Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages. (b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files. (c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it. (d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement. (e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan. (f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian. (g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement. (h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement. (i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties. (j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 36 contracts
Samples: Indenture (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2006-D), Indenture (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2005-G), Indenture (CWHEQ Revolving Home Equity Loan Asset Backed Notes, Series 2005-H)
Limitation of Liability. (a) The Custodian undertakes to perform only Absent the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any Subadviser’s breach of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their or the willful misconduct, bad faith, gross negligence, willful misconductor reckless disregard of the obligations or duties hereunder on the part of the Subadviser, or bad faith. The Custodian and its officers, directors, employeespartners, agents, employees and agents will controlling persons, the Subadviser shall not be liable for any consequential, indirect, punitiveact or omission in the course of, or special damages.
(b) Except as provided connected with, rendering services hereunder or for any losses that may be sustained in the purchase, holding or sale of any position; provided, however, that the Subadviser shall be responsible for, and shall indemnify and hold the Trust and the Adviser and each of their respective directors or trustees, members, officers, employees and shareholders, and each person, if any, who controls the Trust or the Adviser within the meaning of Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability 15 of the Mortgage Loans Securities Act of 1933, as amended (the “Securities Act”), harmless against, any and all Losses (as defined below) arising out of or any resulting from a “Trade Error” (as defined in the compliance policies and procedures of the documents in Trust and/or the Mortgage Files.
(cSubadviser), as the same may be amended from time to time) caused by the negligent action or negligent omission of the Subadviser or its agent. The Custodian need not expend or risk its own funds or otherwise incur financial liability in Adviser agrees to provide prior written notice to the performance Subadviser of any material changes to the definition of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized Trade Error becoming effective with respect to all matters pertaining the Designated Series unless, in the reasonable discretion of the Adviser, such change must become effective earlier due to any applicable law, rule, regulation or court order. It is acknowledged and agreed that any Trade Error that results in a gain to the Series shall inure to the benefit of the Series. For the avoidance of doubt, it is acknowledged and agreed that the Series is a third party beneficiary of the indemnity granted in this Section 10, and the indemnity is intended to cover claims by the Series, the Trust (on behalf of the Series), or the Adviser against the Subadviser for recovery pursuant to this Agreement and its duties under this Agreementsection.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 34 contracts
Samples: Subadvisory Agreement (Virtus Opportunities Trust), Subadvisory Agreement (Virtus Strategy Trust), Subadvisory Agreement (Virtus Strategy Trust)
Limitation of Liability. (a) The Custodian undertakes to perform only To the obligations specified in this Agreement. The Issuerfullest extent permitted by applicable law, the Owner Asset Representations Reviewer shall not be under any liability to the Issuing Entity, the Servicer, or the Indenture Trustee, Master Serviceror any other Person for any action taken or for refraining from the taking of an action in its capacity as Asset Representations Reviewer pursuant to this ARR Agreement (including taking any action or for refraining from the taking of any action in connection with conducting or refraining from conducting a subsequent Review as permitted by Section 3.09 and Section 3.11 hereof), and Indenture Trustee acknowledge that no or for errors in judgment, whether arising from express or implied obligations exist duties under this ARR Agreement. Neither ; provided, however, that this provision shall not protect the Custodian nor Asset Representations Reviewer against any liability which would otherwise by imposed by reason of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith, or negligence in the performance of its duties or by reason of reckless disregard of its obligations and duties hereunder. The Custodian and its officers, directors, employees, and agents In no event will not the Asset Representations Reviewer be liable for any consequentialspecial, indirectindirect or consequential loss or damage (including loss of profit) even if the Asset Representations Reviewer has been advised of the likelihood of the loss or damage and regardless of the form of action. The Asset Representations Reviewer and any director, punitiveofficer, employee, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian agent may rely on and shall be protected in acting in good faith on any notice document of any kind prima facie properly executed and submitted by any Person respecting any matters arising hereunder. Subject to Section 3.14, the Asset Representations Reviewer shall not be under any obligation to appear in, prosecute or other communication received by it that it reasonably believes defend any legal action which is not incidental to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest ARR Agreement which in its reasonable opinion may involve it in any Mortgage Loanexpense or liability.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 28 contracts
Samples: Asset Representations Review Agreement (John Deere Owner Trust 2024-C), Asset Representations Review Agreement (John Deere Owner Trust 2024-B), Asset Representations Review Agreement (John Deere Owner Trust 2024-B)
Limitation of Liability. (a) The Custodian undertakes to perform only In connection with the Custodian’s timely performance of its obligations specified in this Agreement. The Issuerand duties hereunder, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor shall not be liable to any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, person for any damages loss, claim, damage, liability or expenses expense resulting from or arising out of any act or failure to act by it, other than for any loss, claim, damage, liability or expense arising out of the services performed under this Agreement other than damages that result from their gross negligence, Custodian’s willful misconduct, gross negligence or bad faith. The obligations of the Custodian and its officers, directors, employees, and agents will not shall be liable for any consequential, indirect, punitive, or special damagesdetermined solely by the express provision of this Agreement.
(b) Except as provided in Section 2specifically set forth herein, the Custodian makes shall be under no warranty duty or representation and has no responsibility obligation to inspect, review or examine the Receivables or Receivable Files to determine the contents thereof or that such contents are genuine, enforceable or appropriate for the completeness, validity, sufficiency, value, genuineness, ownership, represented purpose or transferability of the Mortgage Loans or any of the documents in the Mortgage Filesthat they are other than what they purport to be on their face.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreementmay rely, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting or refraining from acting, in good faith on each case, in accordance with the terms of this Custodian Agreement, and need not verify the accuracy of, (i) any notice or other communication received by it that it written instructions from any persons the Custodian reasonably believes to be authorized to give such instructions and who shall only be persons the Custodian believes in good faith to be authorized representatives, and (ii) any written instruction, notice, order, request, direction, certificate, opinion or other instrument or document reasonably believed by the Custodian to be genuine and duly to have been signed and presented by the proper party or parties, which shall mean signature and presentation by authorized representatives whether such presentation is by personal delivery, express delivery or facsimile.
(d) The Custodian may consult with respect counsel with regard to all matters pertaining to this Agreement and its duties under legal questions arising out of or in connection with this Agreement, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Custodian in reliance, in good faith, and in accordance therewith.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, adequacy or perfection of any lien on upon, or security interest in in, any Mortgage LoanReceivable or Receivable File purported to be granted at any time pursuant to the Indenture.
(f) Any other provision of this Agreement Notwithstanding anything to the contrary notwithstandingherein, the Custodian shall have no notice of, and shall not be bound byliable for any delays in performance for causes beyond its control, any other document including, but not limited to, fire, flood, epidemic, unusually severe weather, strike, acts of the Holding Trust or agreement executed the Servicer, restriction by civil or delivered military authority in connection withtheir sovereign or contractual capacities, transportation failure, or intended inability to control obtain labor. In the event of any part ofsuch delay, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian performance shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as extended for so long as the Indenture Trustee has provided a copy such period of the document or agreement to the Custodiandelay.
(g) The Custodian shall have only be under no responsibility or duty with respect to the obligations expressly set forth disposition of any Receivable or Receivable File while such Receivable or Receivable File are not in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assignsits possession. If the Custodian shall reasonably request instructions from the Indenture Trustee with respect to any provision of this Agreement implies or requires that act, action or forbearance be taken by a party, but is silent as to which party has the duty failure to act or in connection with this Custodian Agreement, the Custodian shall be entitled to refrain from actingtaking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Indenture Trustee, without incurring any liability therefor to the parties agree Indenture Trustee or any other person; provided that the Custodian shall not be at all times maintain custody of the party required Receivable Files delivered to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action it (except as expressly provided in otherwise required by this Custodian Agreement) and otherwise comply with its obligations thereunder.
(h) Nothing in this Agreement In no event shall impose on each of the Custodian any duty to qualify to do business in any jurisdictionparties hereto or its directors, other than (i) any jurisdiction where any Mortgage File is or may managers, affiliates, officers, agents, and employees be held liable for any special, indirect, punitive or consequential damages (including lost profits) resulting from any action taken or omitted to be taken by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property it or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreementthem hereunder.
(i) The Custodian may execute Indenture Trustee shall not (i) have any of its duties under this Agreement through or obligations hereunder except those expressly set forth herein or (ii) be subject to any of its agents, attorneys-in-fact, fiduciary or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those implied duties.
(j) No discretionary, permissive right, nor privilege of the Custodian shall be deemed or construed as a duty or obligation.
(k) The Custodian shall not be held responsible for delays the acts or failures in performance resulting from acts beyond its control. Acts beyond its control include acts omissions of Godthe Seller, strikesServicer, lockoutsIssuer, riotsHolding Trust, acts of war or terrorismIndenture Trustee, epidemicsBackup Servicer, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakesOwner Trustee, or any other disastersparty to the Basic Documents, and may assume performance of such parties absent written notice or actual knowledge of a Responsible Officer of the Custodian to the contrary.
(l) The Custodian shall not be charged with knowledge of any event or information, including any Default or Event of Default, unless a Responsible Officer of the Custodian has actual knowledge or receives written notice of such event or information. Absent actual knowledge or receipt of written notice in accordance with this Section, the Custodian may conclusively assume that no such event has occurred. The Custodian shall have no obligation to inquire into, or investigate as to, the occurrence of any such event (including any Default or Event of Default). For purposes of determining the Custodian’s responsibility and liability hereunder, whenever reference is made in the Basic Documents to any event (including, but not limited to, an Event of Default), such reference shall be construed to refer only to such event of which the Custodian has received notice or has actual knowledge as described in this Section. The Custodian’s receipt or delivery of any reports or other information publicly available does not constitute actual or constructive knowledge or notice to the Custodian unless the Custodian has an obligation to review its content. Knowledge of the Custodian shall not be attributed or imputed to Exeter’s other roles in the transaction, and knowledge of such other role shall not be attributed or imputed to each other or to the Custodian (in each case, other than instances where such roles are performed by the same group, department or division within Exeter) or any affiliate, line of business or other division of Exeter (and vice versa).
(m) In the absence of bad faith on its part, the Custodian may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Custodian and conforming to the requirements of the Basic Documents.
(n) The Custodian may conclusively rely on any document believed by it to be genuine and to have been signed or presented by the proper person. The Custodian is not responsible for any document provided to it, and it need not investigate or re-calculate, evaluate, verify or independently determine the accuracy of any report, certificate, information, statement, representation or warranty or any fact or matter stated in such document and may conclusively rely as to the truth of the statements and the correctness of the opinions expressed therein.
(o) Before the Custodian acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel, the costs of which (including the Custodian’s reasonable attorney’s fees and expenses) shall be paid by the party requesting that the Custodian act or refrain from acting. The Custodian shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel unless the Custodian was negligent in such reliance.
(p) The Custodian shall not be liable for any action taken or error of judgment made in good faith by a Responsible Officer unless it is proved that the Custodian was negligent in ascertaining the pertinent facts.
(q) No provision of this Custodian Agreement shall require the Custodian to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is not assured to it.
(r) The Custodian shall be under no obligation to institute, conduct or defend any litigation under this Custodian Agreement or in relation to this Custodian Agreement, at the request, order or direction of any Person, pursuant to the provisions of this Custodian Agreement, unless such Person shall have offered to the Custodian security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby.
(s) Notwithstanding anything to the contrary in this Agreement or any other Basic Document, the Custodian shall not be required to take any action that is not in accordance with applicable laws.
(t) Neither the Custodian nor any of its officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any collateral securing the Notes, for the legality, enforceability, effectiveness or sufficiency of the Basic Documents for the creation, perfection, continuation, priority, sufficiency or protection of any of the liens, or for any defect or deficiency as to any such matters, or for monitoring the status of any lien or performance of the collateral.
(u) The Custodian shall have no responsibility for the enforceability of the Notes or the recitals contained in the Basic Documents.
(v) The Custodian shall have no duty to see to, or be responsible for the correctness or accuracy of, any recording, filing or depositing of the Indenture or any agreement referred to therein, or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refilling or re-depositing of any thereof.
Appears in 27 contracts
Samples: Custodian Agreement (Exeter Automobile Receivables Trust 2024-3), Custodian Agreement (Exeter Automobile Receivables Trust 2024-3), Custodian Agreement (Exeter Automobile Receivables Trust 2024-1)
Limitation of Liability. (a) Assignor acknowledges that Assignee is acting solely as Assignee in connection with this Assignment and not in its personal capacity. As a result, Assignor expressly agrees that Assignee, its members, officers and agents shall not be subject to any personal liability whatsoever to any person in connection with the affairs of this Assignment, except for its own misconduct knowingly and intentionally committed in bad faith, by gross negligence or in violation of law. No provision of this Agreement shall be construed to relieve the Assignee from liability for its own misconduct knowingly and intentionally committed in bad faith, by gross negligence or violation of law except that:
A. The Custodian undertakes Assignee shall not be required to perform only any duties or obligations except for the performance of such duties and obligations specified as are specifically set forth in this AgreementAssignment, and no implied covenants or obligations shall be read into this Assignment against the Assignee. In the absence of bad faith on the part of the Assignee, the Assignee may conclusively rely, as to the truth, accuracy and completeness thereof, on the statements and certificates or opinions furnished to the Assignee by the Assignor and conforming to the requirements of this Assignment. The IssuerAssignee shall not be liable for any error of judgment made in good faith. The Assignee shall not be liable with respect to any action taken or omitted to be taken by it in accordance with a written opinion of legal counsel addressed to the Assignee.
B. In connection with the foregoing, the Owner TrusteeAssignment Estate shall defend, Master Servicerindemnify and hold the Assignee and its past and present officers, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliatesmembers, officersmanagers, directors, employees, or agents counsel, agents, attorneys, parent, subsidiaries, affiliates, successors and assigns, including without limitation Xxxxxxxx, LLP (collectively, the “Assignment Estate Indemnified Persons”) harmless from and against any and all Indemnified Claims (defined below); provided, however, that the Assignment Estate shall be liable, directly or indirectly, for have no obligation hereunder to any damages or expenses arising out of Assignment Estate Indemnified Person with respect to any Indemnified Claims to the services performed under this Agreement other than damages that result extent resulting from their gross negligence, the willful misconduct, gross negligence or bad faith. violation of law of any Assignment Estate Indemnified Person.
C. The Custodian foregoing indemnification provisions shall survive any termination of this Assignment or the transactions contemplated hereby.
D. For purposes hereof, “Indemnified Claims” means any and its officersall claims, directorsdemands, employeesactions, causes of action, judgments, obligations, liabilities, losses, damages and agents will not consequential damages, penalties, fines, costs, fees, expenses and disbursements (including without limitation, fees and expenses of attorneys and other professional consultants and experts in connection with investigation or defense) of every kind, known or unknown, existing or hereafter arising, foreseeable or unforeseeable, which may be liable for any consequentialimposed upon, indirect, punitivethreatened or asserted against, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty incurred or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound paid by, any other document Assignment Estate Indemnified Person or agreement executed or delivered Assignee Indemnified Person, as applicable, at any time and from time to time, because of, resulting from, in connection with, or intended to control any part ofarising out of this Assignment, the transactions anticipated by contemplated hereby, including but not limited to economic loss, property damage, personal injury or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered death in connection with, or intended occurring on or in the vicinity of, any assets of the Assignment Estate through any cause whatsoever, any act performed or omitted to control any part ofbe performed under this Assignment, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referencedcontemplated hereby, or are incorporated any breach by referenceAssignor or Assignee, into this Agreement only as long as the Indenture Trustee has provided a copy applicable, of the document any representation, warranty, covenant, agreement or agreement to the Custodiancondition contained herein.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 22 contracts
Samples: General Assignment, General Assignment, General Assignment
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The IssuerSub-Adviser, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents or affiliates will not be liable subject to any liability to the Adviser or the Funds or their directors, officers, employees, agents or affiliates for any consequentialact, indirectomission, punitiveerror of judgment or mistake of law or for any loss suffered by the Funds, any shareholder of the Funds or the Adviser either in connection with the performance of Sub-Adviser's duties under this Agreement or its failure to perform due to events beyond the reasonable control of the Sub-Adviser or its agents, except for a loss resulting from Sub-Adviser's willful misfeasance, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability gross negligence in the performance of any its duties or by reason of its reckless disregard of its obligations and duties under this Agreement.
b) The Sub-Adviser makes no representation or warranty, express or implied, that any level of performance or investment results will be achieved by the Funds or that a Fund will perform comparably with any standard or index, including other clients of the Sub-Adviser, whether public or private. The Sub-Adviser shall not be deemed to have breached this Agreement or any investment restrictions or policies applicable to a Fund in connection with fluctuations arising from market movements and other events outside the control of the Sub-Adviser.
c) The Sub-Adviser shall not be liable to the Adviser, the Funds or their shareholders, or the Trust for any action taken or failure to act in good faith reliance upon: (i) information, instructions or requests, whether oral or written, with respect to the exercise Funds made to the Sub-Adviser by a duly authorized officer of the Adviser or the Trust; (ii) the advice of counsel to the Trust; and (iii) any written instruction or certified copy of any resolution of the Board; all except by reason of the Sub-Adviser’s willful misfeasance, bad faith, gross negligence, fraud, reckless disregard or willful misconduct in connection with performing its responsibilities hereunder.
d) In any action in which the Sub-Adviser or any of its rightscontrolling persons, if the Custodian believes that repayment or any shareholders, partners, directors, officers and/or employees of any of the funds foregoing, are parties, the Adviser agrees to indemnify and hold harmless the foregoing persons against any losses to which such persons may become subject, insofar as such losses arise out of or adequate indemnity against are based upon the risk Adviser’s willful misfeasance, bad faith, gross negligence, fraud, reckless disregard or liability is willful misconduct in performing its responsibilities hereunder, including without limitation the operation of a Fund, the contents of the Funds’ Prospectus, or the wrongful conduct of persons with respect to the sale of interests in a Fund, provided that the loss, claim, settlement, damage, charge, liability, cost or expense did not reasonably assured to itrelate to, was not based upon, or did not arise out of an act or omission of the Sub-Adviser or any of its controlling persons, or any shareholders, partners, directors, officers and/or employees constituting reckless disregard, willful misfeasance, bad faith, gross negligence, fraud or willful misconduct.
(de) Without limiting the generality of the foregoing, neither the Custodian may rely on and shall Adviser nor the Sub-Adviser will be protected in acting in good faith on liable for any notice indirect, special, incidental or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreementconsequential damages.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 20 contracts
Samples: Investment Sub Advisory Agreement (JNL Series Trust), Investment Sub Advisory Agreement (JNL Series Trust), Investment Sub Advisory Agreement (Jackson Variable Series Trust)
Limitation of Liability. Each Fund will indemnify and hold CSS harmless against any losses, claims, damages, liabilities or expenses (aincluding reasonable counsel fees and expenses) The Custodian undertakes to perform only the resulting from any claim, demand, action or suit brought by any person (including a shareholder naming such Fund as a party) other than such Fund not resulting from CSS's bad faith, willful misfeasance, reckless disregard of its obligations specified and duties, or negligence arising out of, or in this Agreement. The Issuerconnection with, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied CSS's performance of its obligations exist under this Agreement. Neither To the Custodian nor any extent CSS has not acted with bad faith, willful misfeasance, reckless disregard of its affiliates, officers, directors, employeesobligations and duties, or agents shall be liablegross negligence, directly each Fund will also indemnify and hold CSS harmless against any losses, claims, damages, liabilities or indirectlyexpenses (including reasonable counsel fees and expenses) resulting from any claim, demand, action or suit resulting from the negligence of such Fund, or CSS's acting upon any instructions reasonably believed by it to have been executed or communicated by any person duly authorized by such Fund, or as a result of CSS's acting in reliance upon advice reasonably believed by CSS to have been given by counsel for the Fund, or as a result of CSS's acting in reliance upon any instrument reasonably believed by it to have been genuine and signed, countersigned or executed by the proper person. CSS's liability for any and all claims of any kind, including negligence, for any damages loss or expenses damage arising out of the services performed under this Agreement other than damages that result from their gross negligenceof, willful misconductconnected with, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under resulting from this Agreement, or from the performance or breach thereof, or from the design, development, lease, repair, maintenance, operation or use of data processing systems and the maintenance of a Funds' shareholder account records as provided for by this Agreement will in the exercise aggregate not exceed the total of its rights, if CSS's compensation hereunder for the Custodian believes that repayment six months immediately preceding the discovery of the funds or adequate indemnity against the risk or liability is not reasonably assured circumstances giving rise to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from actingsuch liability. In no event shall will CSS be liable for indirect, special, or consequential damages (even if CSS has been advised of the Custodian have any responsibility to ascertain or take action except as expressly possibility of such damages) arising from the obligations assumed hereunder and the services provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held for by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership including but not limited to lost profits, loss of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability use of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any shareholder accounting system, cost of its duties under this Agreement through any capital, cost of its agentssubstitute facilities, attorneys-in-factprograms or services, downtime costs, or affiliates. Any agent, attorney-in-fact, or affiliate claims of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible shareholders for the performance of those dutiessuch damage.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 18 contracts
Samples: Servicing Agreement (Calvert Fund), Servicing Agreement (Calvert World Values Fund Inc), Servicing Agreement (Calvert Social Investment Fund)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The IssuerNo claim may be made by any Transaction Party or any other party hereto against any other party hereto or their respective Affiliates, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliatesdirectors, officers, directors, employees, attorneys or agents shall be liable, directly or indirectly, for any special, indirect, consequential or punitive damages in respect of any claim for breach of contract or expenses any other theory of liability arising out of or related to the services performed under transactions contemplated by this Agreement or any other than damages that result from their gross negligence, willful misconductFacility Document, or bad faith. The Custodian any act, omission or event occurring in connection herewith or therewith; and its officerseach party hereto hereby waives, directors, employeesreleases, and agents will agrees not be liable to xxx upon any claim for any consequentialsuch damages, indirect, punitive, whether or special damagesnot accrued and whether or not known or suspected to exist in its favor.
