of this Agreement, except as shall be determined pursuant to amendments to such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. Appendix D. The Custodian is authorized shall be entitled to charge against any account of the Corporation for such items. In the event of any advance of funds for any purpose made money held by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held it for the account of the Corporation 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 security therefore.
H. In entitled to rely upon any Oral Instructions and any Written Instructions. The Bind agrees to forward to the event thatCustodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, pursuant to this Agreementwhether by hand delivery, facsimile or otherwise, on the Corporation instructs same business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to pay for securities on behalf receive such confirming instructions shall in no way affect the validity of the Corporationtransactions 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) 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 Fund under the Act, with particular attention to Section 31 thereof and Rules 3la-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 regulation all records required to be so preserved. All such books and records shall be the property of the Fund, and shall be open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Corporation Custodian shall send to the Fund any report received on the systems of internal accounting control of the Custodian, or its agents or sub-custodians, as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no responsibility for the management, 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 performance of its duties as custodian shall not be deemed to be a recommendation to the Fund's depositors or others of shares of the Fund as an investment.
M. The Custodian shall take all reasonable action, that the Fund may from time to time request, to assist the Fund in obtaining favorable opinions from the Fund's independent accountants, with respect to the Custodian's activities hereunder, in connection with the preparation of the Fund's Form N-IA, Form N-SAR, or other annual reports to the Securities and Exchange Commission.
N. The Fund hereby pledges to and grants its to the Custodian a security interest in such securitiesany Fund Assets to secure the payment of any liabilities of the Fund to the Custodian, until whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian has been reimbursed Custodian. This pledge is in addition to any other pledge of collateral by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged Fund to the Custodian for purposes of the requirements of the Uniforn Commercial CodeCustodian.
Appears in 1 contract
Samples: Custody Agreement (Rainbow Fund Inc)
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits of its own negligence (gross or otherwise) 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 (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Fund on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral;
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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, other than to notify the Fund regarding such payment or lack thereof.
D. Notwithstanding Section D of Article V, and other than notifying the Fund about such lack of payment, the Custodian shall not be under any duty or obligation to take action to effect collection of any amount, if the securities Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 account of the Corporation, are such as may properly be held by the Corporation under the provisions of its Articles of Incorporation.
G. The Corporation agrees to indemnify and hold harmless the Custodian and its nominee from all taxes, charges,assessments, claims and liabilities incurred or assessed against it or its nominee 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. The Custodian is authorized to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation shall be security therefore.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits of its own gross negligence or willful misconduct. The Fund shall defend, indemnify and hold harmless the Custodian and its Trustees, officers, employees and agents with respect to any loss, claim, liability or cost (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Fund on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral;
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Fund under the provisions of its the Articles of IncorporationIncorporation and the Fund's By-Laws.
G. The Corporation 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 indemnify and hold harmless pay to the Custodian and its nominee from all taxessuch compensation as shall be determined pursuant to Appendix D attached hereto, charges,assessments, claims and liabilities incurred or assessed against it or its nominee in connection with the performance of this Agreement, except as shall be determined pursuant to amendments to such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. Appendix D. The Custodian is authorized shall be entitled to charge against any account of the Corporation for such items. In the event of any advance of funds for any purpose made money held by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held it for the account of the Corporation 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 security therefore.
H. In entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the event thatCustodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, pursuant to this Agreementwhether by hand delivery, facsimile or otherwise, on the Corporation instructs same business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to pay for securities on behalf receive such confirming instructions shall in no way affect the validity of the Corporationtransactions 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) 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 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 regulation all records required to be so preserved. All such books and records shall be the property of the Fund, and shall be open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Corporation Custodian shall send to the Fund any report received on the systems of internal accounting control of the Custodian, or its agents or sub-custodians, as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no responsibility for the management, 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 performance of its duties as custodian shall not be deemed to be a recommendation to the Fund's depositors or others of shares of the Fund as an investment.
M. The Custodian shall take all reasonable action, that the Fund may from time to time request, to assist the Fund in obtaining favorable opinions from the Fund's independent accountants, with respect to the Custodian's activities hereunder, in connection with the preparation of the 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 its to the Custodian a security interest in such securitiesany Fund Assets to secure the payment of any liabilities of the Fund to the Custodian, until whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian has been reimbursed Custodian. This pledge is in addition to any other pledge of collateral by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged Fund to the Custodian for purposes of the requirements of the Uniforn Commercial CodeCustodian.
Appears in 1 contract
Samples: Custody Agreement (Amidex Funds Inc)
Concerning the Custodian. A. 1. The Custodian shall be paid use reasonable care in the performance of its duties hereunder, and, except as compensation for hereinafter provided, neither the Custodian nor its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian nominee shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 damage, including counsel fees, resulting from its action or omission to act or otherwise otherwise, either hereunder or under any Margin Account Agreement, except for any such logs loss or damage arising out ofits of its own negligence negligence, bad faith, or willful misconductmisconduct or that of its officers, employees, or agents. The Custodian may 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 Corporation Fund, at the expense of the Fund, or of its own counsel with respect to questions of lawcounsel, at its own expense, and shall be fully protected with respect to anything done or omitted by it in good faith and 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.