(b) Except Notwithstanding anything to the contrary contained herein, the obligations of the Conduit Lenders under this Agreement are solely the corporate obligations of each such Conduit Lender and shall be payable only at such time as provided funds are actually received by, or are available to, such Conduit Lender in excess of funds necessary to pay in full all outstanding Commercial Paper issued by such Conduit Lender and, to the extent funds are not available to pay such obligations, the claims relating thereto shall not constitute a claim against such Conduit Lender. Each party hereto agrees that the payment of any claim (as defined in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability 101 of Title 11 of the Mortgage Loans or Bankruptcy Code) of any such party shall be subordinated to the payment in full of the documents in the Mortgage Filesall Commercial Paper.
(c) The Custodian need not expend No recourse under any obligation, covenant or risk agreement of any Conduit Lender contained in this Agreement shall be had against any incorporator, stockholder, officer, director, member, manager, employee or agent of such Conduit Lender or any of its own funds Affiliates (solely by virtue of such capacity) by the enforcement of any assessment or otherwise incur financial by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement is solely a corporate obligation of such Conduit Lender, and that no personal liability in the performance whatever shall attach to or be incurred by any incorporator, stockholder, officer, director, member, manager, employee or agent of any Conduit Lender or any of its Affiliates (solely by virtue of such capacity) or any of them under or by reason of any of its duties under the obligations, covenants or agreements of such Conduit Lender contained in this Agreement, or implied therefrom, and that any and all personal liability for breaches by any Conduit Lender of any of such obligations, covenants or agreements, either at common law or at equity, or by statute, rule or regulation, of every such incorporator, stockholder, officer, director, member, manager, employee or agent is hereby expressly waived as a condition of and in consideration for the exercise execution of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian ; provided that the foregoing shall not be responsible relieve any such Person from any liability it might otherwise have as a result of fraudulent actions taken or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loanfraudulent omissions made by them.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 17 contracts
Samples: Receivables Loan Agreement, Sale and Contribution Agreement, Servicing Agreement (Hilton Grand Vacations Inc.), Receivables Loan Agreement and Sale and Contribution Agreement (Hilton Grand Vacations Inc.), Receivables Loan Agreement and Sale and Contribution Agreement (Hilton Grand Vacations Inc.)
Limitation of Liability. (a) The Custodian undertakes to perform only GEIM will exercise its best judgment in rendering the obligations specified services described in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge except that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents GEIM will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Agreement relates, indirectother than a loss resulting from willful misfeasance, punitivebad faith or gross negligence on the part of GEIM in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement or to the extent specified in Section 36(b) of the 1940 Act concerning loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services. Any person, even though also an officer, director, employee or agent of GEIM, who may be or become an officer, Trustee, employee or agent of the Trust, will be deemed, when rendering services to the Trust or acting on any business of the Trust, to be rendering services to, or special damagesacting solely for, the Trust and not as an officer, director, employee or agent, or one under the control or direction of, GEIM even though paid by GEIM.
(b) Except The Trust and GEIM agree that the obligations of the Trust under this Agreement will not be binding upon any of the Trustees, shareholders, nominees, officers, employees or agents, whether past, present or future, of the Trust, individually, but are binding only upon the assets and property of the Fund, as provided in Section 2, the Custodian makes no warranty or representation Declaration of Trust. The execution and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision delivery of this Agreement to have been authorized by the contrary notwithstanding, Trustees of the Custodian shall have no notice ofTrust, and shall not be bound bysigned by an authorized officer of the Trust, any other document or agreement executed or delivered in connection withacting as such, or intended to control any part of, and neither the transactions anticipated authorization by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding Trustees nor the foregoing sentence, execution and delivery by the Custodian shall officer will be deemed to have notice been made by any of them individually or to impose any liability on any of them personally, but will bind only the trust property of the terms (including definitions not otherwise set forth Trust as provided in full in this Agreement) the Declaration of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy Trust. No series of the document or agreement to Trust, including the CustodianFund, will be liable for any claims against any other series.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 16 contracts
Samples: Investment Advisory and Administration Agreement (Ge Institutional Funds), Investment Advisory and Administration Agreement (Ge Institutional Funds), Investment Advisory and Administration Agreement (Ge Institutional Funds)
Limitation of Liability. (a) The Custodian undertakes Distributor and the Transfer Agent undertake to perform such duties and only the obligations specified in this Agreement. The Issuersuch duties as are expressly set forth herein, the Owner Trustee, Master Serviceror expressly incorporated herein by reference, and Indenture Trustee acknowledge that no implied covenants or obligations exist under shall be read into this AgreementAgreement against the Distributor or the Transfer Agent.
(b) In the absence of bad faith, negligence or willful misconduct on its part, neither the Distributor, nor the Transfer Agent, whether acting directly or through agents or attorneys as provided in paragraph (d) below, shall be liable for any action taken, suffered or omitted or for any error of judgment made by any of them in the performance of their duties hereunder. Neither the Custodian Distributor nor any of its affiliates, officers, directors, employees, or agents the Transfer Agent shall be liableliable for any error of judgment made in good faith unless the party exercising such shall have been negligent in ascertaining the pertinent facts necessary to make such judgment. In no event shall the Distributor or the Transfer Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profit), even if such parties have been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall the Distributor or the Transfer Agent be liable for the acts or omissions of DTC, NSCC or any other securities depository or clearing corporation.
(c) Neither the Distributor nor the Transfer Agent shall be responsible or liable for any failure or delay in the performance of their obligations under this Agreement arising out of or caused, directly or indirectly, for any damages by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or expenses arising out military disturbances; terrorism; sabotage; epidemics; riots; interruptions; loss or malfunction of the services performed under this Agreement other than damages that result from their gross negligenceutilities, willful misconduct, computer (hardware or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, software) or special damagescommunications service; accidents; labor disputes; acts of civil or military authority or governmental actions.
(bd) Except as provided The Distributor and the Transfer Agent may conclusively rely upon, and shall be fully protected in Section 2acting or refraining from acting upon, the Custodian makes no warranty any communication authorized hereby and upon any written or representation and has no responsibility for the completenessoral instruction, validitynotice, sufficiencyrequest, value, genuineness, ownership, direction or transferability of the Mortgage Loans or any of the documents in the Mortgage Filesconsent reasonably believed by them to be genuine.
(ce) The Custodian need Transfer Agent shall not be required to advance, expend or risk its own funds or otherwise incur or become exposed to financial liability in the performance of any its duties hereunder, except as may be required as a result of its duties under this Agreementown gross negligence, willful misconduct or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to itbad faith.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 15 contracts
Samples: Transfer Agency and Service Agreement (Columbia ETF Trust I), Authorized Participant Agreement, Authorized Participant Agreement (USCF ETF Trust)
Limitation of Liability. (a) The Custodian undertakes to perform only Sub-Adviser shall exercise its best judgment in rendering the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist services provided by it under this Agreement. Neither ; provided, however that the Custodian nor any of its affiliatesSub-Adviser, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and including its officers, directors, employeesemployees and agents, and agents will shall not be liable subject to any liability under this Agreement for any consequentialerror of judgment or any loss arising out of any investment or other act or omission in the course of, indirect, punitiveconnected with, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance arising out of any of its duties service to be rendered under this Agreement, except by reason of willful misconduct, fraud, bad faith or negligence in the exercise of its rights, if the Custodian believes that repayment performance or non-performance of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality Sub-Adviser’s duties hereunder; by reason of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed reckless disregard by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any Sub-Adviser of its duties hereunder; or any violation by the Sub-Adviser of any applicable federal or state law or regulation or any duty imposed under this Agreement through any of its agents, attorneys-in-fact, federal or affiliatesstate law. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agentsThe U.S. securities laws impose liabilities under certain circumstances on persons who act in good faith, and employees) that performs duties therefore nothing herein shall in connection with this Agreement shall be entitled to the same benefits any way constitute a waiver or limitation of the indemnification, waiver, and other protective provisions to any rights which the Custodian is entitled Adviser may have under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian U.S. securities laws. Sub-Adviser shall not be responsible for delays any loss incurred by reason of any act or failures omission of the Custodian or of any broker, dealer, underwriter or issuer selected by Sub-Adviser with reasonable care. The Adviser, including its officers, directors, employees and agents, shall not be subject to any liability under this Agreement for any error of judgment or any loss arising out of any investment or other act or omission in performance resulting from acts beyond its control. Acts beyond its control include acts of Godthe course of, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakesconnected with, or other disastersarising out of any service to be rendered under this Agreement, except by reason of willful misfeasance, fraud, bad faith or negligence in the performance or non-performance of the Adviser’s duties hereunder; by reason of reckless disregard by the Adviser of its duties hereunder; or any violation by the Adviser of any applicable federal or state law or regulation or any duty imposed under federal or state law. The U.S. securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the Sub-Adviser may have under U.S. securities laws.
Appears in 13 contracts
Samples: Investment Sub Advisory Agreement (Penn Series Funds Inc), Investment Sub Advisory Agreement (Penn Series Funds Inc), Investment Sub Advisory Agreement (Penn Series Funds Inc)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Portfolio Manager shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialaction taken, indirectomitted or suffered to be taken by it in its reasonable judgment, punitivein good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement, or special damages.
in accordance with (bor in the absence of) specific directions or instructions from the Fund, provided, however, that such acts or omissions shall not have resulted from the Portfolio Manager’s willful misfeasance, bad faith or gross negligence, a violation of the standard of care established by and applicable to the Portfolio Manager in its actions under this Agreement or breach of its duty or of its obligations hereunder (provided, however, that the foregoing shall not be construed to protect the Portfolio Manager from liability in violation of Section 17(i) of the Act). Except as may otherwise be provided by the Act or any other federal securities law, the Portfolio Manager shall indemnify and hold harmless the Fund Manager and the Fund, and their officers and employees, consultants, all affiliated persons thereof (within the meaning of Section 2(a)(3) of the Act) and all controlling persons (as described in Section 215 of the Securities Act of 1933, as amended) (collectively, the Custodian makes no warranty or representation “Fund Indemnitees”) against any and has no responsibility for the completenessall losses, validityclaims, sufficiencydamages, value, genuineness, ownershipliabilities, or transferability of the Mortgage Loans or litigation (including reasonable legal and other expenses) to which any of the documents in Fund Indemnitees may become subject at common law or otherwise, arising out of the Mortgage Files.
Portfolio Manager’s action or inaction or based on this Agreement; provided however, the Portfolio Manager shall not indemnify or hold harmless the Fund Indemnitees for any losses, claims, damages, liabilities or litigation (cincluding reasonable legal and other expenses) The Custodian need not expend due to (i) any breach by the Fund or risk its own funds the Trust of a Fund representation or otherwise incur financial liability warranty made herein, or (ii) any willful misconduct, fraud, reckless disregard or gross negligence of the Fund or the Trust in the performance of any of its their duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to itobligations hereunder.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 12 contracts
Samples: Portfolio Management Agreement (Liberty All Star Equity Fund), Portfolio Management Agreement (Liberty All Star Growth Fund Inc.), Portfolio Management Agreement (Liberty All Star Growth Fund Inc.)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Transmission Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall not be liable, directly whether based on contract, indemnification, warranty, equity, tort, strict liability or indirectlyotherwise, to any Transmission Customer, Market Participant, User, Interconnection Customer, Interconnecting Transmission Owner or any third party or other person for any damages whatsoever, including, without limitation, direct, incidental, consequential (including, without limitation, attorneys’ fees and litigation costs), punitive, special, multiple, exemplary or expenses indirect damages arising out of the services performed or resulting from any act or omission in any way associated with service provided under this Agreement other than damages Tariff, including, but not limited to, any act or omission that result from their results in an interruption, deficiency or imperfection of service, except to the extent that the Transmission Owner is found liable for gross negligence, willful negligence or intentional misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents in which case the Transmission Owner will not only be liable for any consequentialdirect damages. Nothing in this section, indirecthowever, punitiveis intended to affect obligations otherwise provided in agreements between the ISO and Transmission Owner. Except with respect to an interruption of service or when a Transmission Owner is acting in good faith to implement or comply with the directives of the ISO, the forgoing provisions shall not limit the liability of the Transmission Owner for damages resulting from its own negligence in connection with property owned, installed or maintained by a retail or wholesale customer of the Transmission Owner or leased by the customer from a third party, or special damagesfor any damages to a retail or wholesale customer resulting from the negligence of the Transmission Owner in connection with the Transmission Owner’s operation of the transmission system or from the presence or operation of the Transmission Owner’s structures, equipment, wires, pipes, appliances or devices on the customer’s premises.
(b) Except as The ISO shall not be liable, whether based on contract, indemnification, warranty, equity, tort, strict liability or otherwise, to any Transmission Customer, Market Participant, User, Interconnection Customer, Interconnecting Transmission Owner or any third party or other person for any damages whatsoever, including, without limitation, direct, incidental, consequential (including, without limitation, attorneys’ fees and litigation costs), punitive, special, multiple, exemplary or indirect damages arising or resulting from any act or omission in any way associated with service provided under this Tariff, including, but not limited to, any act or omission that results in an interruption, deficiency or imperfection of service, except to the extent that the ISO is found liable for gross negligence or intentional misconduct, in which case the ISO will only be liable for direct damages. Nothing in this section, however, is intended to affect obligations otherwise provided in Section 2, agreements between the Custodian makes no warranty or representation ISO and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage FilesTransmission Owner.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in Neither the performance Transmission Owner nor the ISO shall be liable for damages arising out of any of its duties services provided under this AgreementTariff, including, but not limited to, any act or omission that results in an interruption, deficiency or imperfection of service, occurring as a result of conditions or circumstances beyond the control of the Transmission Owner or ISO, as applicable, or in resulting from electric system design common to the exercise of its rights, if domestic electric utility industry or electric system operation practices or conditions common to the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) domestic electric utility industry. The Custodian Transmission Owner shall not be responsible liable for acts or liable for, and makes no representation omissions done in compliance or warranty good faith attempts to comply with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice directives of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the CustodianISO.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 12 contracts
Samples: Tariff Agreement, Tariff Agreement, Tariff Agreement
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The IssuerBank, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliatesdirectors, officers, directors, employees, or employees and agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Fund in connection with the performance of its obligations and duties under this Agreement, indirectexcept a loss resulting from willful misfeasance, punitivebad faith or gross negligence in the performance of such obligations and duties, or special by reason of its reckless disregard thereof. The Fund will indemnify the Bank, its directors, officers, employees and agents against and hold it and them harmless from any and all losses, claims, damages, liabilities or expenses (including legal fees and expenses) resulting from any claim, demand, action or suit (i) arising out of the actions or omissions of the Fund, including, but not limited to, inaccurate Daily Sales Reports and misidentification of Exempt Transactions; (ii) arising out of the offer or sale of any securities of the Fund in violation of (x) any requirement under the federal securities laws or regulations, (y) any requirement under the securities laws or regulations of any state, or (z) any stop order or other determination or ruling by any federal or state agency with respect to the offer or sale of such securities; or (iii) not resulting from the willful misfeasance, bad faith or gross negligence of the Bank in the performance of such obligations and duties or by reason of its reckless disregard thereof.
(b) Except as provided in Section 2, The Bank may apply to the Custodian makes no warranty or representation Fund at any time for instructions and has no responsibility may consult counsel for the completeness, validity, sufficiency, value, genuineness, ownershipFund, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability counsel, and with accountants and other experts with respect to any matter arising in the performance of any of connection with its duties under this Agreementhereunder, and the Bank shall not be liable or in the exercise of its rights, if the Custodian believes that repayment of the funds accountable for any action taken or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting omitted by it in good faith on any notice in accordance with such instruction, or with the opinion of such counsel, accountants, or other communication received by it that experts. The Bank shall not be liable for any act or omission taken or not taken in reliance upon any document, certificate or instrument which it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) be signed or presented by the proper person or persons. The Custodian Bank shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed held to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) any change of other documents and agreements executed or delivered in connection withauthority of any officers, employees, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy agents of the document or agreement to Fund until receipt of written notice thereof has been received by the CustodianBank from the Fund.
(gc) The Custodian shall have only In the event the Bank is unable to perform, or is delayed in performing, its obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by under the parties to this Agreement or their successors and assigns. If any provision terms of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership because of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockoutslegal constraint, riotsgovernment actions, acts war, emergency conditions, interruption of war electrical power or terrorismother utilities, epidemicsequipment or transmission failure or damage reasonably beyond its control or other causes reasonably beyond its control, nationalizationthe Bank shall not be liable to the Fund for any damages resulting from such failure to perform, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakesdelay in performance, or other disastersotherwise from such causes.
(d) Notwithstanding anything to the contrary in this Agreement, in no event shall the Bank be liable for special, incidental or consequential damages, even if advised of the possibility of such damages.
Appears in 11 contracts
Samples: Administration Agreement (Artio Global Equity Fund Inc), Administration Agreement (Artio Global Investment Funds), Administration Agreement (Artio Global Equity Fund Inc)
Limitation of Liability. This Section 13 shall survive the termination of this Agreement.
(a) The Custodian undertakes In no event shall any party be liable for any special, indirect, incidental, exemplary, punitive or consequential loss or damage of any kind whatsoever (including but not limited to perform only loss of revenue, loss of actual or anticipated profit, loss of contracts, loss of the obligations specified in this Agreementuse of money, loss of anticipated savings, loss of business, loss of opportunity, loss of market share, loss of goodwill or loss of reputation), even if such parties have been advised of the likelihood of such loss or damage and regardless of the form of action. The IssuerIn no event shall any party be liable for the acts or omissions of DTC, NSCC or any other securities depository or clearing corporation.
(b) Neither the Distributor, the Owner Trustee[Transfer Agent/Index Receipt Agent], Master Servicer, and Indenture Trustee acknowledge that no implied nor the Participant shall be responsible or liable for any failure or delay in the performance of its obligations exist under this Agreement. Neither the Custodian nor any Agreement arising out of its affiliates, officers, directors, employees, or agents shall be liablecaused, directly or indirectly, for any damages by circumstances beyond its reasonable control, including without limitation: acts of God; earthquakes; fires; floods; wars; civil or expenses arising out military disturbances; terrorism; sabotage; epidemics; riots; interruptions; loss or malfunction of the services performed under this Agreement other than damages that result from their gross negligenceutilities, willful misconduct, computer (hardware or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, software) or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty communications service; accidents; labor disputes; acts of civil or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, military authority or transferability of the Mortgage Loans or any of the documents in the Mortgage Filesgovernmental actions.
(c) The Custodian need Distributor and the [Transfer Agent/Index Receipt Agent] may conclusively rely upon, and shall be fully protected in acting or refraining from acting upon, any communication authorized under this Agreement and upon any written or oral instruction, notice, request, direction or consent reasonably believed by them to be genuine.
(d) In the absence of bad faith, gross negligence or willful misconduct on its part, the [Transfer Agent/Index Receipt Agent], whether acting directly or through its agents, affiliates or attorneys, shall not be liable for any action taken, suffered or omitted or for any error of judgment made by it in the performance of its duties hereunder. The [Transfer Agent/Index Receipt Agent] shall not be liable for any error of judgment made in good faith unless in exercising such it shall have been grossly negligent in ascertaining the pertinent facts necessary to make such judgment.
(e) Neither the Distributor nor the Transfer Agent/Index Receipt Agent shall be liable to the Participant or to any other person for any damages arising out of mistakes or errors in data provided to the Distributor or the Transfer Agent/Index Receipt Agent by a third party, or out of interruptions or delays of electronic means of communications with the Distributor or the Transfer Agent/Index Receipt Agent.
(f) The Transfer Agent/Index Receipt Agent shall not be required to advance, expend or risk its own funds or otherwise incur or become exposed to financial liability in the performance of any its duties hereunder, except as may be required as a result of its duties under this Agreementown gross negligence, willful misconduct or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to itbad faith.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 10 contracts
Samples: Authorized Participant Agreement (Investment Managers Series Trust II), Authorized Participant Agreement (Investment Managers Series Trust II), Authorized Participant Agreement (Investment Managers Series Trust II)
Limitation of Liability. 14.1 Notwithstanding anything in this Agreement to the contrary, in no event shall the Bank or any of its officers, directors or employees (collectively, the "Bank Indemnified Parties") be liable to the Fund or any third party, and the Fund shall indemnify and hold the Bank and the Bank Indemnified Parties harmless from and against any and all loss, damage, liability, actions, suits, claims, and reasonable costs and expenses, including reasonable legal fees, (a "Claim") arising as a result of any act or omission of the Bank or any Bank Indemnified Party under this Agreement, except to the extent any such Claim results from the negligence, willful misfeasance, bad faith or reckless disregard of its duties on the part of the Bank or any Bank Indemnified Party. Without limiting the foregoing, neither the Bank nor the Bank Indemnified Parties shall be liable for, and the Bank and the Bank Indemnified Parties shall be indemnified against, any Claim arising as a result of:
(a) The Custodian undertakes to perform only Any act or omission by the obligations specified Bank or any Bank Indemnified Party in good faith reliance upon the terms of this Agreement. The Issuer, the Owner Trusteeany Officer's Certificate, Master ServicerProper Instructions, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out resolution of the services performed under this Agreement Board, telegram, telecopier, notice, request, certificate or other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.instrument reasonably believed by the Bank to genuine;
(b) Except as provided in Section 2, Any act or omission of any subcustodian selected by or at the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability direction of the Mortgage Loans or any of the documents in the Mortgage Files.Fund;
(c) The Custodian need not expend Any act or risk its own funds or otherwise incur financial liability in the performance omission of any Foreign Custody Manager other than the Bank or any act or omission of its duties under this Agreement, or in the exercise of its rights, any Eligible Foreign Custodian if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability Bank is not reasonably assured to it.the Foreign Custody Manager;
(d) Without limiting Any Corporate Action, distribution or other event related to Portfolio Securities which, at the generality direction of the foregoingFund, have not been registered in the Custodian may rely on and shall be protected in acting in good faith on any notice name of the Bank or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.nominee;
(e) The Custodian shall Any Corporate Action requiring a Response for which the Bank has not be responsible received Proper Instructions or liable forobtained actual possession of all necessary Securities, and makes no representation consents or warranty with respect to, other materials by 5:00 p.m. on the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.date specified as the Response Deadline; or
(f) Any other provision act or omission of any European Branch of a U.S. banking institution that is the issuer of Eurodollar CDs in connection with any Eurodollar CDs held by such European Branch.
14.2 The Bank agrees to indemnify and hold harmless each Fund and its affiliates and their Directors/Trustees, officers and employees ("Fund Indemnified Parties") from and against any and all Claims arising as a result of any act or omission of the Bank or any Bank Indemnified Party under this Agreement to the contrary notwithstandingextent any such Claim results from the negligence, willful misfeasance, bad faith or reckless disregard of its duties on the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed Bank or delivered in connection with, or intended any Bank Indemnified Party.
14.3 Notwithstanding anything to control any part of, the transactions anticipated by or referred to contrary in this Agreement, neither Party shall be liable to the extent the terms are referencedother party or any third party for lost profits or lost revenues or any special, consequential, punitive or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy incidental damages of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties kind whatsoever in connection with this Agreement or any activities hereunder.
14.4 The obligations set forth in this Section 14 shall be entitled to survive the same benefits termination of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 10 contracts
Samples: Master Custodian Agreement (Eclipse Funds Inc.), Master Custodian Agreement (Mainstay Funds), Master Custodian Agreement (Mainstay Funds)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, a. IFTC and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian Bank shall not be responsible or liable for, and makes Customer and Broker shall indemnify and hold IFTC and Bank harmless from and against, any and all costs, expenses, losses, damages, charges, counsel fees, payments and liabilities which may be asserted against or incurred by IFTC or Bank or for which IFTC or Bank may be held to be liable, arising out of or attributable to:
i. IFTC's or Bank's action or omission to act pursuant hereto; provided that IFTC or Bank have acted in good faith and with due diligence and reasonable care; and provided further, that IFTC shall not be liable for consequential, special, or punitive damages in any event.
ii. IFTC's action or omission to act hereunder upon any Written Notice, instructions, advice, notice, request, consent, certificate or other instrument or paper reasonably appearing to it to be genuine and to have been properly executed, including but not limited to instructions contained in a Notice of Default, it being expressly understood that IFTC and Bank shall have no duty to determine whether a default has, in fact, occurred, or any other duty of inquiry or verification with respect thereto.
iii. Customer's or Broker's refusal or failure to comply with the terms hereof (including without limitation failure to pay or reimburse IFTC or Bank and under Section 9 hereof), Customer's or Broker's acts or omissions, negligence or willful misconduct, or the failure of any representation or warranty with respect to, the validity, adequacyof Customer or Broker hereunder to be and remain true and correct in all respects at all times.
iv. The failure or delay in performance of its obligations hereunder, or perfection those of any lien on entity for which it is responsible hereunder, arising out of or security interest caused, directly or indirectly, by circumstances beyond the affected entity's reasonable control, including, without limitation: any interruption, loss or malfunction of any utility, transportation, computer (hardware or software) or communication service; inability to obtain labor, material, equipment or transportation, or a delay in any Mortgage Loanmails; governmental or exchange action, statute, ordinance, rulings, regulations or direction; war, strike, riot, emergency, civil disturbance, terrorism, vandalism, explosions, labor disputes, freezes, floods, fires, tornados, acts of God or public enemy, revolutions, or insurrection.
(f) Any other provision v. The sufficiency or adequacy of this Agreement the Collateral deposited hereunder from time to time, or compliance with any statute or regulation regarding the contrary notwithstandingamount and form of Collateral, the Custodian it being understood that IFTC and Bank shall have no notice ofduty to require any Assets to be delivered at any time, or the establishment or maintenance of margin credit, including but not limited to the Rules and Regulations, Regulations T or X of the Board of Governors of the Federal Reserve System, or with any rules or regulations of the Options Clearing Corporation or the Securities and Exchange Commission.
b. Broker shall not be bound by, responsible or liable for any other document loss incurred by any Customer by reason of IFTC's or agreement executed Bank's negligence or delivered willful misconduct in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or performing their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 10 contracts
Samples: Custody and Investment Accounting Agreement (Bull & Bear Special Equities Fund Inc), Custody and Investment Accounting Agreement (Bull & Bear Municipal Income Fund Inc), Custody and Investment Accounting Agreement (Bull & Bear Funds I Inc)
Limitation of Liability. (a) The Custodian undertakes to perform only the Administrative Agent shall not have any duties or obligations specified in this Agreementexcept those expressly set forth herein. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, (a) the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian Administrative Agent shall not be responsible subject to any fiduciary or liable forother implied duties, regardless of whether an Event of Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated herein that the Administrative Agent is required to exercise in writing as directed by the Required Banks (or such other number or percentage of the Banks as shall be necessary under the circumstances as provided in Section 9.9), and makes no representation or warranty with respect to(c) except as expressly set forth herein, the validity, adequacy, or perfection of Administrative Agent shall not have any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement duty to the contrary notwithstanding, the Custodian shall have no notice ofdisclose, and shall not be bound byliable for the failure to disclose, any information relating to the Applicant or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Banks (or such other document number or agreement executed percentage of the Banks as shall be necessary under the circumstances as provided in Section 9.9),) or delivered in connection with, the absence of its own gross negligence or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreementwillful misconduct. Notwithstanding the foregoing sentence, the Custodian The Administrative Agent shall be deemed not to have knowledge of any Event of Default unless and until written notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, thereof is given to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed Administrative Agent by the parties to this Agreement Applicant or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this AgreementBank, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian Administrative Agent shall not be responsible for delays or failures have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Related Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Related Document, (iii) the performance resulting from acts beyond its control. Acts beyond its control include acts or observance of Godany of the covenants, strikesagreements or other terms or conditions set forth in any Related Document, lockouts(iv) the validity, riotsenforceability, acts effectiveness or genuineness of war any Related Document or terrorismany other agreement, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakesinstrument or document, or (v) the satisfaction of any condition set forth in Article III or elsewhere in any Related Document, other disastersthan to confirm receipt of items expressly required to be delivered to the Administrative Agent.
Appears in 9 contracts
Samples: Reimbursement Agreement (Agl Resources Inc), Reimbursement Agreement (Agl Resources Inc), Reimbursement Agreement (Agl Resources Inc)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Adviser shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Company in connection with the matters to which this Agreement relates, indirectexcept a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services or a loss resulting from willful misfeasance, punitive, bad faith or special damages.
(b) Except as provided in Section 2, gross negligence on the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability part of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability Adviser in the performance of any its duties or from reckless disregard by it of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on obligations and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through (“disabling conduct”). The Company will indemnify the Adviser against and hold it harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) resulting from any claim, demand, action or suit not resulting from disabling conduct by the Adviser. Indemnification shall be made only following: (i) a final decision on the merits by a court or other body before whom the proceeding was brought that the Adviser was not liable by reason of its agentsdisabling conduct or (ii) in the absence of such a decision, attorneys-in-facta reasonable determination, or affiliates. Any agent, attorney-in-fact, or affiliate based upon a review of the Custodian facts, that the Adviser was not liable by reason of disabling conduct by (and any affiliate's directors, officers, agents, and employeesa) that performs duties the vote of a majority of a quorum of Trustees of the Trust who are neither "interested persons" of the Company nor parties to the proceeding ("disinterested non-party Trustees") or (b) an independent legal counsel in connection with this Agreement a written opinion. The Adviser shall be entitled to advances from the same benefits Company for payment of the indemnification, waiver, and other protective provisions reasonable expenses incurred by it in connection with the matter as to which it is seeking indemnification in the Custodian manner and to the fullest extent permissible under the applicable law. The Adviser shall provide to the Company a written affirmation of its good faith belief that the standard of conduct necessary for indemnification by the Company has been met and a written undertaking to repay any such advance if it should ultimately be determined that the standard of conduct has not been met. In addition, at least one of the following additional conditions shall be met: (a) the Adviser shall provide a security in form and amount acceptable to the Company for its undertaking; (b) the Company is insured against losses arising by reason of the advance; or (c) a majority of a quorum of disinterested non-party Trustees, or independent legal counsel, in a written opinion, shall have determined, based upon a review of facts readily available to the Company at the time the advance is proposed to be made, that there is reason to believe that the Adviser will ultimately be found to be entitled under to indemnification. The limitations on liability and indemnification provisions of this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian Section 12 shall not be responsible applicable to any losses, claims, damages, liabilities or expenses arising from the Adviser's rights to the Company’s name. The Adviser shall indemnify and hold harmless the Company for delays any claims arising from the use of the terms “Cxxxxxxx Core Trend” or failures “Cxxxxxxx” in performance resulting from acts beyond its control. Acts beyond its control include acts the name of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disastersCompany.
Appears in 9 contracts
Samples: Investment Advisory Agreement (Kinetics Mutual Funds Inc), Investment Advisory Agreement (Kinetics Portfolios Trust), Investment Advisory Agreement (Kinetics Portfolios Trust)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that 16.1 In no implied obligations exist under this Agreement. Neither the Custodian nor event shall any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not Party be liable for any consequentialspecial, indirect, punitiveincidental, consequential, punitive or special exemplary damages, including, but not limited to, lost profits, even if such Party alleged to be liable has knowledge of the possibility of such damages.
(b) Except 16.2 Supplier shall be responsible for the performance of only such duties as are set forth in this Agreement, as may be amended from time to time, and, except as otherwise provided in under Section 212.3, the Custodian makes no warranty or representation and has shall have no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, actions or transferability activities of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial other party. Supplier shall have no liability in respect of any loss, damage or expense suffered by the Funds or CMA insofar as such loss, damage or expense arises from the performance of Supplier’s duties hereunder in reliance upon records that were maintained for the Funds by entities other than Supplier prior to Supplier’s appointment as administrator for the Funds. Supplier shall have no liability for any error of judgment or mistake of law or for any loss or damage resulting from the performance or nonperformance of its duties hereunder except to the extent caused by or resulting from the negligence or willful misconduct of Supplier with respect to the Funds, its officers, employees or Sub-contractors. In any event, Supplier’s cumulative liability for each calendar year (a “Liability Period”) under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment regardless of the funds form of action or adequate indemnity against legal theory, shall be limited to the risk total annual compensation earned by Supplier and fees payable hereunder during the preceding Compensation Period, as defined herein, for any liability or loss suffered by CMA or a Fund including, but not limited to, any liability is not reasonably assured relating to it.
(dqualification of the Fund as a regulated investment company or any liability relating to the Fund’s compliance with any federal or state tax or securities statute, regulation or ruling during such Liability Period. “Compensation Period” shall mean the calendar year ending immediately prior to each Liability Period in which the event(s) Without limiting the generality of giving rise to Supplier’s liability for that period have occurred. Notwithstanding the foregoing, the Custodian may rely Compensation Period for purposes of calculating the annual cumulative liability of Supplier for the Liability Period commencing January 1, 2006 and terminating on and December 31, 2006 shall be protected in acting in good faith on any notice or other communication received the total annual compensation earned by it that it reasonably believes to be genuine Supplier and duly authorized with respect to all matters pertaining to fees payable under this Agreement and its duties under this Agreement.
(e) The Custodian the Financial Reporting Services Agreement dated as of July 13, 2005 between CMA and Supplier for the period from January 1, 2006 to December 31, 2006. Supplier shall not be responsible or liable for, and makes no representation for any failure or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest delay in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any performance of its duties obligations under this Agreement through any arising out of its agentsor caused, attorneys-in-factdirectly or indirectly, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts by circumstances beyond its control. Acts beyond its control include acts of God, strikesincluding without limitation, lockoutswork stoppage, riotspower or other mechanical failure, acts of war or terrorismcomputer virus, epidemics, nationalization, expropriation, currency restrictionsnatural disaster, governmental regulations superimposed after the fact, fire, action or communication line failures, computer viruses, power failures, earthquakes, or other disastersdisruption.
Appears in 9 contracts
Samples: Financial Reporting Services Agreement (Columbia Funds Master Investment Trust, LLC), Financial Reporting Services Agreement (Columbia Funds Series Trust), Financial Reporting Services Agreement (Columbia Funds Series Trust)
Limitation of Liability. (a) The Custodian undertakes to perform only In connection with the Custodian’s timely performance of its obligations specified in this Agreement. The Issuerand duties hereunder, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor shall not be liable to any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, person for any damages loss, claim, damage, liability or expenses expense resulting from or arising out of any act or failure to act by it, other than for any loss, claim, damage, liability or expense arising out of the services performed under this Agreement other than damages that result from their gross negligence, Custodian’s willful misconduct, gross negligence or bad faith. The obligations of the Custodian and its officers, directors, employees, and agents will not shall be liable for any consequential, indirect, punitive, or special damagesdetermined solely by the express provision of this Agreement.
(b) Except as provided in Section 2specifically set forth herein, the Custodian makes shall be under no warranty duty or representation and has no responsibility obligation to inspect, review or examine the Receivables or Receivable Files to determine the contents thereof or that such contents are genuine, enforceable or appropriate for the completeness, validity, sufficiency, value, genuineness, ownership, represented purpose or transferability of the Mortgage Loans or any of the documents in the Mortgage Filesthat they are other than what they purport to be on their face.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreementmay rely, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting or refraining from acting, in good faith on each case, in accordance with the terms of this Custodian Agreement, and need not verify the accuracy of, (i) any notice or other communication received by it that it written instructions from any persons the Custodian reasonably believes to be authorized to give such instructions and who shall only be persons the Custodian believes in good faith to be authorized representatives, and (ii) any written instruction, notice, order, request, direction, certificate, opinion or other instrument or document reasonably believed by the Custodian to be genuine and duly to have been signed and presented by the proper party or parties, which shall mean signature and presentation by authorized representatives whether such presentation is by personal delivery, express delivery or facsimile.
(d) The Custodian may consult with respect counsel with regard to all matters pertaining to this Agreement and its duties under legal questions arising out of or in connection with this Agreement, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Custodian in reliance, in good faith, and in accordance therewith.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, adequacy or perfection of any lien on upon, or security interest in in, any Mortgage LoanReceivable or Receivable File purported to be granted at any time pursuant to the Indenture.
(f) Any other provision of this Agreement Notwithstanding anything to the contrary notwithstandingherein, the Custodian shall have no notice of, and shall not be bound byliable for any delays in performance for causes beyond its control, any other document including, but not limited to, fire, flood, epidemic, unusually severe weather, strike, acts of the Holding Trust or agreement executed the Servicer, restriction by civil or delivered military authority in connection withtheir sovereign or contractual capacities, transportation failure, or intended inability to control obtain labor. In the event of any part ofsuch delay, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian performance shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as extended for so long as the Indenture Trustee has provided a copy such period of the document or agreement to the Custodiandelay.
(g) The Custodian shall have only be under no responsibility or duty with respect to the obligations expressly set forth disposition of any Receivable or Receivable File while such Receivable or Receivable File are not in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assignsits possession. If the Custodian shall reasonably request instructions from the Indenture Trustee with respect to any provision of this Agreement implies or requires that act, action or forbearance be taken by a party, but is silent as to which party has the duty failure to act or in connection with this Custodian Agreement, the Custodian shall be entitled to refrain from actingtaking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Indenture Trustee, without incurring any liability therefor to the parties agree Indenture Trustee or any other person; provided that the Custodian shall not be at all times maintain custody of the party required Receivable Files delivered to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action it (except as expressly provided in otherwise required by this Custodian Agreement) and otherwise comply with its obligations thereunder.
(h) Nothing in this Agreement In no event shall impose on each of the Custodian any duty to qualify to do business in any jurisdictionparties hereto or its directors, other than (i) any jurisdiction where any Mortgage File is or may managers, affiliates, officers, agents, and employees be held liable for any special, indirect, punitive or consequential damages (including lost profits) resulting from any action taken or omitted to be taken by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property it or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreementthem hereunder.
(i) The Custodian may execute Indenture Trustee shall not (i) have any of its duties under this Agreement through or obligations hereunder except those expressly set forth herein or (ii) be subject to any of its agents, attorneys-in-fact, fiduciary or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those implied duties.
(j) No discretionary, permissive right, nor privilege of the Custodian shall be deemed or construed as a duty or obligation.
(k) The Custodian shall not be held responsible for delays the acts or failures in performance resulting from acts beyond its control. Acts beyond its control include acts omissions of Godthe Seller, strikesServicer, lockoutsIssuer, riotsHolding Trust, acts of war or terrorismIndenture Trustee, epidemicsBackup Servicer, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakesOwner Trustee, or any other disastersparty to the Basic Documents, and may assume performance of such parties absent written notice or actual knowledge of a Responsible Officer of the Custodian to the contrary.
(l) The Custodian shall not be charged with knowledge of any event or information, including any Default or Event of Default, unless a Responsible Officer of the Custodian has actual knowledge or receives written notice of such event or information. Absent actual knowledge or receipt of written notice in accordance with this Section, the Custodian may conclusively assume that no such event has occurred. The Custodian shall have no obligation to inquire into, or investigate as to, the occurrence of any such event (including any Default or Event of Default). For purposes of determining the Custodian’s responsibility and liability hereunder, whenever reference is made in the Basic Documents to any event (including, but not limited to, an Event of Default), such reference shall be construed to refer only to such event of which the Custodian has received notice or has actual knowledge as described in this Section. The Custodian’s receipt or delivery of any reports or other information publicly available does not constitute actual or constructive knowledge or notice to the Custodian unless the Custodian has an obligation to review its content. Knowledge of the Custodian shall not be attributed or imputed to Xxxxxx’s other roles in the transaction, and knowledge of such other role shall not be attributed or imputed to each other or to the Custodian (in each case, other than instances where such roles are performed by the same group, department or division within Exeter) or any affiliate, line of business or other division of Exeter (and vice versa).
(m) In the absence of bad faith on its part, the Custodian may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Custodian and conforming to the requirements of the Basic Documents.
(n) The Custodian may conclusively rely on any document believed by it to be genuine and to have been signed or presented by the proper person. The Custodian is not responsible for any document provided to it, and it need not investigate or re-calculate, evaluate, verify or independently determine the accuracy of any report, certificate, information, statement, representation or warranty or any fact or matter stated in such document and may conclusively rely as to the truth of the statements and the correctness of the opinions expressed therein.
(o) Before the Custodian acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel, the costs of which (including the Custodian’s reasonable attorney’s fees and expenses) shall be paid by the party requesting that the Custodian act or refrain from acting. The Custodian shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel unless the Custodian was negligent in such reliance.
(p) The Custodian shall not be liable for any action taken or error of judgment made in good faith by a Responsible Officer unless it is proved that the Custodian was negligent in ascertaining the pertinent facts.
(q) No provision of this Custodian Agreement shall require the Custodian to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is not assured to it.
(r) The Custodian shall be under no obligation to institute, conduct or defend any litigation under this Custodian Agreement or in relation to this Custodian Agreement, at the request, order or direction of any Person, pursuant to the provisions of this Custodian Agreement, unless such Person shall have offered to the Custodian security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby.
(s) Notwithstanding anything to the contrary in this Agreement or any other Basic Document, the Custodian shall not be required to take any action that is not in accordance with applicable laws.
(t) Neither the Custodian nor any of its officers, directors, employees, attorneys or agents will be responsible or liable for the existence, genuineness, value or protection of any collateral securing the Notes, for the legality, enforceability, effectiveness or sufficiency of the Basic Documents for the creation, perfection, continuation, priority, sufficiency or protection of any of the liens, or for any defect or deficiency as to any such matters, or for monitoring the status of any lien or performance of the collateral.
(u) The Custodian shall have no responsibility for the enforceability of the Notes or the recitals contained in the Basic Documents.
(v) The Custodian shall have no duty to see to, or be responsible for the correctness or accuracy of, any recording, filing or depositing of the Indenture or any agreement referred to therein, or any financing statement or continuation statement evidencing a security interest, or to see to the maintenance of any such recording or filing or depositing or to any rerecording, refilling or re-depositing of any thereof.
Appears in 9 contracts
Samples: Custodian Agreement (Exeter Automobile Receivables Trust 2024-5), Custodian Agreement (Exeter Automobile Receivables Trust 2024-5), Custodian Agreement (Exeter Automobile Receivables Trust 2024-4)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Distributor shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by any Fund in connection with the matters to which this Agreement relates, indirectexcept a loss resulting from willful misfeasance, punitivebad faith or gross negligence on the Distributor's part in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement. Any person, even though also an officer, director, partner, employee or agent of the Distributor, who may be or become an officer, Trustee, employee or agent of the Trust, shall be deemed, when rendering services to the Trust, or special damagesacting on any business of the Trust (other than services or business in connection with the Distributor's duties as distributor hereunder), to be rendering such services to or acting solely for the Trust and not as an officer, director, partner, employee or agent of, or one under the control or direction of, the Distributor even though paid by the Distributor.
(b) Except as provided in Section 2In the performance of its duties hereunder, the Custodian makes no warranty Distributor shall be obligated to exercise due care and diligence, and to act in good faith in performing the services provided for under this Agreement. In performing its services hereunder, the Distributor shall be entitled to rely on any oral or representation written instructions, notices or other communications from the Fund and has no responsibility for its custodian, officers and Trustee, investors, agents and other service providers which the completenessDistributor reasonably believes to be genuine, validityvalid and authorized. The Distributor shall also be entitled to consult with and rely on the advice and opinions of outside legal counsel retained by the Trust, sufficiency, value, genuineness, ownership, as necessary or transferability of the Mortgage Loans or any of the documents in the Mortgage Filesappropriate.