D. Without limiting 2. Notwithstanding the generality of the foregoing foregoing, the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for:
(a) The validity (but not the authenticity) of the issue of any securities purchased Securities purchased, sold, or written by or for the CorporationFund, the legality of the purchase purchase, sale or writing thereof, or the propriety of the amount paid thereforeor received therefor, as specified in a Certificate, Oral Instructions, or Written Instructions;
(b) The legality of the issue sale or sale redemption of any securities by or for the CorporationShares, or the propriety of the amount for which the same are soldto be received or paid therefor, as specified in a Certificate;
(c) The legality of the issue declaration or sale payment of any shares of dividend by the capital stock of the CorporationFund, as specified in a resolution, Certificate, Oral Instructions, or the sufficiency of the amount to be received thereforeWritten Instructions;
(d) The legality of any borrowing by the redemtion, of any shares. of capital stock of the Corporation or the propriety of the amount to be paid thereforeFund using Securities as collateral;
(e) The legality of any loan of portfolio Securities, nor shall the declaration of Custodian be under any dividend duty or distribution obligation to see to it that the cash collateral delivered to it by the Corporattiona broker, dealer, or the legality financial institution or held by it at any time as a result of such loan of portfolio Securities of the issuance Fund is adequate collateral for the Fund against any loss it might sustain as a result of any shares of the Corporation's capital stock in payment of any stock dividend or distribution;such loan, except that this sub-paragraph shall not
(f) The legality 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 delivery Custodian's receipt or non-receipt of any securities held such payment.
3. The Custodian shall not be liable for, or considered to be the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the Corporation payment of money, received by it on behalf of the Fund until the Custodian actually receives 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. With respect to Securities held in a Depository, except as otherwise provided in paragraph 5(b) of Article 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 purpose failure of collateralizing the obligation a Depository to collect, or for the Corporation late collection or late crediting by a Depository of any amount payable upon Securities deposited in a 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 a Depository the Custodian shall make a claim against the -34- 35 Depository on behalf of the Fund, except that the Custodian shall not be under any obligation to repay appear in, prosecute or defend any moneys borrowed 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 Corporation or
(g) The legality of the delivery of any securities held for the Corporation for the purpose of loaning said securities Custodian to any personact in accordance with a Certificate, firm Oral Instructions, or corporationWritten Instructions given in accordance with this Agreement.
E. 5. The Custodian shall not be under any duty or obligation to talke take action to effective effect collection of any amount, 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 Securities upon which such consent 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 on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction of rereimbursement 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 payment and such failure is the reason for the non-receipt of payment.
F. 7. The Custodian may appoint one or more banking institutions 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 money 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.
(a) The Custodian will use reasonable care with respect to its obligations under this Agreement and the safekeeping of Securities and money owned by the Fund. The Custodian shall be liable to the Fund for any loss which shall occur as the result of the failure of a sub-custodian which is a banking institution located in a foreign country and identified on Schedule A attached hereto and as amended from time to time upon mutual agreement of the parties (each, a "Sub-custodian") to exercise reasonable care with respect to the safekeeping of such securities and money to the same extent that the Custodian would be liable to the Fund if the Custodian were holding such Securities and money in New York. In the event of any loss to the Fund by reason of the failure of the Custodian or a Sub-custodian to utilize reasonable care, the Custodian shall be liable
(b) The Custodian shall not be liable for any loss which results from (i) the general risk of investing, or (ii) investing or holding Securities and money in a particular country including, but not limited to, losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; currency restrictions, devaluations or fluctuations; or market conditions which prevent the orderly execution of securities transactions or affect the value of Securities or money.
(c) Neither party shall be liable to the other for any loss due to forces beyond its control including, but not limited to, strikes or work stoppages, acts of war or terrorism, insurrection, revolution, nuclear fusion, fission or radiation, or acts of God.
9. The Custodian shall not be under any duty or obligation (a) to ascertain whether any securities Securities at any time delivered to, or 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 transactions by the Fund, whether or 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 such expenses with respect to a Series incurred by the Custodian in the performance of its duties under this Agreement against any money specifically allocated to such Series. The Custodian shall also be entitled to charge against any money held by it for the account of a Series the Corporationamount of any loss, are such as may properly damage, liability or expense, including counsel fees, for which it shall be held by the Corporation entitled to reimbursement under the provisions of this Agreement attributable to, or arising out of, its Articles 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 Incorporationsub-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. Notwithstanding the foregoing or anything else contained in this Agreement to the contrary, 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.
G. 11. The Corporation Custodian shall be entitled to rely upon any Certificate, notice or other 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
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 and hold harmless the Custodian against and its nominee save the Custodian harmless from all taxesliability, charges,assessmentsclaims, claims losses and liabilities incurred demands whatsoever, including attorney's fees, howsoever arising out of, or assessed against it related to, the Custodian's performance of its obligations under this Agreement, except for any such liability, claim, loss and demand arising out of the Custodian's own negligence, bad faith, or willful misconduct or that of its nominee in connection with officers, employees, or agents.
17. Subject to the performance foregoing provisions of this Agreement, the Custodian shall deliver and receive Securities, and receipts with respect to such Securities, and shall make and receive payments only in accordance with the customs prevailing from time to time among brokers or dealers in such Securities and, except such as may arise from its otherwise be provided by this Agreement or its nominee's own negligent actionas may be in accordance with such customs, negligent failure to act or willful misconductshall make payment for Securities only against delivery thereof and deliveries of Securities only against payment therefor.
18. The Custodian is authorized to charge any account of the Corporation for shall have no duties or responsibilities whatsoever except such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or duties and responsibilities as are specifically set forth in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its and no covenant or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation obligation shall be security thereforeimplied in this Agreement against the Custodian.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Samples: Custody Agreement (Morgan Stanley Dean Witter Real Estate Fund)
Concerning the Custodian. A. 1. The Custodian shall be paid use reasonable care in the performance of its duties hereunder, and, except as compensation for hereinafter provided, neither the Custodian nor its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian nominee shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 damage, including counsel fees, resulting from its action or omission to act or otherwise otherwise, either hereunder or under any Margin Account Agreement, except for any such logs loss or damage arising out ofits of its own negligence negligence, bad faith, or willful misconductmisconduct or that of its officers, employees, or agents. The Custodian may 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 Corporation Fund, at the expense of the Fund, or of its own counsel with respect to questions of lawcounsel, at its own expense, and shall be fully protected with respect to anything done or omitted by it in good faith and 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.