(c) The Custodian need term “Valued Advisers Trust” means and refers to the Trust and each Fund listed on Exhibit A from time to time, as the same may subsequently thereto have been, or subsequently hereto be amended. It is expressly agreed that the obligations of the Trust hereunder shall not expend be binding upon any of the Trustees, shareholders, nominees, officers, agents or risk its own funds employees of the Trust, personally, but shall bind only the assets and property of the Trust. The execution and delivery of this Agreement have been authorized by the vote of a majority of the Trustees, who are not parties to this Agreement or otherwise incur financial liability in the performance interested persons of any of its duties under party to this Agreement, or cast in person at a meeting called for the exercise purpose of its rights, if the Custodian believes that repayment voting on such approval. This Agreement has been signed by an authorized officer of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoingTrust, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable foras such, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, neither such authorization by such Trustees nor such execution and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated delivery by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian such officer shall be deemed to have notice been made by any of them individually or to impose any liability on any of them personally, but shall bind only the assets and property of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodianappropriate Fund.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 9 contracts
Samples: Distribution Agreement (Valued Advisers Trust), Distribution Agreement (Valued Advisers Trust), Distribution Agreement (Valued Advisers Trust)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Investment Adviser shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Agreement relates, indirectexcept a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services or a loss resulting from willful misfeasance, punitive, bad faith or special damages.
(b) Except as provided in Section 2, gross negligence on the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability part of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability Investment Adviser in the performance of any its duties or from reckless disregard by it of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on obligations and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through (“disabling conduct”). The Portfolio will indemnify the Investment Adviser against and hold it harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) resulting from any claim, demand, action or suit not resulting from disabling conduct by the Investment Adviser. Indemnification shall be made only following: (i) a final decision on the merits by a court or other body before whom the proceeding was brought that the Investment Adviser was not liable by reason of its agentsdisabling conduct or (ii) in the absence of such a decision, attorneys-in-facta reasonable determination, or affiliates. Any agent, attorney-in-fact, or affiliate based upon a review of the Custodian facts, that the Investment Adviser was not liable by reason of disabling conduct by (and any affiliate's a) the vote of a majority of a quorum of directors of the Fund who are neither “interested persons” of the Fund nor parties to the proceeding (“disinterested non-party directors, officers, agents, and employees”) that performs duties or (b) an independent legal counsel in connection with this Agreement a written opinion. The Investment Adviser shall be entitled to advances from the same benefits Portfolio for payment of the indemnification, waiver, and other protective provisions reasonable expenses incurred by it in connection with the matter as to which it is seeking indemnification in the Custodian manner and to the fullest extent permissible under the Maryland General Corporation Law. The Investment Adviser shall provide to the Portfolio a written affirmation of its good faith belief that the standard of conduct necessary for indemnification by the Portfolio has been met and a written undertaking to repay any such advance if it should ultimately be determined that the standard of conduct has not been met. In addition, at least one of the following additional conditions shall be met: (a) the Investment Adviser shall provide a security in form and amount acceptable to the Portfolio for its undertaking; (b) the Portfolio is insured against losses arising by reason of the advance; or (c) a majority of a quorum of disinterested non-party directors, or independent legal counsel, in a written opinion, shall have determined, based upon a review of facts readily available to the Portfolio at the time the advance is proposed to be made, that there is reason to believe that the Investment Adviser will ultimately be found to be entitled to indemnification. Any amounts payable by the Portfolio under this Agreement, but Section 13 shall be satisfied only against the Custodian shall remain responsible for assets of the performance Portfolio and not against the assets of those duties.
(j) any other investment portfolio of the Fund. The Custodian limitations on liability and indemnification provisions of this Section 13 shall not be responsible applicable to any losses, claims, damages, liabilities or expenses arising from the Investment Adviser’s rights to the Portfolio’s name. The Investment Adviser shall indemnify and hold harmless the Fund and the Portfolio for delays or failures any claims arising from the use of the term “XXX” in performance resulting from acts beyond its control. Acts beyond its control include acts the name of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disastersPortfolio.
Appears in 8 contracts
Samples: Investment Advisory Agreement (RBB Fund Inc), Investment Advisory Agreement (RBB Fund Inc), Investment Advisory Agreement (RBB Fund Inc)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement1. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this AgreementCorporation shall, to the fullest extent permitted by Section 145 of the terms are referencedDGCL, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement same may be amended and supplemented from time to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment time, indemnify and advance expenses to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by its directors (including observers to the Custodian from time to time under this AgreementBoard of Directors) and officers, and (ii) any jurisdiction where person who at the request of the Corporation is or was serving as a director (including observers to the Board of Directors), officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said section as amended or supplemented (or any successor thereto), provided, however, that except with respect to proceedings to enforce rights to indemnification, the by-laws of the Corporation may provide that the Corporation shall indemnify any director (including observers to the Board of Directors), officer or such person in connection with a proceeding (or part thereof) initiated by such director (including observers to the Board of Directors), officer or such person only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. The Corporation, by action of its ownership Board of property Directors, may provide indemnification or conduct advance expenses to employees and agents of business requires the Corporation or other persons only on such qualification terms and where failure conditions and to qualify could the extent determined by the Board of Directors in its sole and absolute discretion. The indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in their official capacity and as to action in another capacity while holding such office. The indemnification provided for herein shall continue as to a person who has ceased to be a director, officer, employee, or agent of the Corporation and shall inure to the benefit of the heirs, executors and administrators of such a person.
2. No director (including observers to the Board of Directors) of this Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent that exemption from liability or limitation thereof is not permitted under the DGCL as in effect at the time such liability or limitation thereof is determined. No amendment, modification or repeal of this Article X shall apply to or have a material adverse any effect on the Custodian liability or its property or business or on the ability alleged liability of any director of the Custodian Corporation for or with respect to perform its duties under any acts or omissions of such director occurring prior to such amendment, modification or repeal. If the DGCL is amended after approval by the stockholders of this AgreementArticle to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL.
(i3. The Corporation hereby renounces, to the fullest extent permitted by Section 122(17) The Custodian may execute of the DGCL, any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, any business opportunities that are presented to any of its duties under this Agreement through directors who are not otherwise employed by the Corporation, other than business opportunities that are presented to any of its agents, attorneys-in-fact, director acting solely and specifically in his or affiliates. Any agent, attorney-in-fact, or affiliate her capacity as a director of the Custodian (and Corporation. No amendment or repeal of this Article shall apply to or have any affiliate's directors, officers, agents, and employees) that performs duties in connection effect on the liability or alleged liability of any such director for or with this Agreement shall be entitled respect to the same benefits any opportunities of the indemnification, waiver, and other protective provisions which such director become aware prior to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those dutiessuch amendment or repeal.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 8 contracts
Samples: License Agreement (Radius Health, Inc.), Series a 1 Convertible Preferred Stock Issuance Agreement (Radius Health, Inc.), Series a 1 Convertible Preferred Stock Purchase Agreement (Radius Health, Inc.)
Limitation of Liability. (a) The Custodian undertakes Notwithstanding anything contained herein to perform only the contrary, this Agreement has been executed and delivered by Deutsche Bank Trust Company Delaware, not in its individual capacity but solely as Owner Trustee, and in no event shall it have any liability for the representations, warranties, covenants, agreements or other obligations specified of the Issuer hereunder or under the Notes or any of the other Transaction Documents or in any of the certificates, notices or agreements delivered pursuant thereto, as to all of which recourse shall be had solely to the assets of the Issuer. Under no circumstances shall the Owner Trustee be personally liable for the payment of any indebtedness or expense of the Issuer or be liable for the breach or failure of any obligations, representation, warranty or covenant made or undertaken by the Issuer under the Transaction Documents. For the purposes of this Agreement. The Issuer, in the performance of its duties or obligations hereunder, the Owner Trustee, Master ServicerTrustee shall be subject to, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither entitled to the Custodian nor any benefits of, the terms and provisions of its affiliatesArticles VI, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out VII and VIII of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damagesTrust Agreement.
(b) Except Notwithstanding anything contained herein to the contrary, this Agreement has been executed and delivered by Citibank, N.A., not in its individual capacity but solely as provided Indenture Trustee, and in Section 2, the Custodian makes no warranty or representation and has no responsibility event shall it have any liability for the completenessrepresentations, validitywarranties, sufficiencycovenants, value, genuineness, ownership, agreements or transferability other obligations of the Mortgage Loans Issuer under the Notes or any of the documents other Transaction Documents or in any of the Mortgage Files.
(c) The Custodian need not expend certificates, notices or risk its own funds agreements delivered pursuant thereto, as to all of which recourse shall be had solely to the assets of the Issuer. Under no circumstances shall the Indenture Trustee be personally liable for the payment of any indebtedness or otherwise incur financial liability expense of the Issuer or be liable for the breach or failure of any obligations, representation, warranty or covenant made or undertaken by the Issuer under the Transaction Documents. For the purposes of this Agreement, in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoingobligations hereunder, the Custodian may rely on and Indenture Trustee shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable forsubject to, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement entitled to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part benefits of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice terms and provisions of Article VI of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the CustodianIndenture.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 8 contracts
Samples: Sale and Servicing Agreement (Volkswagen Auto Loan Enhanced Trust 2012-2), Sale and Servicing Agreement (Volkswagen Auto Loan Enhanced Trust 2012-2), Sale and Servicing Agreement (Volkswagen Auto Loan Enhanced Trust 2012-1)
Limitation of Liability. (a) The Custodian undertakes Notwithstanding anything contained herein to perform only the contrary, this Agreement has been executed and delivered by Citibank, N.A., not in its individual capacity but solely as Owner Trustee, and in no event shall it have any liability for the representations, warranties, covenants, agreements or other obligations specified of the Issuer hereunder or under the Notes or any of the other Transaction Documents or in any of the certificates, notices or agreements delivered pursuant thereto, as to all of which recourse shall be had solely to the assets of the Issuer. Under no circumstances shall the Owner Trustee be personally liable for the payment of any indebtedness or expense of the Issuer or be liable for the breach or failure of any obligations, representation, warranty or covenant made or undertaken by the Issuer under the Transaction Documents. For the purposes of this Agreement. The Issuer, in the performance of its duties or obligations hereunder, the Owner Trustee, Master ServicerTrustee shall be subject to, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither entitled to the Custodian nor any benefits of, the terms and provisions of its affiliatesArticles VI, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out VII and VIII of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damagesTrust Agreement.
(b) Except Notwithstanding anything contained herein to the contrary, this Agreement has been executed and delivered by Deutsche Bank Trust Company Americas, not in its individual capacity but solely as provided Indenture Trustee, and in Section 2, the Custodian makes no warranty or representation and has no responsibility event shall it have any liability for the completenessrepresentations, validitywarranties, sufficiencycovenants, value, genuineness, ownership, agreements or transferability other obligations of the Mortgage Loans Issuer under the Notes or any of the documents other Transaction Documents or in any of the Mortgage Files.
(c) The Custodian need not expend certificates, notices or risk its own funds agreements delivered pursuant thereto, as to all of which recourse shall be had solely to the assets of the Issuer. Under no circumstances shall the Indenture Trustee be personally liable for the payment of any indebtedness or otherwise incur financial liability expense of the Issuer or be liable for the breach or failure of any obligations, representation, warranty or covenant made or undertaken by the Issuer under the Transaction Documents. For the purposes of this Agreement, in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoingobligations hereunder, the Custodian may rely on and Indenture Trustee shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable forsubject to, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement entitled to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part benefits of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice terms and provisions of Article VI of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the CustodianIndenture.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 8 contracts
Samples: Sale and Servicing Agreement (Volkswagen Auto Loan Enhanced Trust 2014-2), Sale and Servicing Agreement (Volkswagen Auto Loan Enhanced Trust 2014-2), Sale and Servicing Agreement (Volkswagen Auto Lease/Loan Underwritten Funding, LLC)
Limitation of Liability. (a) The Custodian undertakes None of the Sub-Advisors guarantee the future performance of any Account or any specific level of performance, the success of any investment decision or strategy that any Sub-Advisor may use, or the success of any Sub-Advisor’s overall management of any Account. None of the Sub-Advisors provide any express or implied warranty as to perform only the obligations specified in this Agreementperformance or profitability of the Account nor any part thereof nor that any specific investment objectives will be successfully met. Investment decisions made by any Sub-Advisor on behalf of any Account managed by such Sub-Advisor are subject to various market, currency, economic, political and business risks, and those investment decisions will not always be profitable. The Issuer, the Owner Trustee, Master Servicer, Sub-Advisors shall be severally and Indenture Trustee acknowledge that no implied not jointly liable for their respective obligations exist and liabilities under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) To the maximum extent permitted by law, none of the Sub-Advisors, any affiliate of the Sub-Advisors or any member, partner, shareholder, principal, director, officer, employee or agent of the Sub-Advisors or any such affiliate (each, a “Sub-Advisor Party”) shall be liable for any loss, liability or damage (including attorney’s fees and other related expenses) (“Losses”) resulting from: (i) any act or failure to act by the Custodian, any administrator or any broker or dealer; or (ii) any act or omission by any Sub-Advisor or any permitted Sub-Advisor in connection with the performance of its services under this Agreement (including any Addendum hereto), except in cases of willful misconduct, gross negligence, bad faith or reckless disregard by any Sub-Advisor or any permitted Sub-Advisor of its obligations and duties under this Agreement (including any Addendum hereto). Except as provided in Section 2expressly set forth above, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability none of the Mortgage Loans Sub-Advisors shall have liability for any Losses suffered, and shall be fully indemnified by the Investment Manager for any Losses it may suffer, as the result of any actions it takes or does not take based on instructions or permissions received from any of the documents authorized persons of the Investment Manager reasonably believed by such Sub-Advisor to be genuine. Each Sub-Advisor may consult with legal counsel at its cost and expense (without limiting the reimbursement provisions set forth in this Agreement, including those set forth in Section 3(b)) concerning any question which may arise with reference to this Agreement or its duties hereunder, and the Mortgage Filesopinion of such counsel shall be full and complete protection with respect to, and none of the Sub-Advisors shall have liability for any Losses suffered as a result of, any action taken or suffered by any Sub-Advisor hereunder in good faith and in accordance with the opinion of such counsel. Under no circumstances shall any Sub-Advisor be liable for any special, incidental, exemplary, consequential, punitive, lost profits or indirect damages.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties federal and state securities laws may impose liabilities under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely certain circumstances on and shall be protected in acting persons who act in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable forfaith, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to therefore nothing in this Agreement unless the Custodian is a signatory party to that document will waive or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control limit any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree rights that the Custodian shall not be the party required to take the action Investment Manager or refrain from acting. In no event shall the Custodian any Company may have any responsibility to ascertain or take action except as expressly provided in this Agreementunder those laws.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 7 contracts
Samples: Master Sub Advisory Agreement, Master Sub Advisory Agreement (Athene Annuity & Life Co), Master Sub Advisory Agreement (Athene Holding LTD)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents UMBFS shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Funds in connection with the matters to which this Agreement relates, indirectexcept for a loss resulting from UMBFS’ willful misfeasance, punitivebad faith or negligence in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement. Furthermore, UMBFS shall not be liable for (i) any action taken or omitted to be taken in accordance with or in reasonable reliance upon written or oral instructions, communications, data, documents or information (without investigation or verification) received by UMBFS from an authorized officer, representative or agent of the Trust, (ii) its reliance on the security valuations without investigation or verification provided by pricing service(s), or special damagesrepresentatives of the Trust, or (iii) any action taken or omission by the Trust, investment adviser(s) or any past or current service provider.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has UMBFS assumes no responsibility hereunder, and shall not be liable, for the completenessany default, validitydamage, sufficiencyloss of data or documents, valueerrors, genuineness, ownership, or transferability of the Mortgage Loans delay or any of the documents in the Mortgage Filesother loss whatsoever caused by events beyond its reasonable control. UMBFS will, however, take all reasonable steps to minimize service interruptions for any period that such interruption continues beyond its control.
(c) The Custodian need not expend Trust agrees to indemnify and hold harmless UMBFS, its employees, agents, officers, directors, affiliates and nominees (collectively, the “Indemnified Parties”) from and against any and all claims, demands, actions and suits, and from and against any and all judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees and other expenses of every nature and character which may be asserted against or risk its own funds incurred by any Indemnified Party or otherwise incur financial liability for which any Indemnified Party may be held liable (a “Claim”) arising out of or in any way relating to (i) UMBFS’ actions or omissions except to the extent a Claim resulted from UMBFS’ willful misfeasance, bad faith, or negligence in the performance of any its duties hereunder or from reckless disregard by it of its obligations and duties under this Agreementhereunder; (ii) UMBFS’ reasonable reliance on, implementation of or use of (without investigation or verification) communications, instructions, requests, directions, information, data, security valuations, records and documents received by UMBFS from any other representative or agent of the Trust, or in the exercise of its rights, if the Custodian believes that repayment (iii) any action taken by or omission of the funds Trust, investment adviser(s) or adequate indemnity against the risk any past or liability is not reasonably assured to itcurrent service provider.
(d) Without limiting In no event and under no circumstances shall the generality of the foregoingIndemnified Parties be liable to anyone, including, without limitation, the Custodian may rely on and shall be protected in acting in good faith on other party, under any notice theory of tort, contract, strict liability or other communication received by it that it reasonably believes legal or equitable theory for lost profits, exemplary, punitive, special, indirect or consequential damages for any act or failure to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties act under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has regardless of whether such damages were foreseeable and even if advised of the duty to act or refrain from acting, possibility thereof. The indemnity and defense provisions set forth in this Section 5 shall indefinitely survive the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in termination and/or assignment of this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 7 contracts
Samples: Fund Accounting Agreement (Fpa Funds Trust), Fund Accounting Agreement (Fpa Funds Trust), Fund Accounting Agreement (Chartwell Funds)
Limitation of Liability. (a) The Custodian undertakes Distributor and the Transfer Agent undertake to perform such duties and only the obligations specified in this Agreement. The Issuersuch duties as are expressly set forth herein, the Owner Trustee, Master Serviceror expressly incorporated herein by reference, and Indenture Trustee acknowledge that no implied covenants or obligations exist under shall be read into this AgreementAgreement against the Distributor or the Transfer Agent.
(b) In the absence of bad faith, gross negligence or willful misconduct on its part, neither the Distributor, nor the Transfer Agent, whether acting directly or through agents or attorneys as provided in paragraph (d) below, shall be liable for any action taken, suffered or omitted or for any error of judgment made by any of them in the performance of their duties hereunder. Neither the Custodian Distributor nor any of its affiliates, officers, directors, employees, or agents the Transfer Agent shall be liableliable for any error of judgment made in good faith unless the party exercising such shall have been grossly negligent in ascertaining the pertinent facts necessary to make such judgment. In no event shall the Distributor or the Transfer Agent be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profit), even if such parties have been advised of the likelihood of such loss or damage and regardless of the form of action. In no event shall the Distributor or the Transfer Agent be liable for the acts or omissions of DTC, NSCC or any other securities depository or clearing corporation.
(c) Neither the Authorized Participant, Distributor nor the Transfer Agent shall be responsible or liable for any failure or delay in the performance of their obligations under this Agreement arising out of or caused, directly or indirectly, for any damages by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or expenses arising out military disturbances; terrorism; sabotage; epidemics; riots; interruptions; loss or malfunction of the services performed under this Agreement other than damages that result from their gross negligenceutilities, willful misconduct, computer (hardware or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, software) or special damagescommunications service; accidents; labor disputes; acts of civil or military authority or governmental actions.
(bd) Except as provided The Distributor and the Transfer Agent may conclusively rely upon, and shall be fully protected in Section 2acting or refraining from acting upon, the Custodian makes no warranty any communication authorized hereby and upon any written or representation and has no responsibility for the completenessoral instruction, validitynotice, sufficiencyrequest, value, genuineness, ownership, direction or transferability of the Mortgage Loans or any of the documents in the Mortgage Filesconsent reasonably believed by them to be genuine.
(ce) The Custodian need Transfer Agent shall not be required to advance, expend or risk its own funds or otherwise incur or become exposed to financial liability in the performance of any its duties hereunder, except as may be required as a result of its duties under this Agreementown gross negligence, willful misconduct or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to itbad faith.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 7 contracts
Samples: Authorized Participant Agreement (Pointbreak ETF Trust), Authorized Participant Agreement (Pointbreak ETF Trust), Authorized Participant Agreement (Pointbreak ETF Trust)
Limitation of Liability. (a) The Custodian undertakes to perform only Sub-Adviser shall exercise its best judgment in rendering the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist services provided by it under this Agreement. Neither ; provided, however, that the Custodian nor any of its affiliatesSub-Adviser, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and including its officers, directors, employeesemployees and agents, and agents will shall not be liable subject to any liability under this Agreement for any consequentialerror of judgment or any loss arising out of any investment or other act or omission in the course of, indirect, punitiveconnected with, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance arising out of any of its duties service to be rendered under this Agreement, except by reason of willful misfeasance, fraud, bad faith or negligence in the exercise of its rights, if the Custodian believes that repayment performance or non-performance of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality Sub-Adviser’s duties hereunder; by reason of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed reckless disregard by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any Sub-Adviser of its duties hereunder; or by reason of any violation by the Sub-Adviser of any applicable federal or state law or regulation or any duty imposed under this Agreement through any of its agents, attorneys-in-fact, federal or affiliatesstate law. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agentsThe U.S. securities laws impose liabilities under certain circumstances on persons who act in good faith, and employees) that performs duties therefore nothing herein shall in connection with this Agreement shall be entitled to the same benefits any way constitute a waiver or limitation of the indemnification, waiver, and other protective provisions to any rights which the Custodian is entitled Adviser may have under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) U.S. securities laws. The Custodian Sub-Adviser shall not be responsible for delays any loss incurred by reason of any act or failures omission of the Custodian or of any broker, dealer, underwriter or issuer selected by the Sub-Adviser with reasonable care. The Adviser, including its officers, directors, employees and agents, shall not be subject to any liability under this Agreement for any error of judgment or any loss arising out of any investment or other act or omission in performance resulting from acts beyond its control. Acts beyond its control include acts of Godthe course of, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakesconnected with, or other disastersarising out of any service to be rendered under this Agreement, except by reason of willful misfeasance, fraud, bad faith or negligence in the performance or non-performance of the Adviser’s duties hereunder; by reason of reckless disregard by the Adviser of its duties hereunder; or by reason of any violation by the Adviser of any applicable federal or state law or regulation or any duty imposed under federal or state law. The U.S. securities laws impose liabilities under certain circumstances on persons who act in good faith, and therefore nothing herein shall in any way constitute a waiver or limitation of any rights which the Sub-Adviser may have under U.S. securities laws. The Adviser shall not be responsible for any loss incurred by reason of any act or omission of the Sub-Adviser.
Appears in 7 contracts
Samples: Investment Sub Advisory Agreement (Penn Series Funds Inc), Investment Sub Advisory Agreement (Penn Series Funds Inc), Investment Sub Advisory Agreement (Penn Series Funds Inc)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The IssuerBank, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliatesdirectors, officers, directors, employees, or employees and agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, error of judgment or special damages.
(b) Except as provided mistake of law or for any loss suffered by the Fund in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in connection with the performance of any of its obligations and duties under this Agreement, except a loss resulting from willful misfeasance, bad faith or negligence in the exercise performance of such obligations and duties, or by reason of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed reckless disregard thereof by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian Bank or its property or business or on employees. The Fund will indemnify the ability of the Custodian to perform Bank, its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agentsemployees and agents against and hold it and them harmless from any and all losses, claims, damages, liabilities or expenses (including legal fees and employeesexpenses) that performs duties resulting from any claim, demand, action or suit (i) arising out of the actions or omissions of the Fund, including but not limited to, inaccurate Daily Sales Reports and misidentification of Exempt Transactions; (ii) arising out of the offer or sale of any securities of the Fund in connection violation of (x) any requirement under the federal securities laws or regulations, (y) any requirement under the securities laws or regulations of any state, or (z) any stop order or other determination or ruling by any federal or state agency with this Agreement shall be entitled respect to the same benefits offer or sale of such securities; or (iii) not resulting from the willful misfeasance, bad faith or negligence of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for Bank in the performance of those duties.such obligations and duties or by reason of its reckless disregard thereof;
(jb) The Custodian shall Bank will indemnify the Fund, its trustees or directors, officers, employees and agents against and hold it and them harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable legal fees and expenses) where such loss, claim, demand, action or suit brought against the Fund arises as a direct result, and to the extent, of the Bank’s failure to exercise the standard of care in Section 6(a) above, and not be responsible for delays from the willful misfeasance, bad faith or failures in performance resulting from acts beyond its control. Acts beyond its control include acts negligence of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.Fund;
Appears in 7 contracts
Samples: Services Agreement (Eaton Vance Floating-Rate 2022 Target Term Trust), Services Agreement (Eaton Vance High Income 2021 Target Term Trust), Services Agreement (Eaton Vance Municipal Income Term Trust)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Investment Adviser shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Agreement relates, indirectexcept a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services or a loss resulting from willful misfeasance, punitive, bad faith or special damages.
(b) Except as provided in Section 2, gross negligence on the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability part of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability Investment Adviser in the performance of any its duties or from reckless disregard by it of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on obligations and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through ("disabling conduct"). The Portfolio will indemnify the Investment Adviser against and hold it harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) resulting from any claim, demand, action or suit not resulting from disabling conduct by the Investment Adviser. Indemnification shall be made only following: (i) a final decision on the merits by a court or other body before whom the proceeding was brought that the Investment Adviser was not liable by reason of its agentsdisabling conduct or (ii) in the absence of such a decision, attorneys-in-facta reasonable determination, or affiliates. Any agent, attorney-in-fact, or affiliate based upon a review of the Custodian facts, that the Investment Adviser was not liable by reason of disabling conduct by (and any affiliate's a) the vote of a majority of a quorum of directors of the Fund who are neither "interested persons" of the Fund nor parties to the proceeding ("disinterested non-party directors, officers, agents, and employees") that performs duties or (b) an independent legal counsel in connection with this Agreement a written opinion. The Investment Adviser shall be entitled to advances from the same benefits Portfolio for payment of the indemnification, waiver, and other protective provisions reasonable expenses incurred by it in connection with the matter as to which it is seeking indemnification in the Custodian manner and to the fullest extent permissible under the Maryland General Corporation Law. The Investment Adviser shall provide to the Portfolio a written affirmation of its good faith belief that the standard of conduct necessary for indemnification by the Portfolio has been met and a written undertaking to repay any such advance if it should ultimately be determined that the standard of conduct has not been met. In addition, at least one of the following additional conditions shall be met: (a) the Investment Adviser shall provide a security in form and amount acceptable to the Portfolio for its undertaking; (b) the Portfolio is entitled under this Agreement, but the Custodian shall remain responsible for the performance insured against losses arising by reason of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.the
Appears in 7 contracts
Samples: Investment Advisory Agreement (RBB Fund Inc), Investment Advisory Agreement (RBB Fund Inc), Investment Advisory Agreement (RBB Fund Inc)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The IssuerIBT, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliatesdirectors, officers, directors, employees, or employees and agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Fund in connection with the performance of its obligations and duties under this Agreement, indirectexcept a loss resulting from willful misfeasance, punitivebad faith or negligence in the performance of such obligations and duties, or special by reason of its reckless disregard thereof. The Fund will indemnify IBT, its directors, officers, employees and agents against and hold it and them harmless from any and all losses, claims, damages, liabilities or expenses (including legal fees and expenses) resulting from any claim, demand, action or suit (i) arising out of the actions or omissions of the Fund, including, but not limited to, inaccurate Daily Sales Reports and misidentification of Exempt Transactions; (ii) arising out of the offer or sale of any securities of the Fund in violation of (x) any requirement under the federal securities laws or regulations, (y) any requirement under the securities laws or regulations of any state, or (z) any stop order or other determination or ruling by any federal or state agency with respect to the offer or sale of such securities; or (iii) not resulting from the willful misfeasance, bad faith or negligence of IBT in the performance of such obligations and duties or by reason of its reckless disregard thereof.
(b) Except as provided in Section 2, IBT may apply to the Custodian makes no warranty or representation Fund at any time for instructions and has no responsibility may consult counsel for the completeness, validity, sufficiency, value, genuineness, ownershipFund, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability counsel, and with accountants and other experts with respect to any matter arising in the performance of any of connection with its duties under this Agreementhereunder, and IBT shall not be liable or in the exercise of its rights, if the Custodian believes that repayment of the funds accountable for any action taken or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting omitted by it in good faith on any notice in accordance with such instruction, or with the opinion of such counsel, accountants, or other communication received by it that experts. IBT shall not be liable for any act or omission taken or not taken in reliance upon any document, certificate or instrument which it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian be signed or presented by the proper person or persons. IBT shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed held to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) any change of other documents and agreements executed or delivered in connection withauthority of any officers, employees, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy agents of the document or agreement to Fund until receipt of written notice thereof has been received by IBT from the CustodianFund.
(gc) The Custodian shall have only In the event IBT is unable to perform, or is delayed in performing, its obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by under the parties to this Agreement or their successors and assigns. If any provision terms of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership because of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockoutslegal constraint, riotsgovernment actions, acts war, emergency conditions, interruption of war electrical power or terrorismother utilities, epidemicsequipment or transmission failure or damage reasonably beyond its control or other causes reasonably beyond its control, nationalizationIBT shall not be liable to the Fund for any damages resulting from such failure to perform, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakesdelay in performance, or other disastersotherwise from such causes.
(d) In no event shall IBT be liable for special, incidental or consequential damages, even if advised of the possibility of such damages.
Appears in 7 contracts
Samples: Administration Agreement (Merrimac Series), Administration Agreement (Merrimac Master Portfolio), Administration Agreement (Merrimac Series)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's ’s directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 6 contracts
Samples: Indenture (CWHEQ Revolving Home Equity Loan Trust, Series 2007-G), Indenture (CWHEQ Revolving Home Equity Loan Trust, Series 2007-D), Indenture (CWHEQ Revolving Home Equity Loan Trust, Series 2007-E)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The IssuerExcept as otherwise provided by law, I understand and agree that you, the Owner TrusteeClearing Broker, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliatesyour Affiliates, or your, your Affiliates’, or the Clearing Broker’s respective officers, directors, employees, or agents (each such entity, an “Indemnified Party”) shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialexpenses (including legal expenses and attorneys’ fees), losses, costs, damages, liabilities, demands, debts, obligations, penalties, charges, claims, causes of action, penalties, fines, and taxes of any kind or nature (whether known or unknown, absolute or contingent, liquidated or unliquidated, direct or indirect, punitivedue or to become due, accrued or not accrued, asserted or unasserted, or special damages.
otherwise) (bcollectively, “Losses”) Except as provided in Section 2by or with respect to any matters pertaining to my RHC Account, my use of the Robinhood Platform, the Custodian makes no warranty or representation RHC Services, and has no responsibility for other services provided by the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties Indemnified Parties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, except to the extent that such Losses are actual Losses and are determined by a court of competent jurisdiction or an arbitration panel in a final non-appealable judgment or order to have resulted solely from your, the terms are referencedClearing Broker’s or any of your Affiliates’ gross negligence or willful misconduct. I also understand and agree that Indemnified Parties will have no responsibility or liability to me in connection with the performance or non-performance by any Market Actor or other third party (including banks) of their obligations relative to my RHC Account. I further understand and agree that Indemnified Parties will have no liability, to me or to third parties, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than whatsoever for: (i) any jurisdiction where any Mortgage File is Losses resulting from a cause over which Indemnified Parties do not have direct control, including the failure of mechanical equipment, unauthorized access, theft, operator errors, government actions or may be held by the Custodian from time to time under this Agreementrestrictions, force majeure events, or suspension of trading; and (ii) any jurisdiction where its ownership of property special, indirect, incidental, consequential, punitive, or conduct of business requires such qualification exemplary damages (including lost profits, trading losses and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability damages) that I may incur in connection with my RHC Account, my use of the Custodian to perform its duties Robinhood Platform, the RHC Services, and other services provided by Indemnified Parties under this Agreement. I ACCEPT ALL RISKS ASSOCIATED WITH THE USE OF RHC TO CONDUCT TRANSACTIONS, INCLUDING, BUT NOT LIMITED TO, IN CONNECTION WITH THE FAILURE OF HARDWARE, SOFTWARE, AND INTERNET CONNECTIONS.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 6 contracts
Samples: User Agreement, User Agreement, User Agreement
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified a. Notwithstanding anything in this Agreement. The IssuerAgreement to the contrary, in no event shall the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor Delegate or any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employeesemployees or agents (collectively, the "Delegate Indemnified Parties") be liable to the Fund or any third party, and agents will not be liable for the Fund shall indemnify and hold the Delegate and the Delegate Indemnified Parties harmless from and against any consequentialand all loss, indirectdamage, punitiveliability, actions, suits, claims, and reasonable costs and expenses, including reasonable legal fees, (a "Claim") arising as a result of any act or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability omission of the Mortgage Loans Delegate or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties Delegate Indemnified Party under this Agreement, except to the extent that any Claim results from the negligence, willful misfeasance, bad faith, or in the exercise reckless disregard of its rights, if duties on the Custodian believes that repayment part of the funds Delegate or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) any Delegate Indemnified Party. Without limiting the generality of the foregoing, neither the Custodian may rely on and Delegate nor the Delegate Indemnified Parties shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation the Delegate and the Delegate Indemnified Parties shall be indemnified against, any Claim arising as a result of:
i. Any act or warranty with respect toomission by the Delegate or any Delegate Indemnified Party in reasonable good faith reliance upon the terms of this Agreement, any resolution of the validityBoard, adequacytelegram, telecopy, notice, request, certificate or perfection other instrument from an Authorized Representative reasonably believed by the Delegate to be genuine; or
ii. Any information that the Delegate provides or does not provide under Section 10 hereof.
b. The Delegate agrees to indemnify and hold harmless each Fund, its Directors / Trustees, and its affiliates and their officers and employees ("Fund Indemnified Parties") from and against any and all Claims arising as a result of any lien on act or security interest in omission of the Delegate or any Mortgage Loan.
(f) Any other provision of Delegate Indemnified Party under this Agreement to the contrary notwithstandingextent resulting from the negligence, the Custodian shall have no notice ofwillful malfeasance, and shall not be bound by, any other document or agreement executed or delivered in connection withbad faith, or intended to control any reckless disregard of its duties on the part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed Delegate or delivered in connection with, or intended the Delegate Indemnified Parties.
c. Notwithstanding anything to control any part of, the transactions anticipated by or referred to contrary in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall a party be liable to the Custodian have other party or any responsibility to ascertain third party for lost profits or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian lost revenues or any duty to qualify to do business in special, consequential, punitive or incidental damages of any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties kind whatsoever in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those dutiesor any activities hereunder.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 6 contracts
Samples: Master Delegation Agreement (Mainstay Funds), Master Delegation Agreement (Mainstay Funds), Master Delegation Agreement (Mainstay Vp Series Fund Inc)
Limitation of Liability. Assignor acknowledges that Assignee is acting solely as Assignee in connection with this Assignment and not in its personal capacity. As a result, Assignor expressly agrees that Assignee, its members, officers and agents shall not be subject to any personal liability whatsoever to any person in connection with the affairs of this Assignment, except for its own misconduct knowingly and intentionally committed in bad faith. No provision of this Agreement shall be construed to relieve the Assignee from liability for its own misconduct knowingly and intentionally committed in bad faith, except that:
(a) The Custodian undertakes Assignee shall not be required to perform only any duties or obligations except for the performance of such duties and obligations specified as are specifically set forth in this Agreement. The Issuer, the Owner Trustee, Master ServicerAssignment, and Indenture Trustee acknowledge that no implied covenants or obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of read into this Assignment against the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damagesAssignee.
(b) Except as provided in Section 2In the absence of bad faith on the part of the Assignee, the Custodian makes no warranty Assignee may conclusively rely, as to the truth, accuracy and completeness thereof, on the statements and certificates or representation opinions furnished to the Assignee by the Assignor and has no responsibility for conforming to the completeness, validity, sufficiency, value, genuineness, ownership, or transferability requirements of the Mortgage Loans or any of the documents in the Mortgage Filesthis Assignment.
(c) The Custodian need Assignee shall not expend or risk its own funds or otherwise incur financial liability be liable for any error of judgment made in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to itgood faith.
(d) Without limiting The Assignee shall not be liable with respect to any action taken or omitted to be taken by it in accordance with a written opinion of legal counsel addressed to the generality Assignee. In connection with the foregoing, the assignment estate shall defend, indemnify and hold the Assignee and its past and present officers, members, managers, directors, employees, counsel, agents, attorneys, parent, subsidiaries, affiliates, successors and assigns, including without limitation Sherwood Partners LLC (collectively, the "Indemnified Persons") harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses and disbursements (including reasonable attorneys' fees and costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against any such Indemnified Person in any way relating to or arising out of this General Assignment, the Fee Letter, any other document contemplated by or referred to herein or therein, the transactions contemplated hereby or thereby, or any action taken or omitted by any Indemnified Person under or in connection with any of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized including, without limitation, with respect to all matters pertaining any investigation, litigation or proceeding related to this Agreement and its duties under this Agreement.
(e) The Custodian shall or arising out of any of the foregoing, whether or not be responsible or liable forany Indemnified Person is a party thereto, and makes no representation or warranty with respect toincluding, without limitation, any other Indemnified Claims (defined below), provided, that the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian assignment estate shall have no notice ofobligation hereunder to any Indemnified Person with respect to indemnified claims to the extent resulting from the willful misconduct or gross negligence of any Indemnified Person. The foregoing indemnification shall survive any termination of this General Assignment or the transactions contemplated hereby. For purposes hereof, "Indemnified Claims" means any and shall not all claims, demands, actions, causes of action, judgments, obligations, liabilities, losses, damages and consequential damages, penalties, fines, costs, fees, expenses and disbursements (including without limitation, fees and expenses of attorneys and other professional consultants and experts in connection with investigation or defense) of every kind, known or unknown, existing or hereafter arising, foreseeable or unforeseeable, which may be bound imposed upon, threatened or asserted against, or incurred or paid by, any other document or agreement executed or delivered Indemnified Person at any time and from time to time, because of, resulting from, in connection with, or intended to control arising out of any part oftransaction, act, omission, event or circumstance in any way connected with this General Assignment, the transactions anticipated Fee Letter, any other document contemplated by or referred to in this Agreement unless the Custodian is a signatory party to that document herein or agreement. Notwithstanding the foregoing sentencetherein, the Custodian shall be deemed to have notice transactions contemplated hereby or thereby, or any action taken or omitted by any Indemnified Person under or in connection with any of the terms (foregoing, including definitions but not otherwise set forth in full in this Agreement) of other documents and agreements executed limited to economic loss, property damage, personal injury or delivered death in connection with, or intended to control any part occurring on or in the vicinity of, any assets of the transactions anticipated assignment estate through any cause whatsoever, any act performed or omitted to be performed under this General Assignment, any other document contemplated by or referred to in this Agreementherein, to the extent the terms are referencedtransactions contemplated hereby, or are incorporated any action taken or omitted by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document any Indemnified Person under or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits any of the indemnificationforegoing, waiverany breach by Assignor of any representation, warranty, covenant, agreement or condition contained herein or in any other agreement between Assignor and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those dutiesAssignee.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 6 contracts
Samples: Asset Purchase Agreement (Tecogen Inc.), Asset Purchase Agreement (Tecogen Inc.), Asset Purchase Agreement (Tecogen Inc)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Investment Adviser shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Agreement relates, indirectexcept a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services or a loss resulting from willful misfeasance, punitive, bad faith or special damages.
(b) Except as provided in Section 2, gross negligence on the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability part of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability Investment Adviser in the performance of any its duties or from reckless disregard by it of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on obligations and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through (“disabling conduct”). The Portfolio will indemnify the Investment Adviser against and hold it harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) resulting from any claim, demand, action or suit not resulting from disabling conduct by the Investment Adviser. Indemnification shall be made only following: (i) a final decision on the merits by a court or other body before whom the proceeding was brought that the Investment Adviser was not liable by reason of its agentsdisabling conduct or (ii) in the absence of such a decision, attorneys-in-facta reasonable determination, or affiliates. Any agent, attorney-in-fact, or affiliate based upon a review of the Custodian facts, that the Investment Adviser was not liable by reason of disabling conduct by (and any affiliate's a) the vote of a majority of a quorum of directors of the Portfolio who are neither “interested persons” of the Fund nor parties to the proceeding (“disinterested non-party directors, officers, agents, and employees”) that performs duties or (b) an independent legal counsel in connection with this Agreement a written opinion. The Investment Adviser shall be entitled to advances from the same benefits Portfolio for payment of the indemnification, waiver, and other protective provisions reasonable expenses incurred by it in connection with the matter as to which it is seeking indemnification in the Custodian manner and to the fullest extent permissible under the Maryland General Corporation Law. The Investment Adviser shall provide to the Portfolio a written affirmation of its good faith belief that the standard of conduct necessary for indemnification by the Portfolio has been met and a written undertaking to repay any such advance if it should ultimately be determined that the standard of conduct has not been met. In addition, at least one of the following additional conditions shall be met: (a) the Investment Adviser shall provide a security in form and amount acceptable to the Portfolio for its undertaking; (b) the Portfolio is insured against losses arising by reason of the advance; or (c) a majority of a quorum of disinterested non-party directors, or independent legal counsel, in a written opinion, shall have determined, based upon a review of facts readily available to the Portfolio at the time the advance is proposed to be made, that there is reason to believe that the Investment Adviser will ultimately be found to be entitled to indemnification. Any amounts payable by the Portfolio under this Agreement, but Section shall be satisfied only against the Custodian shall remain responsible for assets of the performance Portfolio and not against the assets of those duties.
(j) any other investment portfolio of the Fund. The Custodian limitations on liability and indemnification provisions of this Section shall not be responsible applicable to any losses, claims, damages, liabilities or expenses arising from the Investment Adviser’s rights to the Portfolio’s name. The Investment Adviser shall indemnify and hold harmless the Fund and the Portfolio for delays or failures any claims arising from the use of the term “Robeco” in performance resulting from acts beyond its control. Acts beyond its control include acts the name of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disastersPortfolio.
Appears in 6 contracts
Samples: Investment Advisory Agreement (RBB Fund Inc), Investment Advisory Agreement (RBB Fund Inc), Investment Advisory Agreement (RBB Fund Inc)
Limitation of Liability. (a) 6.1 The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Distributor shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, error of judgment or special damages.
(b) Except as provided mistake of law or for any loss suffered by the Corporation in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in connection with the performance of any of its obligations and duties under this Agreement, except a loss resulting from the Distributor's willful misfeasance, bad faith or gross negligence in the exercise performance of such duties and obligations, or by reason of its rightsreckless disregard thereof. Furthermore, if notwithstanding anything herein to the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoingcontrary, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian Distributor shall not be responsible liable for any action taken or liable for, and makes no representation omitted to be taken in accordance with instructions received by the Distributor from an officer or warranty with respect to, representative of the validity, adequacyCorporation, or perfection for the acts or omissions of any lien on the Corporation's prior distributor or security interest in any Mortgage Loanother service providers.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have 6.2 The Distributor assumes no notice ofresponsibility hereunder, and shall not be bound byliable, for any default, damage, loss of data, errors, delay or any other document loss whatsoever caused by events beyond its reasonable control. The Distributor will, however, take all reasonable steps to minimize service interruptions for any period that such interruption continues beyond its control.