D. Without limiting 2. Notwithstanding the generality foregoing, the Custodian shall be under no obligation to inquire into, and shall not be li- able for:
(a) The validity (but not the authenticity) of the foregoing 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, as specified in a Certificate, Oral Instructions, or 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
(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 inquire intosee 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 for, or considered to be the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the payment of money, received by it on behalf of the Fund until the Custodian actually receives 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. With respect to Securities held in a Depository, except as otherwise provided in paragraph 5(b) of Article III hereof, the Custodian shall have no responsibility and shall not be liable for: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
(a) The validity of the issue of any securities purchased by or for the Corporation, the legality of the purchase thereof, or the propriety of the amount paid therefore;
(b) The legality of the issue or sale of any securities by or for the Corporation, or the propriety of the amount for which the same are sold;
(c) The legality of the issue or sale of any shares of the capital stock of the Corporation, or the sufficiency of the amount to be received therefore;
(d) The legality of the redemtion, of any shares5. of capital stock of the Corporation or the propriety of the amount to be paid therefore;
(e) The legality of the declaration of any dividend or distribution by the Corporattion, or the legality of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distribution;
(f) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed by the Corporation or
(g) The legality of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any person, firm or corporation.
E. The Custodian shall not be under any duty or obligation to talke take action to effective effect collection of any amount, 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 Securities upon which such consent 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 on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction of rereimbursement 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 payment and such failure is the reason for the non-receipt of payment.
F. 7. The Custodian may appoint one or more banking institutions 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 money 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.
(a) The Custodian will use reasonable care with respect to its obligations under this Agreement and the
(b) The Custodian shall not be liable for any loss which results from (i) the general risk of investing, or (ii) investing or holding Securities and money in a particular country including, but not limited to, losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; currency restrictions, devaluations or fluctuations; or market conditions which prevent the orderly execution of securities transactions or affect the value of Securities or money.
(c) Neither party shall be liable to the other for any loss due to forces beyond its control including, but not limited to, strikes or work stoppages, acts of war or terrorism, insurrection, revolution, nuclear fusion, fission or radiation, or acts of God.
9. The Custodian shall not be under any duty or obligation (a) to ascertain whether any securities Securities at any time delivered to, or 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 transactions by the Fund, whether or 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 such expenses with respect to a Series incurred by the Custodian in the performance of its duties under this Agreement against any money specifically allocated to such Series. The Custodian shall also be entitled to charge against any money held by it for the account of a Series the Corporationamount of any loss, are such as may properly damage,
11. The Custodian shall be held entitled to rely upon any Certificate, notice or other instrument in writing, Oral Instructions, or Written Instructions received by the Corporation under Custodian and reasonably believed by the provisions 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 its Articles business of Incorporationthe 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.
G. 12. The Corporation 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 - 38 - 39 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 and hold harmless the Custodian against and its nominee save the Custodian harmless from all taxesliability, charges,assessmentsclaims, claims losses and liabilities incurred demands whatsoever, including attorney's fees, howsoever arising out of, or assessed against it related to, the Custodian's performance of its obligations under this Agreement, except for any such liability, claim, loss and demand arising out of the Custodian's own negligence, bad faith, or willful misconduct or that of its nominee in connection with officers, employees, or agents.
17. Subject to the performance foregoing provisions of this Agreement, the Custodian shall deliver and receive Securities, and receipts with respect to such Securities, and shall make and receive payments only in accordance with the customs prevailing from time to time among brokers or dealers in such Securities and, except such as may arise from its otherwise be provided by this Agreement or its nominee's own negligent actionas may be in accordance with such customs, negligent failure to act or willful misconductshall make payment for Securities only against delivery thereof and deliveries of Securities only against payment therefor.
18. The Custodian is authorized to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders shall have no duties or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, responsibilities whatsoever except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation shall be security therefore.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.duties and
Appears in 1 contract
Samples: Custody Agreement (Morgan Stanley Dean Witter Equity Fund)
Concerning the Custodian. A. The 1. Except as hereinafter provided, or as provided in Article XIII neither the Custodian nor its nominee shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 damage, including counsel fees, resulting from its action or omission to act or otherwise otherwise, either hereunder or under any Margin Account Agreement, except for any such logs loss or damage arising out ofits of its own negligence or willful misconduct. In no event shall the Custodian be liable to the Fund or any third party for special, indirect or consequential damages or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. The Custodian may 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 Corporation Fund or of its own counsel with respect to questions counsel, at the expense of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and 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.
D. 2. Without limiting the generality of the foregoing foregoing, the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for:
(a) The validity of the issue of any securities purchased Securities purchased, sold, or written by or for the CorporationFund, the legality of the purchase purchase, sale or writing thereof, or the propriety of the amount paid thereforeor received therefor;
(b) The legality of the issue sale or sale redemption of any securities by or for the CorporationShares, or the propriety of the amount for which the same are soldto be received or paid therefor;
(c) The legality of the issue declaration or sale payment of any shares of dividend by the capital stock of the Corporation, or the sufficiency of the amount to be received thereforeFund;
(d) The legality of any borrowing by the redemtion, of any shares. of capital stock of the Corporation or the propriety of the amount to be paid thereforeFund using Securities as collateral;
(e) The legality of any loan of portfolio Securi ties, nor shall the declaration 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 X of this Agreement makes payment to it of any dividend dividends or distribution by interest which are payable to or for the Corporattion, or the legality account of the issuance Fund during the period of any shares such loan or at the termination of such loan, provided, however, that the Corporation's capital stock Custodian shall promptly notify the Fund in payment of any stock dividend the event that such dividends or distribution;interest are not paid and received when due; or
(f) The legality 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 delivery Custodian's receipt or non-receipt of any securities held such payment.
3. The Custodian shall not be liable for, or considered to be the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the Corporation payment of money, received by it 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 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 purpose failure of collateralizing the obligation Depository to collect, or for the Corporation to repay any moneys borrowed late collection or late crediting by the Corporation or
(g) The legality 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 delivery of Fund, except that the Custodian shall not be under any securities held for the Corporation for the purpose of loaning said securities obligation to appear in, prosecute or defend any action suit or proceeding in respect to any personSecurities held by the Depository which in its opinion may involve it in expense or liability, firm or corporationunless indemnity satisfactory to it against all expense and liability be furnished as often as may be required.
E. 5. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction of rereimbursement reimbursement of its costs and expenses in connection with any such action.
F. 7. The Custodian may in addition to the employment of Foreign Sub-Custodians pursuant to Article XIII 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 Securities at any time delivered to, or held by it or by any Foreign Sub-Custodian, 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 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 Corporationtime of the charge to the aggregate net asset value of all Series at that time) of the amount of any loss, are such as may properly damage, liability or expense, including counsel fees, for which it shall be held by the Corporation entitled to reimbursement under the provisions of its Articles this Agreement. The expenses for which the Custodian shall be entitled to reimbursement hereunder shall include, but are not limited to, the expenses of Incorporationsub-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.
G. 10. The Corporation 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 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.
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 and hold harmless the Custodian against and its nominee save the Custodian harmless from all taxesliability, charges,assessmentsclaims, claims losses and liabilities demands whatsoever, including attorney's fees, howsoever arising or incurred because of or assessed 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 XIII 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 it or its nominee payment, delivery of such Securities and receipt of payment therefor may not be completed simultaneously. The Fund assumes all responsibility and li ability for all credit risks involved in connection with the performance 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 responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, except such as may arise from its and no covenant or its nominee's own negligent action, negligent failure to act or willful misconduct. The Custodian is authorized to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation obligation shall be security thereforeimplied in this Agreement against the Custodian.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Samples: Custody Agreement (Principal Capital Accumulation Fund Inc)
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits 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 (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Fund on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporationusing Securities as collateral.
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Fund under the provisions of its the Articles of IncorporationIncorporation and the Fund's ByLaws.
G. The Corporation 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 indemnify and hold harmless pay to the Custodian and its nominee from all taxessuch compensation as shall be determined pursuant to Appendix D attached hereto, charges,assessments, claims and liabilities incurred or assessed against it or its nominee in connection with the performance of this Agreement, except shall be determined pursuant to amendments to such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. Appendix D. The Custodian is authorized shall be entitled to charge against any account of the Corporation for such items. In the event of any advance of funds for any purpose made money held by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held it for the account of the Corporation 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 security therefore.
H. In entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the event thatCustodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, pursuant to this Agreementwhether by hand delivery, facsimile or otherwise, on the Corporation instructs same business day on which Oral Instructions were given. The Fund agrees that the failure of the Custodian to pay for securities on behalf receive such confirming instructions shall in no way affect the validity of the Corporationtransactions 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 Oral Instructions given to the Custodian hereunder concerning such transactions.
J. The Custodian will (i) 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 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 period prescribed by applicable Federal statute or regulation all records required to be so preserved. All such books and records shall be the property of the Fund, and shall be open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Corporation Custodian shall send to the Fund any report received on the systems of internal accounting control of the Custodian, or its agents or sub-custodians, as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no responsibility for the management, 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 performance of its duties as custodian shall not be deemed to be a recommendation to the Fund's depositors or others of shares of the Fund as an investment.
M. The Custodian shall take all reasonable action, that the Fund may from time to time request, to assist the Fund in obtaining favorable opinions from the Fund's independent accountants, with respect to the Custodian's activities hereunder, in connection with the preparation of the Fund's Form N-2, Form N-SAR, or other annual reports to the Securities and Exchange Commission.
N. The Fund hereby pledges to and grants its to the Custodian a security interest in such securitiesany Fund Assets to secure the payment of any liabilities of the Fund to the Custodian, until whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian has been reimbursed Custodian. This pledge is in addition to any other pledge of collateral by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged Fund to the Custodian for purposes of the requirements of the Uniforn Commercial CodeCustodian.
Appears in 1 contract
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits 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 (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Fund on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral;
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Fund under the provisions of its the Articles of IncorporationIncorporation and the Fund's By-Laws.
G. The Corporation 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 indemnify and hold harmless pay to the Custodian and its nominee from all taxessuch compensation as shall be determined pursuant to Appendix D attached hereto, charges,assessments, claims and liabilities incurred or assessed against it or its nominee in connection with the performance of this Agreement, except as shall be determined pursuant to amendments to such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. Appendix D. The Custodian is authorized shall be entitled to charge against any account of the Corporation for such items. In the event of any advance of funds for any purpose made money held by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held it for the account of the Corporation 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 security therefore.
H. In entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the event thatCustodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, pursuant to this Agreementwhether by hand delivery, facsimile or otherwise, on the Corporation instructs same business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to pay for securities on behalf receive such confirming instructions shall in no way affect the validity of the Corporationtransactions 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) 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 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 regulation all records required to be so preserved. All such books and records shall be the property of the Fund, and shall be open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Corporation Custodian shall send to the Fund any report received on the systems of internal accounting control of the Custodian, or its agents or sub-custodians, as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no responsibility for the management, 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 performance of its duties as custodian shall not be deemed to be a recommendation to the Fund's depositors or others of shares of the Fund as an investment.
M. The Custodian shall take all reasonable action, that the Fund may from time to time request, to assist the Fund in obtaining favorable opinions from the Fund's independent accountants, with respect to the Custodian's activities hereunder, in connection with the preparation of the 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 its to the Custodian a security interest in such securitiesany Fund Assets to secure the payment of any liabilities of the Fund to the Custodian, until whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian has been reimbursed Custodian. This pledge is in addition to any other pledge of collateral by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged Fund to the Custodian for purposes of the requirements of the Uniforn Commercial CodeCustodian.