6.3 Neither party may assert any cause of action against the other party under this Agreement that accrued more than two (2) years prior to the filing of suit (or agreement executed or delivered in connection with, or intended commencement of arbitration proceedings) alleging such cause of action. Each party shall have the duty to control any part of, mitigate damages for which the transactions anticipated by or referred to other party may become responsible. Notwithstanding anything in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth contrary, in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have either party, its affiliates or any responsibility to ascertain of its or take action except their directors, officers, employees, agents or subcontractors, be liable for lost profits or consequential damages. This
is a service agreement. Except as expressly provided in this Agreement.
, the Distributor disclaims all other representations or warranties express or implied, made to the Corporation, a Fund or any other person, including without limitation, any warranties of merchantability, fitness for a particular purpose or otherwise (hirrespective of any course of dealing, custom or usage of trade) Nothing in this Agreement shall impose on the Custodian of any duty services or any goods provided incidental to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time services provided under this Agreement, and (ii) . The Distributor disclaims any jurisdiction where its ownership warranty of property title or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under non-infringement except as otherwise set forth in this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 6 contracts
Samples: Distribution Agreement (Umb Scout Worldwide Fund Inc), Distribution Agreement (Umb Scout Worldwide Fund Inc), Distribution Agreement (Umb Scout Worldwide Fund Inc)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian Trustees shall not be responsible or liable for, and makes no representation in any event for any neglect or warranty with respect to, the validity, adequacy, or perfection wrongdoing of any lien on officer, agent, employee, investment adviser or security interest in manager, principal underwriter or custodian, nor shall any Mortgage Loan.
(f) Any other provision Trustee be responsible for the act or omission of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document Trustee. Nothing in this Declaration of Trust shall protect any Trustee against any liability to which such Trustee would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or agreement reckless disregard of the duties involved in the conduct of the office of Trustee. Every note, bond, contract, instrument, certificate, Share or undertaking and every other act or thing whatsoever executed or delivered done by or on behalf of the Trust or the Trustees or any of them in connection with, or intended to control any part of, with the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian Trust shall be conclusively deemed to have been executed or done only in or with respect to their or his capacity as Trustees or Trustee and neither such Trustees or Trustee nor the Shareholders shall be personally liable thereon. Every note, bond, contract, instrument, certificate or undertaking made or issued by the Trustees or by any officers or officer shall give notice that this Declaration of Trust is on file with the Secretary of State of The Commonwealth of Massachusetts and shall recite that the same was executed or made by or on behalf of the terms (including definitions Trust by them as Trustees or Trustee or as officers or officer and not otherwise set forth in full in this Agreement) individually and that the obligations of other documents such instrument are not binding upon any of them or the Shareholders individually but are binding only upon the assets and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy property of the document Trust or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision particular series of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this AgreementShares, and (ii) any jurisdiction where its ownership of property may contain such further recital as he or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian they may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreementdeem appropriate, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian omission thereof shall not operate to bind any Trustees or Trustee or officers or officer or Shareholders or Shareholder individually. All persons extending credit to, contracting with or having any claim against the Trust or a particular series of Shares shall look only to the assets of the Trust or the assets of that particular series of Shares, as the case may be, for payment under such credit, contract or claim; and neither the Shareholders nor the Trustees, nor any of the Trust's officers, employees or agents, whether past, present or future, shall be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasterspersonally liable therefor.
Appears in 6 contracts
Samples: Agreement and Declaration of Trust (Zurich Money Funds), Agreement and Declaration of Trust (Investors Fund Series), Trust Agreement (Zurich Yieldwise Money Fund)
Limitation of Liability. In addition to the limitations of liability contained in Sections 2 and 3 of this Agreement:
(a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Transfer Agent shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Trust or the Funds in connection with the matters to which this Agreement relates, indirectexcept for a loss resulting from Transfer Agent’s willful misfeasance, punitivebad faith or gross negligence in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement. Furthermore, Transfer Agent shall not be liable for: (1) any action taken or omitted to be taken in accordance with or in reliance upon Instructions, communications, data, documents or information (without investigation or verification) received by Transfer Agent from an officer or representative of the Trust or from any Authorized Person; or, (2) any action taken, or special damagesomission by, a Fund, the Trust, Investment Adviser, any Authorized Person or any past or current service provider (not including Transfer Agent).
(b) Except as provided in Section 2Notwithstanding anything herein to the contrary, the Custodian makes no warranty Transfer Agent will be excused from its obligation to perform any Service or representation and has no responsibility obligation required of it hereunder for the completenessduration that such performance is prevented by events beyond its reasonable control and shall not be liable for any default, validitydamage, sufficiencyloss of data or documents, valueerrors, genuineness, ownership, or transferability of the Mortgage Loans delay or any of the documents in the Mortgage Filesother loss whatsoever caused thereby. Transfer Agent will, however, take all reasonable steps to minimize service interruptions for any period that such interruption continues beyond its reasonable control.
(c) The Custodian need not expend In no event and under no circumstances shall the Indemnified Parties (as defined below) be liable to anyone, including, without limitation, the other party, under any theory of tort, contract, strict liability or risk its own funds other legal or otherwise incur financial liability in the performance equitable theory for lost profits, exemplary, punitive, special, indirect or consequential damages for any act or failure to act under any provision of any this Agreement regardless of its duties under this Agreement, or in the exercise of its rights, whether such damages were foreseeable and even if the Custodian believes that repayment advised of the funds or adequate indemnity against the risk or liability is not reasonably assured to itpossibility thereof.
(d) Without limiting Notwithstanding any other provision of this Agreement, Transfer Agent shall have no duty or obligation under this Agreement to inquire into, and shall not be liable for:
(i) the generality legality of the foregoingissue or sale of any Shares, the Custodian sufficiency of the amount to be received therefor, or the authority of the Trust, as the case may rely on and shall be, to request such sale or issuance;
(ii) the legality of a transfer, exchange, purchase or redemption of any Shares, the propriety of the amount to be protected paid therefor, or the authority of the Trust, as the case may be, to request such transfer, exchange or redemption;
(iii) the legality of the declaration of any dividend by the Trust, or the legality of the issue of any Shares in payment of any stock dividend;
(iv) the legality of any recapitalization or readjustment of Shares;
(v) Transfer Agent’s acting in good faith on any notice upon telephone or other communication electronic instructions relating to the purchase, transfer, exchange or redemption of Shares received by it Transfer Agent in accordance with procedures established by Transfer Agent and the Trust; or
(vi) the offer or sale of Shares in violation of any requirement under the securities laws or regulations of any jurisdiction that it reasonably believes to such Shares be genuine and duly authorized qualified for sale in such state or in violation of any stop order or determination or ruling by any state with respect to all matters pertaining to this Agreement and its duties under this Agreementthe offer or sale of such Shares in such state.
(e) The Custodian Transfer Agent may, in effecting transfers and redemptions of Shares, rely upon those provisions of the Uniform Act for the Simplification of Fiduciary Security Transfers (or such other statutes which protect it and the Trust in not requiring complete fiduciary documentation) and shall not be responsible for any act done or liable foromitted by it in good faith in reliance upon such laws. Notwithstanding the foregoing or any other provision contained in this Agreement to the contrary, Transfer Agent shall be fully protected by each Fund in not requiring any instruments, documents, assurances, endorsements or guarantees, including, without limitation, any Medallion signature guarantees, in connection with a redemption, exchange or transfer of Shares whenever Transfer Agent reasonably believes that requiring the same would be inconsistent with the transfer, exchange and makes no representation or warranty with respect to, redemption procedures described in the validity, adequacy, or perfection of any lien on or security interest in any Mortgage LoanProspectus.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice The obligations of the terms (including definitions not otherwise set forth in full in this Agreement) parties under Section 6 shall indefinitely survive the termination of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 6 contracts
Samples: Transfer Agency Agreement (BCM Focus Funds), Transfer Agency Agreement (Destra Investment Trust), Transfer Agency Agreement (EntrepreneurShares Series Trust)
Limitation of Liability. (a) Assignor acknowledges that Assignee is acting solely as Assignee in connection with this Assignment and not in its personal capacity. As a result, Assignor expressly agrees that Assignee, its members, officers and agents shall not be subject to any personal liability whatsoever to any person in connection with the affairs of this Assignment, except for its own misconduct knowingly and intentionally committed in bad faith, by gross negligence or in violation of law. No provision of this Agreement shall be construed to relieve the Assignee from liability for its own misconduct knowingly and intentionally committed in bad faith, by gross negligence or violation of law except that:
A. The Custodian undertakes Assignee shall not be required to perform only any duties or obligations except for the performance of such duties and obligations specified as are specifically set forth in this AgreementAssignment, and no implied covenants or obligations shall be read into this Assignment against the Assignee. In the absence of bad faith on the part of the Assignee, the Assignee may conclusively rely, as to the truth, accuracy and completeness thereof, on the statements and certificates or opinions furnished to the Assignee by the Assignor and conforming to the requirements of this Assignment. The IssuerAssignee shall not be liable for any error of judgment made in good faith. The Assignee shall not be liable with respect to any action taken or omitted to be taken by it in accordance with a written opinion of legal counsel addressed to the Assignee.
B. In connection with the foregoing, the Owner TrusteeAssignment Estate shall defend, Master Servicerindemnify and hold the Assignee and its past and present officers, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliatesmembers, officersmanagers, directors, employees, or agents counsel, agents, attorneys, parent, subsidiaries, affiliates, successors and assigns, including without limitation The Xxxxxxx Group, LLC (collectively, the “Assignment Estate Indemnified Persons”) harmless from and against any and all Indemnified Claims (defined below); provided, however, that the Assignment Estate shall be liable, directly or indirectly, for have no obligation hereunder to any damages or expenses arising out of Assignment Estate Indemnified Person with respect to any Indemnified Claims to the services performed under this Agreement other than damages that result extent resulting from their gross negligence, the willful misconduct, gross negligence or bad faith. violation of law of any Assignment Estate Indemnified Person.
C. The Custodian foregoing indemnification provisions shall survive any termination of this Assignment or the transactions contemplated hereby.
D. For purposes hereof, “Indemnified Claims” means any and its officersall claims, directorsdemands, employeesactions, causes of action, judgments, obligations, liabilities, losses, damages and agents will not consequential damages, penalties, fines, costs, fees, expenses and disbursements (including without limitation, fees and expenses of attorneys and other professional consultants and experts in connection with investigation or defense) of every kind, known or unknown, existing or hereafter arising, foreseeable or unforeseeable, which may be liable for any consequentialimposed upon, indirect, punitivethreatened or asserted against, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty incurred or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound paid by, any other document Assignment Estate Indemnified Person or agreement executed or delivered Assignee Indemnified Person, as applicable, at any time and from time to time, because of, resulting from, in connection with, or intended to control any part ofarising out of this Assignment, the transactions anticipated by contemplated hereby, including but not limited to economic loss, property damage, personal injury or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered death in connection with, or intended occurring on or in the vicinity of, any assets of the Assignment Estate through any cause whatsoever, any act performed or omitted to control any part ofbe performed under this Assignment, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referencedcontemplated hereby, or are incorporated any breach by referenceAssignor or Assignee, into this Agreement only as long as the Indenture Trustee has provided a copy applicable, of the document any representation, warranty, covenant, agreement or agreement to the Custodiancondition contained herein.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 6 contracts
Samples: General Assignment, General Assignment, General Assignment
Limitation of Liability. In addition to the limitations of liability contained in Sections 2 and 3 of this Agreement:
(a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Transfer Agent shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Fund or the Fund in connection with the matters to which this Agreement relates, indirectexcept for a loss resulting from Transfer Agent’s willful misfeasance, punitivebad faith or gross negligence in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement. Furthermore, Transfer Agent shall not be liable for: (1) any action taken or omitted to be taken in accordance with or in reliance upon Instructions, communications, data, documents or information (without investigation or verification) received by Transfer Agent from an officer or representative of the Fund or from any Authorized Person; or, (2) any action taken, or special damagesomission by, a Fund, the Fund, Investment Adviser, any Authorized Person or any past or current service provider (not including Transfer Agent).
(b) Except as provided in Section 2Notwithstanding anything herein to the contrary, the Custodian makes no warranty Transfer Agent will be excused from its obligation to perform any Service or representation and has no responsibility obligation required of it hereunder for the completenessduration that such performance is prevented by events beyond its reasonable control and shall not be liable for any default, validitydamage, sufficiencyloss of data or documents, valueerrors, genuineness, ownership, or transferability of the Mortgage Loans delay or any of the documents in the Mortgage Filesother loss whatsoever caused thereby. Transfer Agent will, however, take all reasonable steps to minimize service interruptions for any period that such interruption continues beyond its reasonable control.
(c) The Custodian need not expend In no event and under no circumstances shall the Indemnified Parties (as defined below) be liable to anyone, including, without limitation, the other party, under any theory of tort, contract, strict liability or risk its own funds other legal or otherwise incur financial liability in the performance equitable theory for lost profits, exemplary, punitive, special, indirect or consequential damages for any act or failure to act under any provision of any this Agreement regardless of its duties under this Agreement, or in the exercise of its rights, whether such damages were foreseeable and even if the Custodian believes that repayment advised of the funds or adequate indemnity against the risk or liability is not reasonably assured to itpossibility thereof.
(d) Without limiting Notwithstanding any other provision of this Agreement, Transfer Agent shall have no duty or obligation under this Agreement to inquire into, and shall not be liable for:
(i) the generality legality of the foregoingissue or sale of any Shares, the Custodian sufficiency of the amount to be received therefor, or the authority of the Fund, as the case may rely on and shall be, to request such sale or issuance;
(ii) the legality of a transfer, exchange, purchase or repurchase of any Shares, the propriety of the amount to be protected paid therefor, or the authority of the Fund, as the case may be, to request such transfer, exchange or repurchase;
(iii) the legality of the declaration of any dividend by the Fund, or the legality of the issue of any Shares in payment of any stock dividend;
(iv) the legality of any recapitalization or readjustment of Shares;
(v) Transfer Agent’s acting in good faith on any notice upon telephone or other communication electronic instructions relating to the purchase, transfer, exchange or repurchase of Shares received by it Transfer Agent in accordance with procedures established in writing by Transfer Agent and the Fund; or
(vi) the offer or sale of Shares in violation of any requirement under the securities laws or regulations of any jurisdiction that it reasonably believes to such Shares be genuine and duly authorized qualified for sale in such state or in violation of any stop order or determination or ruling by any state with respect to all matters pertaining to this Agreement and its duties under this Agreementthe offer or sale of such Shares in such state.
(e) The Custodian Transfer Agent may, in effecting transfers and repurchases of Shares, rely upon those provisions of the Uniform Act for the Simplification of Fiduciary Security Transfers (or such other statutes which protect it and the Fund in not requiring complete fiduciary documentation) and shall not be responsible for any act done or liable foromitted by it in good faith in reliance upon such laws. Notwithstanding the foregoing or any other provision contained in this Agreement to the contrary, Transfer Agent shall be fully protected by the Fund in not requiring any instruments, documents, assurances, endorsements or guarantees, including, without limitation, any Medallion signature guarantees, in connection with a repurchase, exchange or transfer of Shares whenever Transfer Agent reasonably believes that requiring the same would be inconsistent with the transfer, exchange and makes no representation or warranty with respect to, repurchase procedures described in the validity, adequacy, or perfection of any lien on or security interest in any Mortgage LoanProspectus.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice The obligations of the terms (including definitions not otherwise set forth in full in this Agreement) parties under Section 6 shall indefinitely survive the termination of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 6 contracts
Samples: Transfer Agency Agreement (Jackson Credit Opportunities Fund), Transfer Agency and Service Agreement (Eagle Point Institutional Income Fund), Transfer Agency Agreement (Thirdline Real Estate Income Fund)
Limitation of Liability. Assignor acknowledges that Assignee is acting solely as Assignee in connection with this Assignment and not in its personal capacity. As a result, Assignor expressly agrees that Assignee, its members, officers and agents shall not be subject to any personal liability whatsoever to any person in connection with the affairs of this Assignment, except for its own misconduct knowingly and intentionally committed in bad faith. No provision of this Agreement shall be construed to relieve the Assignee from liability for its own misconduct knowingly and intentionally committed in bad faith, except that:
(a) The Custodian undertakes Assignee shall not be required to perform only any duties or obligations except for the performance of such duties and obligations specified as are specifically set forth in this Agreement. The Issuer, the Owner Trustee, Master ServicerAssignment, and Indenture Trustee acknowledge that no implied covenants or obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of read into this Assignment against the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damagesAssignee.
(b) Except as provided in Section 2In the absence of bad faith on the part of the Assignee, the Custodian makes no warranty Assignee may conclusively rely, as to the truth, accuracy and completeness thereof, on the statements and certificates or representation opinions furnished to the Assignee by the Assignor and has no responsibility for conforming to the completeness, validity, sufficiency, value, genuineness, ownership, or transferability requirements of the Mortgage Loans or any of the documents in the Mortgage Filesthis Assignment.
(c) The Custodian need Assignee shall not expend or risk its own funds or otherwise incur financial liability be liable for any error of judgment made in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to itgood faith.
(d) Without limiting The Assignee shall not be liable with respect to any action taken or omitted to be taken by it in accordance with a written opinion of legal counsel addressed to the generality Assignee. In connection with the foregoing, the assignment estate shall defend, indemnify and hold the Assignee and its past and present officers, members, managers, directors, employees, counsel, agents, attorneys, parent, subsidiaries, affiliates, successors and assigns, including without limitation Sherwood Partners, Inc. (collectively, the "Indemnified Persons") harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, charges, expenses and disbursements (including reasonable attorneys' fees and costs) of any kind or nature whatsoever which may at any time be imposed on, incurred by, or asserted against any such Indemnified Person in any way relating to or arising out of this General Assignment, the Fee Letter, any other document contemplated by or referred to herein or therein, the transactions contemplated hereby or thereby, or any action taken or omitted by any Indemnified Person under or in connection with any of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized including, without limitation, with respect to all matters pertaining any investigation, litigation or proceeding related to this Agreement and its duties under this Agreement.
(e) The Custodian shall or arising out of any of the foregoing, whether or not be responsible or liable forany Indemnified Person is a party thereto, and makes no representation or warranty with respect toincluding, without limitation, any other Indemnified Claims (defined below), provided, that the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian assignment estate shall have no notice ofobligation hereunder to any Indemnified Person with respect to indemnified claims to the extent resulting from the willful misconduct or gross negligence of any Indemnified Person. The foregoing indemnification shall survive any termination of this General Assignment or the transactions contemplated hereby. For purposes hereof, "Indemnified Claims" means any and shall not all claims, demands, actions, causes of action, judgments, obligations, liabilities, losses, damages and consequential damages, penalties, fines, costs, fees, expenses and disbursements (including without limitation, fees and expenses of attorneys and other professional consultants and experts in connection with investigation or defense) of every kind, known or unknown, existing or hereafter arising, foreseeable or unforeseeable, which may be bound imposed upon, threatened or asserted against, or incurred or paid by, any other document or agreement executed or delivered Indemnified Person at any time and from time to time, because of, resulting from, in connection with, or intended to control arising out of any part oftransaction, act, omission, event or circumstance in any way connected with this General Assignment, the transactions anticipated Fee Letter, any other document contemplated by or referred to in this Agreement unless the Custodian is a signatory party to that document herein or agreement. Notwithstanding the foregoing sentencetherein, the Custodian shall be deemed to have notice transactions contemplated hereby or thereby, or any action taken or omitted by any Indemnified Person under or in connection with any of the terms (foregoing, including definitions but not otherwise set forth in full in this Agreement) of other documents and agreements executed limited to economic loss, property damage, personal injury or delivered death in connection with, or intended to control any part occurring on or in the vicinity of, any assets of the transactions anticipated assignment estate through any cause whatsoever, any act performed or omitted to be performed under this General Assignment, any other document contemplated by or referred to in this Agreementherein, to the extent the terms are referencedtransactions contemplated hereby, or are incorporated any action taken or omitted by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document any Indemnified Person under or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits any of the indemnificationforegoing, waiverany breach by Assignor of any representation, warranty, covenant, agreement or condition contained herein or in any other agreement between Assignor and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those dutiesAssignee.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 6 contracts
Samples: General Assignment (Aravive, Inc.), General Assignment, General Assignment
Limitation of Liability. (a) The Custodian undertakes Notwithstanding anything contained herein to perform only the contrary, this Agreement has been executed and delivered by Deutsche Bank Trust Company Delaware, not in its individual capacity but solely as Owner Trustee, and in no event shall it have any liability for the representations, warranties, covenants, agreements or other obligations specified of the Issuer hereunder or under the Notes or any of the other Transaction Documents or in any of the certificates, notices or agreements delivered pursuant thereto, as to all of which recourse shall be had solely to the assets of the Issuer. Under no circumstances shall the Owner Trustee be personally liable for the payment of any indebtedness or expense of the Issuer or be liable for the breach or failure of any obligations, representation, warranty or covenant made or undertaken by the Issuer under the Transaction Documents. For the purposes of this Agreement. The Issuer, in the performance of its duties or obligations hereunder, the Owner Trustee, Master ServicerTrustee shall be subject to, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither entitled to the Custodian nor any benefits of, the terms and provisions of its affiliatesArticles VI, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out VII and VIII of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damagesTrust Agreement.
(b) Except Notwithstanding anything contained herein to the contrary, this Agreement has been executed and delivered by Xxxxx Fargo Bank, National Association, not in its individual capacity but solely as provided Indenture Trustee, and in Section 2, the Custodian makes no warranty or representation and has no responsibility event shall it have any liability for the completenessrepresentations, validitywarranties, sufficiencycovenants, value, genuineness, ownership, agreements or transferability other obligations of the Mortgage Loans Issuer under the Notes or any of the documents other Transaction Documents or in any of the Mortgage Files.