Appears in 1 contract
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits 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 (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into,, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Fund on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral;
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (iI) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement reimbursement of its costs and expenses in 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 account of the Corporation, are such as may properly be held by the Corporation under the provisions of its Articles of Incorporation.
G. The Corporation agrees to indemnify and hold harmless the Custodian and its nominee from all taxes, charges,assessments, claims and liabilities incurred or assessed against it or its nominee 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. The Custodian is authorized to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation shall be security therefore.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Concerning the Custodian. A. The Except as otherwise provided herein, the Custodian shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 no be liable for any loss or damage resulting from its action or omission to act or otherwise otherwise, except for any such logs loss or damage arising out ofits 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 (including reasonable attorneys' fees) 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 to counsel, at the Corporation or expense of its own counsel with respect to questions of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such the advice or opinionopinion of counsel. The provisions under this paragraph shall survive the termination of this Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of the Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of the Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the CorporationFund, or the sufficiency of the amount to be received thereforetherefor;
(d4.) The legality of the redemtion, redemption of any shares. of capital stock shares of the Corporation Fund, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f6.) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed borrowing by the Corporation or
(g) The legality Fund on behalf of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any personFund, firm or corporation.using Securities as collateral;
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement 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 Securities at any time delivered to or held by it for the account of the Corporation, Fund are such as properly may properly be held by the Corporation Fund under the provisions of its the Articles of IncorporationIncorporation and the Fund's By-Laws.
G. The Corporation 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 indemnify and hold harmless pay to the Custodian and its nominee from all taxessuch compensation as shall be determined pursuant to Appendix D attached hereto, charges,assessments, claims and liabilities incurred or assessed against it or its nominee in connection with the performance of this Agreement, except as shall be determined pursuant to amendments to such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. Appendix D. The Custodian is authorized shall be entitled to charge against any account of the Corporation for such items. In the event of any advance of funds for any purpose made money held by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held it for the account of the Corporation 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 security therefore.
H. In entitled to rely upon any Oral Instructions and any Written Instructions. The Fund agrees to forward to the event thatCustodian Written Instructions confirming Oral Instructions in such a manner so that such Written Instructions are received by the Custodian, pursuant to this Agreementwhether by hand delivery, facsimile or otherwise, on the Corporation instructs same business day on which such Oral Instructions were given. The Fund agrees that the failure of the Custodian to pay for securities on behalf receive such confirming instructions shall in no way affect the validity of the Corporationtransactions 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) 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 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 regulation all records required to be so preserved. All such books and records shall be the property of the Fund, and shall be open to inspection and audit at reasonable times and with prior notice by Officers and auditors employed by the Fund.
K. The Corporation Custodian shall send to the Fund any report received on the systems of internal accounting control of the Custodian, or its agents or sub-custodians as the Fund may reasonably request from time to time.
L. The Custodian performs only the services of a custodian and shall have no responsibility for the management, 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 performance of its duties as custodian shall not be deemed to be a recommendation to the Fund's depositors or others of shares of the Fund as an investment.
M. The Custodian shall take all reasonable action, that the Fund may from time to time request, to assist the Fund in obtaining favorable opinions from the Fund's independent accountants, with respect to the Custodian's activities hereunder, in connection with the preparation of the 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 its to the Custodian a security interest in such securitiesany Fund Assets to secure the payment of any liabilities of the Fund to the Custodian, until whether acting in its capacity as Custodian or otherwise, or on account of money borrowed from the Custodian has been reimbursed Custodian. This pledge is in addition to any other pledge of collateral by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged Fund to the Custodian for purposes of the requirements of the Uniforn Commercial CodeCustodian.
Appears in 1 contract
Concerning the Custodian. A. The 1. Except as hereinafter provided, neither the Custodian nor its nominee shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 damage, including counsel fees, resulting from its action or omission to act or otherwise otherwise, either hereunder or under any Margin Account Agreement, except for any such logs loss or damage arising out ofits of its own negligence or willful misconduct. In no event shall the Custodian be liable to the Fund or any third party for special, indirect or consequential damages or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. The Custodian may 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 Corporation Fund or of its own counsel with respect to questions counsel, at the expense of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and 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.
D. 2. Without limiting the generality of the foregoing foregoing, the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for:
(a) The validity of of. the issue of any securities purchased Securities purchased, sold, or written by or for the CorporationFund, the legality of the purchase purchase, sale or writing thereof, or the propriety of the amount paid thereforeor received therefor;
(b) The legality of the issue sale or sale redemption of any securities by or for the CorporationShares, or the propriety of the amount for which the same are soldto be received or paid therefor;
(c) The legality of the issue declaration or sale of any shares of the capital stock of the Corporation, or the sufficiency of the amount to be received therefore;
(d) The legality of the redemtion, of any shares. of capital stock of the Corporation or the propriety of the amount to be paid therefore;
(e) The legality of the declaration payment of any dividend or distribution by the Corporattion, or the legality of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed by the Corporation or
(g) The legality of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any person, firm or corporation.
E. The Custodian shall not be under any duty or obligation to talke action to effective collection of any amount, if the securities upon which such consent is payable are in default, or if payment is refused after due on presentation, unless and until (i) it shall be derected to take such action by Written Instruction, and (ii) it shall, be assured to its satisfaction of rereimbursement 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 account of the Corporation, are such as may properly be held by the Corporation under the provisions of its Articles of Incorporation.
G. The Corporation agrees to indemnify and hold harmless the Custodian and its nominee from all taxes, charges,assessments, claims and liabilities incurred or assessed against it or its nominee 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. The Custodian is authorized to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation shall be security therefore.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Concerning the Custodian. A. The Custodian shall be paid Except as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between otherwise provided herein, the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 otherwise, except for any such logs loss or damage arising out ofits of its own negligence or willful misconduct. The Corporation shall defend, indemnify and hold harmless the Custodian may apply for and obtain its directors, officers, employees and agents with respect to any loss, claim, liability or cost (including reasonable attorneys' fees) arising or alleged to arise from or relating to the advice and opinion Corporation's duties hereunder or any other action or inaction of counsel to the Corporation or its Directors, officers, employees or agents, except such as may arise from the negligent action, omission, willful misconduct or breach of its own counsel with respect to questions this Agreement by the Custodian. The provisions under this paragraph shall survive the termination of law, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such advice or opinionthis Agreement.
D. B. Without limiting the generality of the foregoing foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no duty or obligation to inquire into, and shall not be liable for:
(a1.) The validity of the issue of any securities Securities purchased by or for the Corporationaccount of a Fund, the legality of the purchase thereof, or the propriety of the amount paid thereforetherefor;
(b2.) The legality of the issue or sale of any securities Securities by or for the Corporationaccount of a Fund, or the propriety of the amount for which the same are sold;
(c3.) The legality of the issue or sale of any shares of the capital stock of the Corporationa Fund, or the sufficiency of the amount to be received therefore;the
(d4.) The legality of the redemtion, redemption of any shares. shares of capital stock of the Corporation a Fund, or the propriety of the amount to be paid thereforetherefor;
(e5.) The legality of the declaration or payment of any dividend or distribution by the Corporattion, or the legality a Fund in respect of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distributionFund;
(f6.) The legality of the delivery any borrowing by a Fund on behalf of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed by the Corporation or
(g) The legality of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any persona Fund, firm or corporationusing Securities as collateral.
E. C. The Custodian shall not be under any duty or obligation to talke take action to effective effect collection of any amount due to a 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 Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction (including prepayment thereof) of rereimbursement reimbursement of its costs and expenses in connection with any such action.
F. . E. The Corporation acknowledges and hereby authorizes the Custodian to hold Securities through its various agents described in Appendix B annexed hereto. The Corporation hereby represents that such authorization has been duly approved by the Board of Directors of the Corporation 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 Corporation 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 Funds. The Custodian shall not be relieved of any obligation or liability under any duty or obligation to ascertain whether any securities at any time delivered to or held by it for the account of the Corporation, are such as may properly be held by the Corporation under the provisions of its Articles of Incorporation.
G. The Corporation agrees to indemnify and hold harmless the Custodian and its nominee from all taxes, charges,assessments, claims and liabilities incurred or assessed against it or its nominee this Agreement in connection with the performance appointment or activities of this Agreementsuch 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, 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 Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation shall be security therefore.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.promptly forward
Appears in 1 contract
Concerning the Custodian. A. The 1. Except as hereinafter provided, or as provided in Article XVI, neither the Custodian nor its nominee shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 damage, including counsel fees, resulting from its action or omission to act or otherwise otherwise, either hereunder or under any Margin Account Agreement, except for any such logs loss or damage arising out ofits of its own negligence or willful misconduct. In no event shall the Custodian be liable to the Fund or any third party for special, indirect or consequential damages or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. The Custodian may 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 Corporation Fund, at the expense of the Fund or of its own counsel with respect to questions of lawat its own expense, and shall be fully protected with respect to anything done or omitted by it in good faith and in conformity with such advice or opinion. The Custodian shall be liable to the Fund for any loss or damage constituting direct money damages 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 officers, employees or agents.
D. 2. Without limiting the generality of the foregoing foregoing, the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for:
(a) The the validity of the issue of any securities purchased Securities purchased, sold, or written by or for the CorporationFund, the legality of the purchase purchase, sale or writing thereof, or the propriety of the amount paid thereforeor received therefor;
(b) The the legality of the issue sale or sale redemption of any securities by or for the CorporationShares, or the propriety of the amount for which the same are sold;
(c) The legality of the issue or sale of any shares of the capital stock of the Corporation, or the sufficiency of the amount to be received therefore;
(d) The legality of the redemtion, of any shares. of capital stock of the Corporation or the propriety of the amount to be received or paid thereforetherefor;
(c) the legality of the declaration or payment of any dividend by the Fund;
(d) the legality of any borrowing by the Fund using Securities as collateral;
(e) The legality of the declaration of any dividend or distribution by the Corporattion, or the legality of any loan of portfolio Securities, nor shall the issuance 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 X of this Agreement makes payment to it of any shares dividends or interest which are payable to or for the account of the Corporation's capital stock 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 payment of any stock dividend the event that such dividends or distribution;interest are not paid and received when due; or
(f) The legality 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 delivery Custodian's receipt or non-receipt of any securities held such payment.
3. The Custodian shall not be liable for, or considered to be the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the Corporation payment of money, received by it 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 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 purpose failure of collateralizing the obligation Depository to collect, or for the Corporation to repay any moneys borrowed late collection or late crediting by the Corporation or
(g) The legality 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 delivery of Fund, except that the Custodian shall not be under any securities held for the Corporation for the purpose of loaning said securities obligation to appear in, prosecute or defend any action, suit or proceeding in respect to any personSecurities held by the Depository which in its opinion may involve it in expense or liability, firm or corporationunless indemnity satisfactory to it against all expense and liability be furnished as often as may be required.
E. 5. The Custodian shall not be under any duty or obligation to talke take action to effective effect collection of any amountamount 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. However, the Custodian will notify the Fund of any such amount due to the Fund from the Transfer Agent of the Fund.
6. The Custodian shall not be under any duty or obligation to take action to effect collection of any amount if the securities Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction of rereimbursement reimbursement of its costs and expenses in connection with any such action.