(c) The Custodian need not expend certificates, notices or risk agreements delivered pursuant thereto, as to all of which recourse shall be had solely to the assets of the Issuer; provided that the Indenture Trustee shall be responsible for its own funds actions as Indenture Trustee hereunder and under the Indenture. Under no circumstances shall the Indenture Trustee be personally liable for the payment of any indebtedness or otherwise incur financial liability expense of the Issuer or be liable for the breach or failure of any obligations, representation, warranty or covenant made or undertaken by the Issuer under the Transaction Documents. For the purposes of this Agreement, in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoingobligations hereunder, the Custodian may rely on and Indenture Trustee shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable forsubject to, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement entitled to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part benefits of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice terms and provisions of Article VI of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the CustodianIndenture.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 6 contracts
Samples: Sale and Servicing Agreement (Santander Drive Auto Receivables Trust 2011-2), Sale and Servicing Agreement (Santander Drive Auto Receivables Trust 2011-2), Sale and Servicing Agreement (Santander Drive Auto Receivables Trust 2010-2)
Limitation of Liability. (a) The Custodian undertakes to perform only Neither the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employeesofficers or employees shall be liable for any action taken or omitted to be taken by it or them hereunder, or agents in connection herewith, except that the Indenture Trustee shall be liableliable for its negligence, directly bad faith or indirectlywillful misconduct; nor shall the Indenture Trustee be responsible for the validity, effectiveness, value, sufficiency or enforceability against the Issuer of this Agreement or any of the Trust Estate (or any part thereof). Notwithstanding any term or provision of this Agreement, the Indenture Trustee shall incur no liability to the Issuer for any damages action taken or expenses arising out omitted by the Indenture Trustee in connection with the Trust Estate, except for the negligence, bad faith or willful misconduct on the part of the services performed under this Agreement other than damages that result from their gross Indenture Trustee, and, further, shall incur no liability to the Issuer except for negligence, bad faith or willful misconduct, or bad faithmisconduct in carrying out its duties to the Issuer. The Custodian Indenture Trustee shall be protected and its officersshall incur no liability to any such party in relying upon the accuracy, directors, employeesacting in reliance upon the contents, and agents will assuming the genuineness of any notice, demand, certificate, signature, instrument or other document reasonably believed by the Indenture Trustee to be genuine and to have been duly executed by the appropriate signatory, and (absent actual knowledge of a Responsible Officer of the Indenture Trustee to the contrary) the Indenture Trustee shall not be required to make any independent investigation with respect thereto. The Indenture Trustee shall at all times be free independently to establish to its reasonable satisfaction, but shall have no duty to independently verify, the existence or nonexistence of facts that are a condition to the exercise or enforcement of any right or remedy hereunder or under any of the other Transaction Documents. The Indenture Trustee may consult with independent counsel, and shall not be liable for any consequential, indirect, punitive, action taken or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured omitted to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting taken by it hereunder in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized in accordance with respect to all matters pertaining to this Agreement and its duties under this Agreementthe written advice of such counsel.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 6 contracts
Samples: Sale and Servicing Agreement (Drive Auto Receivables LLC), Sale and Servicing Agreement (Santander Drive Auto Receivables Trust 2007-2), Sale and Servicing Agreement (Santander Drive Auto Receivables LLC)
Limitation of Liability. (a) The Custodian undertakes to perform only GEIM will exercise its best judgment in rendering the obligations specified services described in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge except that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents GEIM will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Agreement relates, indirectother than a loss resulting from willful misfeasance, punitivebad faith or gross negligence on the part of GEIM in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement. Any person, even though also an officer, director, employee or agent of GEIM, who may be or become an officer, Trustee, employee or agent of the Trust, will be deemed, when rendering services to the Trust or acting on any business of the Trust, to be rendering services to, or special damagesacting solely for, the Trust and not as an officer, director, employee or agent, or one under the control or direction of, GEIM even though paid by GEIM.
(b) Except The Trust and GEIM agree that the obligations of the Trust under this Agreement will not be binding upon any of the Trustees, shareholders, nominees, officers, employees or agents, whether past, present or future, of the Trust, individually, but are binding only upon the assets and property of the Fund, as provided in Section 2, the Custodian makes no warranty or representation Declaration of Trust. The execution and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision delivery of this Agreement to have been authorized by the contrary notwithstanding, Trustees of the Custodian shall have no notice ofTrust, and shall not be bound bysigned by an authorized officer of the Trust, any other document or agreement executed or delivered in connection withacting as such, or intended to control any part of, and neither the transactions anticipated authorization by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding Trustees nor the foregoing sentence, execution and delivery by the Custodian shall officer will be deemed to have notice been made by any of them individually or to impose any liability on any of them personally, but will bind only the trust property of the terms (including definitions not otherwise set forth Trust as provided in full in this Agreement) the Declaration of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy Trust. No series of the document or agreement to Trust, including the CustodianFund, will be liable for any claims against any other series.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 6 contracts
Samples: Investment Advisory and Administration Agreement (Ge Funds), Investment Advisory and Administration Agreement (Ge Funds), Investment Advisory and Administration Agreement (Ge Funds)
Limitation of Liability. In addition to the limitations of liability contained in Sections 2 and 3 of this Agreement:
(a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Transfer Agent shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Agreement relates, indirectexcept for a loss resulting from Transfer Agent’s willful misfeasance, punitivebad faith or negligence in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement. Furthermore, Transfer Agent shall not be liable for: (1) any action taken or omitted to be taken in accordance with or in reliance upon Instructions, communications, data, documents or information (without investigation or verification) received by Transfer Agent from an officer or representative of the General Partner or from any Authorized Person; or, (2) any action taken, or special damagesomission by, the Fund, the General Partner, any Authorized Person or any past or current service provider (not including Transfer Agent).
(b) Except as provided Notwithstanding anything herein to the contrary, in Section 2the event either party is unable to perform its obligations required of it hereunder because such performance is prevented by force majeure, the Custodian makes no warranty “acts of God” or representation and has no responsibility other similar events beyond its reasonable control, such party shall not be liable for the completenessany default, validitydamage, sufficiencyloss of data or documents, valueerrors, genuineness, ownership, or transferability of the Mortgage Loans delay or any other loss whatsoever caused thereby, provided that the foregoing does not apply to hardware or software failures unless such failures are caused by force majeure, “acts of the documents in the Mortgage FilesGod” or other similar events beyond its reasonable control. Transfer Agent will, however, take all reasonable steps to minimize service interruptions for any period that such interruption continues beyond its reasonable control.
(c) The Custodian need not expend In no event and under no circumstances shall the Indemnified Parties (as defined below) be liable to anyone, including, without limitation, the other party, under any theory of tort, contract, strict liability or risk its own funds other legal or otherwise incur financial liability in the performance equitable theory for lost profits, exemplary, punitive, special, indirect or consequential damages for any act or failure to act under any provision of any this Agreement regardless of its duties under this Agreement, or in the exercise of its rights, whether such damages were foreseeable and even if the Custodian believes that repayment advised of the funds or adequate indemnity against the risk or liability is not reasonably assured to itpossibility thereof.
(d) Without limiting Notwithstanding any other provision of this Agreement, Transfer Agent shall have no duty or obligation under this Agreement to inquire into, and shall not be liable for:
(i) the generality legality of the foregoingissue or sale of any Units, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes sufficiency of the amount to be genuine and duly authorized received therefor, or the authority of the Fund, as the case may be, to request such sale or issuance;
(ii) the legality of a subscription or redemption of any Units, the propriety of the amount to be paid therefor, or the authority of the Fund, as the case may be, to request such subscription or tender; or
(iii) the offer or sale of Units in violation of any requirement under the securities laws or regulations of any jurisdiction that such Units be qualified for sale in such state or in violation of any stop order or determination or ruling by any state with respect to all matters pertaining to this Agreement and its duties under this Agreementthe offer or sale of such Units in such state.
(e) The Custodian Transfer Agent may, in effecting purchases and redemptions of Units, rely upon those provisions of the Uniform Act for the Simplification of Fiduciary Security Transfers (or such other statutes which protect it and the Fund in not requiring complete fiduciary documentation) and shall not be responsible for any act done or liable foromitted by it in good faith in reliance upon such laws. Notwithstanding the foregoing or any other provision contained in this Agreement to the contrary, and makes no representation Transfer Agent shall be fully protected by the Fund in not requiring any instruments, documents, assurances, endorsements or warranty guarantees, including, without limitation, any Medallion signature guarantees, in connection with respect to, a purchase or redemption of Units whenever Transfer Agent reasonably believes that requiring the validity, adequacy, or perfection same would be inconsistent with the terms of any lien on or security interest in any Mortgage Loanthe Fund’s Offering Documents.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice The obligations of the terms (including definitions not otherwise set forth in full in this Agreement) parties under Section 6 shall indefinitely survive the termination of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 5 contracts
Samples: Transfer Agency Agreement, Transfer Agency Agreement (Tactical Diversified Futures Fund L.P.), Transfer Agency Agreement (Managed Futures Premier Graham L.P.)
Limitation of Liability. A. The Sub-Adviser (aincluding its directors, officers and employees) The Custodian undertakes will not be liable for (i) any error of judgment or mistake of law or for any loss suffered by the Adviser, any Fund or the Trust in connection with the matters to perform only which this Agreement relates, except to the extent that such a loss results from willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or from reckless disregard by it of its obligations specified and duties under this Agreement or (ii) any untrue statement of a material fact (or an omission of such statement) contained in this Agreementthe Prospectus, SAI, Registration Statement, proxy materials, reports, advertisements, sales literature or other materials unless such statement was made in reliance on information furnished to the Adviser or the Trust by the Sub-Adviser or any director, officer, agent or employee of the Sub-Adviser for use therein. The IssuerAny person, even though also an officer, director, employee, or agent of the Owner Sub-Adviser, who may be or become an officer, Trustee, Master Serviceremployee or agent of the Trust shall be deemed, when rendering services to any Fund or the Trust or acting with respect to any business of such Fund or the Trust, to be rendering such service to or acting solely for any Fund or the Trust and Indenture Trustee acknowledge not as an officer, director, employee, or agent or one under the control or direction of Sub-Adviser even though paid by it.
B. The Adviser (including its directors, officers and employees) will not be liable for (i) any error of judgment or mistake of law or for any loss suffered by the Sub-Adviser in connection with the matters to which this Agreement relates, except to the extent that no implied such a loss results from willful misfeasance, bad faith or gross negligence on its part in the performance of its duties or from reckless disregard by it of its obligations exist and duties under this AgreementAgreement or (ii) any untrue statement of a material fact (or an omission of such statement) contained in the Prospectus, SAI, Registration Statement, proxy materials, reports, advertisements, sales literature or other materials unless such statement was made in reliance on information furnished to the Sub-Adviser or the Trust by the Adviser or any director, officer, agent or employee of the Adviser for use therein. Any person, even though also an officer, director, employee, or agent of the Adviser, who may be or become an officer, Trustee, employee or agent of the Trust shall be deemed, when rendering services to any Fund or the Trust or acting with respect to any business of such Fund or the Trust, to be rendering such service to or acting solely for any Fund or the Trust and not as an officer, director, employee, or agent or one under the control or direction of Adviser even though paid by it.
C. Neither the Custodian nor party shall be responsible or liable for any failure or delay in performance of its affiliates, officers, directors, employees, obligations under this Agreement arising out of or agents shall be liablecaused, directly or indirectly, for any damages by circumstances beyond its reasonable control including, without limitation, acts of civil or expenses arising out military authority, national emergencies, labor difficulties, fire, mechanical breakdowns, flood or catastrophe, acts of God, insurrection, war, riots or failure of the services performed under this Agreement other than damages that result from their gross negligencemails, willful misconducttransportation, communication or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damagespower supply.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining D. Neither party to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstandingother party for any special, the Custodian shall have no notice of, and shall not be bound by, any other document consequential or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If indirect damages under any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 5 contracts
Samples: Sub Advisory Agreement (TrimTabs ETF Trust), Sub Advisory Agreement (TrimTabs ETF Trust), Sub Advisory Agreement (TrimTabs ETF Trust)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Investment Adviser shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialloss suffered by the Trust in connection with the matters to which this Agreement relates, indirectexcept a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services or a loss resulting from willful misfeasance, punitive, bad faith or special damages.
(b) Except as provided in Section 2, gross negligence on the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability part of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability Investment Adviser in the performance of any its duties or from reckless disregard by it of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on obligations and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through (“disabling conduct”). The Fund will indemnify the Investment Adviser against and hold it harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) resulting from any claim, demand, action or suit not resulting from disabling conduct by the Investment Adviser. Indemnification shall be made only following: (i) a final decision on the merits by a court or other body before whom the proceeding was brought that the Investment Adviser was not liable by reason of its agentsdisabling conduct or (ii) in the absence of such a decision, attorneys-in-facta reasonable determination, or affiliates. Any agent, attorney-in-fact, or affiliate based upon a review of the Custodian facts, that the Investment Adviser was not liable by reason of disabling conduct by (and any affiliate's a) the vote of a majority of a quorum of directors of the Trust who are neither “interested persons” of the Trust nor parties to the proceeding (“disinterested non-party directors, officers, agents, and employees”) that performs duties or (b) an independent legal counsel in connection with this Agreement a written opinion. The Investment Adviser shall be entitled to advances from the same benefits Fund for payment of the indemnification, waiver, and other protective provisions reasonable expenses incurred by the Investment Adviser in connection with the matter as to which it is seeking indemnification in the Custodian manner and to the fullest extent permissible under the Delaware Statutory Trust Act. The Investment Adviser shall provide to the Fund a written affirmation of its good faith belief that the standard of conduct necessary for indemnification by the Fund has been met and a written undertaking to repay any such advance if it should ultimately be determined that the standard of conduct has not been met. In addition, at least one of the following additional conditions shall be met: (a) the Investment Adviser shall provide a security in form and amount acceptable to the Fund for its undertaking; (b) the Fund is insured against losses arising by reason of the advance; or (c) a majority of a quorum of disinterested non-party directors, or independent legal counsel, in a written opinion, shall have determined, based upon a review of facts readily available to the Fund at the time the advance is proposed to be made, that there is reason to believe that the Investment Adviser will ultimately be found to be entitled to indemnification. Any amounts payable by the Fund under this Agreement, but Section shall be satisfied only against the Custodian shall remain responsible for assets of the performance Fund and not against the assets of those duties.
(j) any other investment portfolio of the Trust. The Custodian limitations on liability and indemnification provisions of this Section shall not be responsible applicable to any losses, claims, damages, liabilities or expenses arising from the Investment Adviser’s rights to the Fund’s name. The Investment Adviser shall indemnify and hold harmless the Trust and the Fund for delays any claims arising from the use of the terms “Private Capital Management” or failures “PCM” in performance resulting from acts beyond its control. Acts beyond its control include acts the name of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disastersFund.
Appears in 5 contracts
Samples: Investment Advisory Agreement (FundVantage Trust), Interim Investment Advisory Agreement (FundVantage Trust), Investment Advisory Agreement (FundVantage Trust)
Limitation of Liability. (a) The Custodian undertakes City desires to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, enter into this Agreement only as long as if in so doing the Indenture Trustee has provided City can place a copy limit on the City’s liability for any cause of action arising out of this Agreement, so that its liability never exceeds the agreed sum of Nine Thousand Dollars and 00/100 cents ($9,000.00). Subrecipient expresses its willingness to enter into this Agreement with Subrecipient recovery from the City for any action or claim arising from this Agreement to be limited to Nine Thousand Dollars and 00/100 cents ($9,000.00). Accordingly, and notwithstanding any other term or condition of this Agreement, the Subrecipient hereby agrees that the City shall not be liable to the Subrecipient for damages in an amount in excess of Nine Thousand Dollars and 00/100 cents ($9,000.00) for any action or claim of the document Subrecipient or agreement any third party arising out of this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the Custodian.
(g) The Custodian shall have only limitation placed upon the obligations expressly City’s liability as set forth in Chapter 768, Florida Statutes. Additionally, the City does not waive sovereign immunity, and no claim or award against the City shall include attorney’s fees, investigative costs or pre-judgment interest. The Subrecipient shall indemnify and save the City harmless from any and all claims, liability, losses and causes of actions arising out of any act, error or omission of the Subrecipient’s professional services under this Agreement; and to the extent of any such claim, liability, loss or cause of action, the Subrecipient shall pay all such claims and losses and costs and judgments which may issue thereon, as well as any attorney’s fee incurred. Changes in the Basic Services and entitlement to additional compensation or a change in duration of this Agreement or in shall be made by a written amendment Amendment to this Agreement executed by the parties City and the Subrecipient. The Subrecipient shall proceed to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has perform the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party Services required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian Amendment only after receiving a fully executed Amendment from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this AgreementCity.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 5 contracts
Samples: Community Development Block Grant Agreement, Community Development Block Grant Agreement, Community Development Block Grant Program Agreement
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner No Trustee, Master Servicerofficer, or employee of the Trust shall owe any duty, or have any related liability, to any Person whatsoever (including without limitation any Shareholder) other than to the Trust or any Series, and Indenture Trustee acknowledge this Declaration of Trust eliminates any such duty arising at law (common or statutory) or in equity and any related liability, to the extent that no implied obligations exist such duty or liability may be so eliminated. All persons contracting with or having any claim against the Trust or a particular Series shall look only to the assets of all Series or such particular Series for payment under this Agreement. Neither such contract or claim; and neither the Custodian nor any of its affiliatesTrustees nor, officerswhen acting in such capacity, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents Trust’s officers, employees or agents, whether past, present or future, shall be personally liable therefore. Every written instrument or obligation on behalf of the Trust or any Series shall contain a statement to the foregoing effect, but the absence of such statement shall not operate to make any Trustee or officer of the Trust liable thereunder. Provided they have exercised reasonable care and have acted under the reasonable belief that their actions are in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment best interest of the funds or adequate indemnity against Trust, the risk or liability is not reasonably assured to it.
(d) Without limiting the generality Trustees and officers of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian Trust shall not be responsible or liable forfor any act or omission or for neglect or wrongdoing of them or any officer, agent, employee, investment adviser or independent contractor of the Trust, but nothing contained in this Declaration or in the Delaware Act shall protect any Trustee or officer of the Trust against liability to the Trust or to Shareholders to which he or she would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of his or her office. The appointment, designation or identification (including in any proxy or registration statement or other document) of a Trustee as chair of the Trustees, a member or chair of a committee of the Trustees, an expert on any topic or in any area (including an audit committee financial expert), or the lead independent Trustee, or as having experience, attributes or skills in any area, or any other appointment, designation or identification of a Trustee, shall not impose on that person any standard of care or liability that is greater than that imposed on that person as a Trustee in the absence of the appointment, designation or identification, and makes no representation Trustee who has special attributes, skills, experience or warranty with respect to, the validity, adequacyexpertise, or perfection is appointed, designated or identified as aforesaid, shall be held to a higher standard of any lien on care by virtue thereof. In addition, no appointment, designation or security interest identification of a Trustee as aforesaid shall affect in any Mortgage Loanway that Trustee’s rights or entitlement to indemnification or advancement of expenses.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 5 contracts
Samples: Agreement and Declaration of Trust (Pioneer Floating Rate Trust), Agreement and Declaration of Trust (Pioneer Municipal High Income Trust), Agreement and Declaration of Trust (Pioneer Municipal High Income Advantage Trust)
Limitation of Liability. 9.1 In no event shall FinDock, its Affiliates, employees, agents and subcontractors be liable to Customer pursuant to clause 8.1 to the extent that the alleged infringement is based on:
a. Modification of the Service or Content by anyone other than FinDock (a) The Custodian undertakes save where such modification was consented to perform only by FinDock in writing), or
b. Customer’s use of the obligations specified Service or Content in this Agreement. The Issuera manner contrary to the written instructions given to Customer by FinDock, or
c. Customer’s use of the Owner TrusteeService or Content after written notice of the alleged or actual infringement from FinDock or any appropriate authority was provided to Customer.
9.2 FinDock is not responsible for any delays, Master Servicerdelivery failures, or any other loss or damage resulting from the transfer of data over communications networks and Indenture Trustee acknowledge facilities, including the internet, that no implied obligations exist under this Agreement. Neither the Custodian nor are not provided by FinDock or any of its affiliatessubcontractors. Customer acknowledges that the Service and Content may be subject to limitations, officersdelays and other problems inherent in the use of such communications facilities.
9.3 FinDock will not be responsible for, directorsand shall have no liability for, employeesany loss or damage caused by third party services used by Customer, such as financial services providers and payment services providers.
9.4 FinDock will not be responsible for, and shall have no liability for, any loss or damage caused by the loss of access to, the diminished use of or any other issues related to the use of the Salesforce platform.
9.5 Any liability of FinDock arising out of or related to the Agreement is limited to the amount paid out for the relevant claim under FinDock’s insurance. If, for whatever reason, a claim is not covered by FinDock’s insurance, the aggregate liability of FinDock with all of its Affiliates shall not exceed the total amount paid by Customer and its Affiliates hereunder for the Service giving rise to the liability in the twelve months preceding the first incident out of which the liability arose with a maximum of EUR 100.000,-.The foregoing limitation will apply whether an action is in contract or tort, but will not limit Customer's and its Affiliates’ payment obligations under the “Fees and Payment” section above.
9.6 In no event will either party or its Affiliates have any liability arising out of or related to the Agreement for any lost profits, revenues, goodwill, or agents indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is in contract or tort. The foregoing disclaimer will not apply to the extent prohibited by law.
9.7 Upon termination of the Agreement for whatever reason, FinDock shall not be liable to Customer for any compensation, damages, reimbursements, loss of prospective or anticipated profits of Customer.
9.8 Any claim for compensation will expire one year after the date on which Customer became aware of the damage and the possibility of FinDock’s liability for the damage.
9.9 For the avoidance of doubt, these limitations apply to all claims for compensation, whatever their legal basis and therefore including claims based on or in connection with an indemnity, warranty or representation by FinDock.