F. 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 money 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 Securities at any time delivered to, or held by it or by any Foreign Sub-Custodian, 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 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 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 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 Corporationtime of the charge to the aggregate net asset value of all Series at that time) of the amount of any loss, are such as may properly damage, liability or expense, including reasonable counsel fees, for which it shall be held by the Corporation entitled to reimbursement under the provisions of its Articles this Agreement. The expenses for which the Custodian shall be entitled to reimbursement hereunder shall include, but are not limited to, the expenses of Incorporationsub-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.
G. 10. The Corporation 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, electronic communication 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 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 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.
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 and hold harmless the Custodian against and its nominee save the Custodian harmless from all taxesliability, charges,assessmentsclaims, claims losses and liabilities demands whatsoever, including reasonable attorney's fees, howsoever arising or incurred because of or assessed 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 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 it or its nominee 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 performance 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 responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, except such as may arise from its and no covenant or its nominee's own negligent action, negligent failure to act or willful misconduct. The Custodian is authorized to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation obligation shall be security thereforeimplied in this Agreement against the Custodian.
H. In the event that, pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.
Appears in 1 contract
Concerning the Custodian. A. 1. The Custodian shall be paid use reasonable care in the performance of its duties hereunder, and, except as compensation for hereinafter provided, neither the Custodian nor its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian nominee shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 damage, including counsel fees, resulting from its action or omission to act or otherwise otherwise, either hereunder or under any Margin Account Agreement, except for any such logs loss or damage arising out ofits of its own negligence negligence, bad faith, or willful misconductmisconduct or that of its officers, employees, or agents. The Custodian may 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 Corporation Fund, at the expense of the Fund, or of its own counsel with respect to questions of lawcounsel, at its own expense, and shall be fully protected with respect to anything done or omitted by it in good faith and 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.
D. Without limiting 2. Notwithstanding the generality foregoing, the Custodian shall be under no obligation to inquire into, and shall not be li- able for:
(a) The validity (but not the authenticity) of the foregoing 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, as specified in a Certificate, Oral Instructions, or 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 inquire intosee that any broker, and shall not be liable for:
(a) The validity dealer or financial institution to which portfolio Securities of the issue of any securities purchased by or for the Corporation, the legality of the purchase thereof, or the propriety of the amount paid therefore;
(b) The legality of the issue or sale of any securities by or for the Corporation, or the propriety of the amount for which the same Fund are sold;
(c) The legality of the issue or sale of any shares of the capital stock of the Corporation, or the sufficiency of the amount to be received therefore;
(d) The legality of the redemtion, of any shares. of capital stock of the Corporation or the propriety of the amount to be paid therefore;
(e) The legality of the declaration of any dividend or distribution by the Corporattion, or the legality of the issuance of any shares of the Corporation's capital stock in payment of any stock dividend or distribution;
(f) The legality of the delivery of any securities held for the Corporation for the purpose of collateralizing the obligation for the Corporation to repay any moneys borrowed by the Corporation or
(g) The legality of the delivery of any securities held for the Corporation for the purpose of loaning said securities to any person, firm or corporation.
E. The Custodian shall not be under any duty or obligation to talke action to effective collection of any amount, if the securities upon which such consent is payable are in default, or if payment is refused after due on presentation, unless and until (i) it shall be derected to take such action by Written Instruction, and (ii) it shall, be assured to its satisfaction of rereimbursement 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 account of the Corporation, are such as may properly be held by the Corporation under the provisions of its Articles of Incorporation.
G. The Corporation agrees to indemnify and hold harmless the Custodian and its nominee from all taxes, charges,assessments, claims and liabilities incurred or assessed against it or its nominee 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. The Custodian is authorized to charge any account of the Corporation for such items. In the event of any advance of funds for any purpose made by the Custodian resulting front orders or instructions of the Corporation, or in the event that the Custodian or its -nominee shall incur or be assessed any taxes, charges, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for the account of the Corporation shall be security therefore.
H. In the event that, lent pursuant to this Agreement, the Corporation instructs the Custodian to pay for securities on behalf of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Code.to
Appears in 1 contract
Concerning the Custodian. A. The 1. Except as hereinafter provided, or as provided in Article XVI neither the Custodian nor its nominee shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties.
B. The Custodian shall not be liable for any action taken in good faith upon any instructions given in writing pursuant to the terms hereof, any Written Instructions as herein defined or certified copy of any resolution of the Board of Directors or 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 damage, including reasonable 34 counsel fees, resulting from its action or omission to act or otherwise otherwise, either hereunder or under any Margin Account Agreement, except for any such logs loss or damage arising out ofits of its own negligence or willful misconduct. The Custodian may agrees to indemnify and hold harmless the Fund and the Fund's Trustees and officers to the extent described below against any loss as a result of any breach or violation of this Agreement by the Custodian or its officers, employees and agents or its nominees, resulting from their 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 Corporation Fund, or of its own counsel with respect to questions counsel, at the expense of lawthe Fund, and shall be fully protected with respect to anything done or omitted by it in good faith and 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. Notwithstanding the foregoing, or any other provision contained in this Agreement, in no event shall the Custodian be liable to the Fund, its Trustees or officers, or any third party, for special, indirect or consequential damages, or lost profits or loss of business, arising under or in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action.
D. 2. Without limiting the generality of the foregoing foregoing, the Custodian shall be under no duty or obligation to inquire into, and shall not be liable for:
(a) The the validity of the issue of any securities purchased Securities purchased, sold, or written by or for the CorporationFund, the legality of the purchase purchase, sale or writing thereof, or the propriety of the amount paid thereforeor received therefor;
(b) The the legality of the issue sale or sale redemption of any securities by or for the CorporationShares, or the propriety of the amount for which the same are sold;
(c) The legality of the issue or sale of any shares of the capital stock of the Corporation, or the sufficiency of the amount to be received therefore;
(d) The legality of the redemtion, of any shares. of capital stock of the Corporation or the propriety of the amount to be received or paid thereforetherefor;
(c) the legality of the declaration or payment of any dividend by the Fund;
(d) the legality of any borrowing by the Fund using Securities as collateral;
(e) The legality of the declaration of any dividend or distribution by the Corporattion, or the legality of any loan of portfolio Securities, nor shall the issuance 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 35 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 shares dividends or interest which are payable to or for the account of the Corporation's capital stock 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 payment of any stock dividend the event that such dividends or distribution;interest are not paid and received when due; or
(f) The legality 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 delivery Custodian's receipt or non-receipt of any securities held such payment
3. The Custodian shall not be liable for, or considered to be the Custodian of, any money, whether or not represented by any check, draft, or other instrument for the Corporation payment of money, received by it 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 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 purpose failure of collateralizing the obligation Depository to collect, or for the Corporation to repay any moneys borrowed late collection or late crediting by the Corporation or
(g) The legality 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 delivery of Fund, except that the Custodian shall not be under any securities held for the Corporation for the purpose of loaning said securities obligation to appear in, prosecute or defend any action, suit or proceeding in respect to any personSecurities held by the Depository which in its opinion may involve it in expense or liability, firm or corporationunless indemnity satisfactory to it against all expense and liability be furnished as often as may be required.
E. 6. The Custodian shall not be under any duty or obligation to talke take action to effective effect collection of any amount, amount if the securities Securities upon which such consent amount is payable are in default, or if payment is refused after due on demand or presentation, unless and until (i) it shall be derected directed to take such action by Written Instruction, a Certificate and (ii) it shall, shall be assured to its satisfaction of rereimbursement reimbursement of its costs and expenses in connection with any such action.
F. 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 money at any time owned by a Series, 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 Securities at any time delivered to, or held by it or by any Foreign Sub-Custodian, 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 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 Fund represents that the Administrator has agreed to pay such compensation and expenses promptly upon receipt of statements therefor, and hereby directs the Custodian to (i) send all statements for compensation to its attention care of FDISG at the following address: FDISG Services, Inc., 3200 Xxxxxxx Xxxxx, Xxxx xx Xxxxxxx, XX 00000-0000, Xxtention: Mr. Xxxxx Xxxxxxx, Senior Vice President, and (ii) accept all payments made by the Administrator in the Fund's name as if such payments were made directly by the Fund. The Fund shall pay to FDISG fees for services (including custodian services provided by the Custodian) in accordance with the Services Agreement. The Custodian's compensation for services rendered hereunder is set forth in a separate agreement between the Custodian and FDISG. Should FDISG fail to pay or remit such compensation to the Custodian within 20 days of the date the same is due and payable, Custodian shall notify the Fund. If such payment or remittance is not received from FDISG within 15 days of such notice, then the Custodian will be entitled to debit the Custody Account directly for such compensation. The Custodian may charge compensation with respect to which it has properly sent a notice to the Fund with respect to a Series, as provided in the preceding sentence, 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 or the Administrator instructs the 37 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 Corporationtime of the charge to the aggregate net asset value of all Series at that time) of the amount of any loss, are such as may properly damage, liability or expense, including counsel fees, for which it shall be held by the Corporation entitled to reimbursement under the provisions of its Articles this Agreement. The expenses for which the Custodian shall be entitled to reimbursement hereunder shall include, but are not limited to, the expenses of Incorporationsub-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.
G. 10. The Corporation 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 as provided for this Agreement. The Fund agrees to forward or cause the Administrator 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 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. 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 and hold harmless the Custodian against and its nominee save the Custodian harmless from all taxesliability, charges,assessmentsclaims, claims losses and liabilities demands whatsoever, including attorney's fees, howsoever arising or incurred because of or assessed 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. For any legal proceeding giving rise to the indemnification set forth above in this paragraph, the Fund shall be entitled to defend or prosecute any claim in the name of the 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.
15. Subject to the foregoing provisions of this Agreement, including, without limitation, those contained in Article XVI 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 it or its nominee 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 performance Custodian's delivery of this Agreement, except such as may arise from its Securities pursuant to Certificates or its nominee's own negligent action, negligent failure to act or willful misconduct. The Custodian is authorized to charge any account instructions of the Corporation for such itemsFund or the Administrator which responsibility and liability shall continue until final payment in full has been received by the Custodian.
16. In the event of any advance of funds for any purpose made the Custodian is advised by the Custodian resulting front orders or instructions Fund that the Fund is no longer utilizing the services of the CorporationAdministrator, or in the event that then the Custodian shall furnish or its -nominee give to the Fund the statements or notices described above as to be furnished or given to the Administrator.
17. The Custodian shall incur have no duties or be assessed any taxes, charges, assessments, claims or liabilities responsibilities whatsoever except such duties and responsibilities as are specifically set forth in connection with the performance of this Agreement, except such as may arise from its and no covenant or its nominees own negligent action, negligent failure to act or willful misconduct, any property at any time held for obligation shall be implied in this Agreement against the account Custodian. Without 39 -38- limiting the generality of the Corporation foregoing, the Custodian shall be security therefore.
H. In have no duties or responsibilities by reason of any terms or provisions in the event that, pursuant to this Services Agreement, the Corporation instructs and if such Services Agreement shall cease to be in effect the Custodian to pay for securities on behalf shall have no additional duties hereunder, except as provided in the preceding paragraph 16 of the Corporation, The Corporation hereby grants its to the Custodian a security interest in such securities, until the Custodian has been reimbursed by the Corporation in immediately available funds. The Corporation's written instructions designating the securities to be paid for shall be considered the requisite description and designation of the securities pledged to the Custodian for purposes of the requirements of the Uniforn Commercial Codethis Article.
Appears in 1 contract
Samples: Custody Agreement (Roulston Funds)