10.1 Each Party shall be liableexcused from performance in terms of the Agreement for any period and to the extent that it is prevented from performing any obligations pursuant to the Agreement, in whole or in part, as a result of a force majeure event (as described in clause 10.2 below).
10.2 Neither Party shall be liable for any default or delay in the performance of its obligations in terms of the Agreement if and to the extent that:
a. such default or delay is caused, directly or indirectly, for any damages by fire, flood, earthquake, elements of nature or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts pandemic, epidemic, civil disorders, rebellions or revolutions in any country, strike or other labor problem (other than one involving FinDock employees), Internet service provider failure or delay or denial of war service attack, changes in relevant local legislation in any country or terrorismany other cause beyond the reasonable control of such Party;
b. the non-performing Party is without fault in causing such default or delay;
c. such default or delay could not have been prevented by reasonable precautions; and
d. such default or delay cannot reasonably be circumvented by the non-performing Party through the use of alternate sources, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after workaround plans or other means.
10.3 In the fact, fire, communication line failures, computer viruses, power failures, earthquakesevent that a force majeure as stipulated in this Clause 10 is responsible for a Party’s failure to perform (part of) its obligations under the Agreement, or for a delay in performing those obligations, such Party shall give notice to the other disasters.Party upon it being foreseen by, or becoming known to, that Party. The performance of the Agreement will be suspended. Parties can optionally decide, with mutual consent, to an adjustment of the scope of the Agreement for a specific period of time. If the force majeure has lasted longer than thirty
Appears in 5 contracts
Samples: General Terms and Conditions, General Terms and Conditions, General Terms and Conditions
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 24.7(f) hereof, and as otherwise provided under Delaware law, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement Limited Owners shall be entitled to the same benefits limitation of personal liability extended to stockholders of private corporations for profit organized under the general corporation law of Delaware and no Limited Owner shall be liable for claims against, or debts of the indemnificationTrust in excess of its Capital Contribution and its share of the Trust Estate and undistributed profits, waiverexcept in the event that the liability is founded upon misstatements or omissions contained in such Limited Owner’s Participant Agreement delivered in connection with his purchase of Units. In addition, and subject to the exceptions set forth in the immediately preceding sentence, the Trust shall not make a claim against a Limited Owner with respect to amounts distributed to such Limited Owner or amounts received by such Limited Owner upon redemption unless, under Delaware law, such Limited Owner is liable to repay such amount.
(b) The Trust shall indemnify to the full extent permitted by law and the other protective provisions of this Trust Agreement, and to the extent of the Trust Estate, each Limited Owner against any claims of liability asserted against such Limited Owner solely because he is a beneficial owner of one or more Units as a Limited Owner (other than for taxes for which such Limited Owner is liable under Section 6.5 hereof).
(c) Every written note, bond, contract, instrument, certificate or undertaking made or issued by the Managing Owner shall give notice to the effect that the same was executed or made by or on behalf of the Trust and that the obligations of such instrument are not binding upon the Limited Owners individually but are binding only upon the assets and property of the Trust, and no resort shall be had to the Limited Owners’ personal property for satisfaction of any obligation or claim thereunder, and appropriate references may be made to this Trust Agreement and may contain any further recital which the Custodian is entitled under this AgreementManaging Owner deems appropriate, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian omission thereof shall not be responsible for delays operate to bind the Limited Owners individually or failures otherwise invalidate any such note, bond, contract, instrument, certificate or undertaking. Nothing contained in performance resulting from acts beyond its control. Acts beyond its control include acts this Section 8.3 shall diminish the limitation on the liability of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disastersTrust to the extent set forth in Sections 3.7 and 3.8 hereof.
Appears in 5 contracts
Samples: Declaration of Trust and Trust Agreement (FactorShares 2X: S&P500 Bull/Usd Bear), Declaration of Trust and Trust Agreement (FactorShares 2X: S&P500 Bull/TBond Bear), Declaration of Trust and Trust Agreement (FactorShares 2X: TBond Bull/S&p500 Bear)
Limitation of Liability. (a) 3.1 The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Distributor shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable to the Company for any consequential, indirect, punitive, error of judgment or special damages.
(b) Except as provided mistake of law or for any loss suffered by the Company in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in connection with the performance of any of its obligations and duties under this Agreement, except a loss resulting from the Distributor's willful misfeasance, bad faith or negligence in the exercise performance of such obligations and duties, or by reason of its rightsreckless disregard thereof. The Company will indemnify the Distributor against and hold it harmless from any and all claims, if the Custodian believes that repayment costs, expenses (including reasonable attorneys' fees), losses, damages, charges, payments and liabilities of the funds any sort or adequate indemnity kind which may be asserted against the risk or liability is not reasonably assured to it.
(d) Without limiting Distributor for which the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or Distributor may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties be liable in connection with this Agreement shall be entitled or the Distributor's performance hereunder (a "Section 3.1 Claim"), unless such Section 3.1 Claim resulted from a negligent act or omission to act, bad faith, willful misfeasance or reckless disregard by the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for Distributor in the performance of those dutiesits duties hereunder. The Distributor will indemnify the Company against and hold it harmless from any and all claims, costs, expenses (including reasonable attorneys' fees), losses, damages, charges, payments and liabilities of any sort or kind which may be asserted against the Company for which the Company may be held to be liable in connection with this Agreement or the Distributor's performance hereunder (a "Section 3.1 Claim"), provided that such Section 3.1 Claim resulted from a negligent act or omission to act, bad faith, willful misfeasance or reckless disregard by the Distributor in the performance of its duties hereunder. The obligations of the parties hereto under this Section 3.1 shall survive termination of this Agreement.
3.2 Neither party may assert any cause of action against the other party under this Agreement that occurred more than two (j2) The Custodian years prior to the filing of the suit (or commencement of arbitration proceedings) alleging such cause of action.
3.3 Each party shall not be responsible have the duty to mitigate damages for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of Godwhich the other party may become responsible.
3.4 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, strikesIN NO EVENT SHALL EITHER PARTY, lockoutsTHEIR AFFILIATES OR ANY OF THEIR DIRECTORS, riotsOFFICERS, acts of war or terrorismEMPLOYEES, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disastersAGENTS OR SUBCONTRACTORS BE LIABLE FOR CONSEQUENTIAL DAMAGES.
Appears in 5 contracts
Samples: Distribution Agreement (Alleghany Funds), Distribution Agreement (Alleghany Funds), Distribution Agreement (Alleghany Funds)
Limitation of Liability. (a) The Custodian undertakes Administrator shall exercise due care and reasonable care in good faith and in accordance with reasonable commercial standards in discharging its duties hereunder. Notwithstanding anything to perform only the obligations specified contrary in this Agreement. The Issuer, the Owner TrusteeAdministrator shall be liable to a Fund for all losses, Master Servicerdamages and reasonable costs and expenses suffered or incurred by such Fund resulting from the bad faith, gross negligence, fraud, reckless disregard in the performance of its duties and Indenture Trustee acknowledge that no implied obligations exist under this Agreement, uncured material breach of this Agreement or willful misconduct of the Administrator (the “Standard of Care”). Neither Subject to the Custodian nor foregoing, Administrator shall not be liable for: (i) any action reasonably taken or omitted to be taken in accordance with or in reasonable reliance upon Instructions, communications, data, documents or information (without investigation or verification) received by the Administrator from an officer or representative of its affiliates, officers, directors, employeesthe Fund, or agents shall be liablefrom any Authorized Person; (ii) any action taken or omission by a Fund, directly the Fund, Investment Adviser, any Authorized Person or indirectlyany past or current service provider; or, for any damages (iii) its reliance on the security valuations without investigation or expenses arising out verification provided by pricing service(s), the Investment Adviser or representatives of the services performed under this Agreement other than damages Fund.
(b) Notwithstanding anything herein to the contrary, each party hereto will be excused from its obligation to perform any Service or obligation required of it hereunder for the duration that result from their gross negligence, willful misconduct, or bad faith. The Custodian such performance is prevented by events beyond its reasonable control and its officers, directors, employees, and agents will shall not be liable for any consequentialdefault, indirectdamage, punitiveloss of data or documents, or special damages.
(b) Except as provided in Section 2errors, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans delay or any of the documents in the Mortgage Filesother loss whatsoever caused thereby. Administrator will, however, take all reasonable steps to minimize service interruptions for any period that such interruption continues beyond its reasonable control.
(c) The Custodian need not expend In no event and under no circumstances shall the Indemnified Parties (as defined below) be liable to anyone, including, without limitation, the other party, under any theory of tort, contract, strict liability or risk its own funds other legal or otherwise incur financial liability in the performance equitable theory for lost profits, exemplary, punitive, special, indirect or consequential damages for any act or failure to act under any provision of any this Agreement regardless of its duties under this Agreement, or in the exercise of its rights, whether such damages were foreseeable and even if the Custodian believes that repayment advised of the funds or adequate indemnity against the risk or liability is not reasonably assured to itpossibility thereof.
(d) Without limiting the generality The obligations of the foregoing, parties under Section 6 shall indefinitely survive the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under termination of this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 5 contracts
Samples: Administration and Fund Accounting Agreement (Thirdline Real Estate Income Fund), Administration and Fund Accounting Agreement (Bow River Capital Evergreen Fund), Administration and Fund Accounting Agreement (Destra Multi-Alternative Fund)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian Trustees shall not be responsible or liable for, and makes no representation in any event for any neglect or warranty with respect to, the validity, adequacy, or perfection wrongdoing of any lien on officer, agent, employee, investment advisor or security interest in manager, principal underwriter or custodian, nor shall any Mortgage Loan.
(f) Any other provision Trustee be responsible for the act or omission of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document Trustee. Nothing in this Declaration of Trust shall protect any Trustee against any liability to which such Trustee would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or agreement reckless disregard of the duties involved in the conduct of the office of Trustee. Every note, bond, contract, instrument, certificate, Share or undertaking and every other act or thing whatsoever executed or delivered done by or on behalf of the Trust or the Trustee or any of them in connection with, or intended to control any part of, with the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian Trust shall be conclusively deemed to have been executed or done only in or with respect to their or his capacity as Trustees or Trustee and neither such Trustees or Trustee nor the Shareholders shall be personally liable thereon. Every note, bond, contract, instrument, certificate or undertaking made or issued by the Trustees or by any officers or officer shall give notice that this Declaration of Trust is on file with the Secretary of State of The Commonwealth of Massachusetts and shall recite that the same was executed or made by or on behalf of the terms (including definitions Trust by them as Trustees or Trustee or as officers or officer and not otherwise set forth in full in this Agreement) individually and that the obligations of other documents such instrument are not binding upon any of them or the Shareholders individually but are binding only upon the assets and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy property of the document Trust or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision particular series of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this AgreementShares, and (ii) any jurisdiction where its ownership of property may contain such further recital as he or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian they may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreementdeem appropriate, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian omission thereof shall not operate to bind any Trustees or Trustee or officers or officer or Shareholders or Shareholder individually. All persons extending credit to, contracting with or having any claim against the Trust or a particular series of Shares shall look only to the assets of the Trust or the assets of that particular series of Shares, as the case may be, for payment under such credit, contract or claim; and neither the Shareholders nor the Trustees, nor any of the Trust's officers, employees or agents, whether past, present or future, shall be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasterspersonally liable therefor.
Appears in 5 contracts
Samples: Agreement and Declaration of Trust (Kemper Adjustable Rate U S Government Fund), Agreement and Declaration of Trust (Kemper U S Government Securities Fund), Agreement and Declaration of Trust (Kemper High Yield Fund)
Limitation of Liability. (a) The Custodian undertakes to perform only In the obligations specified in this Agreement. The Issuerabsence of gross negligence or intentional misconduct on its part, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Mellon shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialaction taken, indirect, punitivesuffered, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty omitted by it or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability any error of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability judgment made by it in the performance of any of its duties under this Agreement, or . Anything in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement agreement to the contrary notwithstanding, in no event shall Mellon be liable for special, indirect, incidental or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if Mellon has been advised of the Custodian likelihood of such damages and regardless of the form of action. Any liability of Mellon will be limited to the amount of fees paid by the Company hereunder.
(b) In the event any question or dispute arises with respect to the proper interpretation of this Agreement or Mellon's duties hereunder or the rights of the Company or of any holders surrendering certificates for Shares pursuant to the Subscription Offer, Mellon shall have no notice of, not be required to act and shall not be bound byheld liable or responsible for refusing to act until the question or dispute has been judicially settled (and Mellon may, any other document if it deems it advisable, but shall not be obligated to, file a suit in interpleader or agreement executed for a declaratory judgment for such purpose) by final judgment rendered by a court of competent jurisdiction, binding on all stockholders and parties interested in the matter which is no longer subject to review or delivered in connection withappeal, or intended to control any part of, the transactions anticipated settled by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment document in form and substance satisfactory to this Agreement Mellon and executed by the parties to this Agreement or their successors Company and assignseach such stockholder and party. If any provision of this Agreement implies or requires that action or forbearance be taken by a partyIn addition, Mellon may require for such purpose, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be obligated to require, the party required to take execution of such written settlement by all the action or refrain from acting. In no event shall stockholders and all other parties that may have an interest in the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreementsettlement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 5 contracts
Samples: Subscription Agent Agreement (Lynch Corp), Subscription Agent Agreement (Lynch Corp), Subscription Agent Agreement (Lynch Corp)
Limitation of Liability. (a) The Custodian undertakes Notwithstanding anything to perform only the contrary contained herein, the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed Class A Revolving Conduit Lenders under this Agreement other than damages that result from their gross negligence, willful misconductare solely the corporate obligations of each such Class A Revolving Conduit Lender and shall be payable only at such time as funds are actually received by, or bad faithare available to, such Class A Revolving Conduit Lender in excess of funds necessary to pay in full all outstanding Commercial Paper issued by such Class A Revolving Conduit Lender and, to the extent funds are not available to pay such obligations, the claims relating thereto shall not constitute a claim against such Class A Revolving Conduit Lender. The Custodian and its officers, directors, employees, and agents will not Each party hereto agrees that the payment of any claim (as defined in Section 101 of Title 11 of the Bankruptcy Code) of any such party shall be liable for any consequential, indirect, punitive, or special damagessubordinated to the payment in full of all Commercial Paper.
(b) Except as provided No recourse under any obligation, covenant or agreement of any Class A Revolving Conduit Lender contained in Section 2this Agreement shall be had against any incorporator, the Custodian makes no warranty stockholder, officer, director, member, manager, employee or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability agent of the Mortgage Loans such Class A Revolving Conduit Lender or any of its Affiliates (solely by virtue of such capacity) by the documents in the Mortgage Files.
enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement is solely a corporate obligation of such Class A Revolving Conduit Lender, and that no personal liability whatever shall attach to or be incurred by any incorporator, stockholder, officer, director, member, manager, employee or agent of any Class A Revolving Conduit Lender or any of its Affiliates (csolely by virtue of such capacity) The Custodian need not expend or risk its own funds any of them under or otherwise incur financial liability in the performance by reason of any of its duties under the obligations, covenants or agreements of such Class A Revolving Conduit Lender contained in this Agreement, or implied therefrom, and that any and all personal liability for breaches by any Class A Revolving Conduit Lender of any of such obligations, covenants or agreements, either at common law or at equity, or by statute, rule or regulation, of every such incorporator, stockholder, officer, director, member, manager, employee or agent is hereby expressly waived as a condition of and in consideration for the exercise execution of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian ; provided that the foregoing shall not be responsible relieve any such Person from any liability it might otherwise have as a result of fraudulent actions taken or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loanfraudulent omissions made by them.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 5 contracts
Samples: Credit Agreement (On Deck Capital, Inc.), Credit Agreement (On Deck Capital, Inc.), Credit Agreement (On Deck Capital Inc)
Limitation of Liability. (a) The Custodian undertakes Neither the Borrower, nor any past, present or future member in or manager of Borrower, nor any owner of any direct or indirect Equity Interests in the Borrower, shall be personally liable for payments due hereunder or under any other Loan Document or for the performance of any obligation of the Borrower hereunder or thereunder, or breach of any representation or warranty made by the Borrower hereunder or thereunder. Notwithstanding the foregoing provisions of this Section 14.23(a), the Borrower shall be personally (and on a full recourse basis) liable for and shall protect, indemnify and defend the Administrative Agent and the Lenders from and against, and shall hold the Administrative Agent and the Lenders harmless of, from and against any deficiency, liability, loss, damage, costs, and expenses (including legal fees and disbursements) suffered by the Administrative Agent and/or the Lenders and caused by, or related to or as a result of any of the following: (i) the commission of a criminal act by or on behalf of the Borrower, (ii) fraud, intentional misrepresentation or intentionally inaccurate certification made at any time in connection with the Loan Documents or the Loans by or on behalf of the Borrower; (iii) misapplication or misappropriation of cash flow or other revenue derived from or in respect of the Projects, including security deposits, Insurance Proceeds, Condemnation Awards, or any rental, sales or other income derived directly or indirectly from the Projects in violation of the Loan Documents by or on behalf of the Borrower; and/or (iv) intentional or bad faith commission of waste to or of the Projects or any portion thereof by or on behalf of the Borrower. In addition, the Borrower (but not any past, present or future member in or manager of Borrower, nor any owner of any direct or indirect Equity Interests in the Borrower) shall be personally (and on a full recourse basis) liable for and shall protect, indemnify and defend the Administrative Agent and the Lenders from and against, and shall hold the Administrative Agent and the Lenders harmless of, from and against any deficiency, liability, loss, damage, costs, and expenses (including legal fees and disbursements) suffered by the Administrative Agent and/or the Lenders and caused by, or related to or as a result of any of the following: (A) voluntary bankruptcy or collusion in an involuntary bankruptcy of the Borrower by or on behalf of the Borrower, (B) any violation of Section 8.11(a) or resulting from a failure to perform only under the obligations specified in this Agreement. The IssuerEnvironmental Indemnity, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any and/or (C) interference with foreclosure following an Event of its affiliates, officers, directors, employees, Default by or agents shall be liable, directly or indirectly, for any damages or expenses arising out on behalf of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damagesBorrower.
(b) Except as provided Nothing contained in this Section 2shall impair the validity of the indebtedness, obligations or Liens arising under the Loan Documents. Notwithstanding anything to the contrary contained herein, the Custodian makes no warranty Administrative Agent may pursue any power of sale, bring any foreclosure action, any action for specific performance, or representation and has no responsibility any other appropriate action or proceedings against Borrower or any other Person for the completenesspurpose of enabling the Administrative Agent and the Lenders to realize upon the collateral for the Loans (including, validitywithout limitation, sufficiency, value, genuineness, ownership, or transferability of any Rents and Net Proceeds to the Mortgage Loans or any of the documents extent provided for in the Mortgage FilesLoan Documents) or to obtain the appointment of a receiver.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement Notwithstanding anything to the contrary notwithstandingcontained herein, the Custodian Guarantor shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of personal liability on the terms contained in the Guarantor Documents (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodiantherein).
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 5 contracts
Samples: Loan Agreement (Douglas Emmett Inc), Loan Agreement (Douglas Emmett Inc), Loan Agreement (Douglas Emmett Inc)
Limitation of Liability. The debts, obligations, and liabilities of the Company or if there exist one or more Series, then the debts, obligations, and liabilities solely of such Series, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company or that Series respectively, and no Shareholder, Director, investment adviser, officer or agent of the Company or Series shall be obligated personally for any such debt, obligation or liability of the Company or Series, respectively, solely by reason of being a Shareholder, Director, investment adviser, officer and/or agent of the Company or such Series. No Shareholder shall be liable to the Company or to any other Shareholder to restore any deficit balance in its Book Capital Account relating to any Series or Class (aexcept in either case as may be required by the Delaware Act) The Custodian undertakes or to perform only reimburse any other Shareholder for any portion of such other Shareholder's investment in the obligations specified Company or any Series or Class. Neither a Director nor an officer of the Company when acting in such capacity shall be personally liable to any Person other than the Company or a Shareholder to the extent provided in this Agreement. The IssuerAgreement for any act, omission, or obligation of the Owner TrusteeCompany, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreementany Director or any officer of the Company. Neither a Director nor an officer of the Custodian Company shall be liable for any act or omission or any conduct whatsoever in his capacity as Director or officer of the Company, provided that nothing contained herein or in the Delaware Act shall protect any Director or any officer of the Company against any liability to the Company or to Shareholders to which he would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the duties involved in the conduct of the office of Director or officer hereunder. All Persons extending credit to, contracting with or having any claim against the Company or any Series shall look only to the assets of the Company or Series that such Person extended credit to, contracted with, or has a claim against for payment under such credit, contract, or claim; and neither the Directors nor the Shareholders nor any of its affiliates, the Company's officers, directors, employees, or agents agents, whether past, present, or future, shall be liablepersonally liable therefore. Every note, directly bond, contract or indirectly, for other undertaking issued by the Company on its own behalf or on behalf of any damages one or expenses arising out more Series shall include a recitation limiting the obligation represented thereby to the Company or to such Series and its or their assets (but the omission of such a recitation shall not operate to bind any Shareholder or Director of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damagesCompany).
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 5 contracts
Samples: Limited Liability Company Agreement (Fidelity Central Investment Portfolios LLC), Limited Liability Company Agreement (Fidelity Central Investment Portfolios LLC), Limited Liability Company Agreement (Fidelity Central Investment Portfolios LLC)
Limitation of Liability. (a) The Custodian undertakes You acknowledge that each of the Copyright holder’s obligations and liabilities with respect to perform only the obligations specified Standards are exhaustively defined in this Agreement. The IssuerYou are responsible for the consequences of any use of any of the Standards (whether or not such use was consistent with the license granted hereunder) created therefrom. Whether or not the Copyright holders have been advised of their possibility, neither the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian Copyright holders nor TNI nor any of its affiliatesrepresentatives or agents, directors, officers, directors, employees, agents, representatives or agents members, shall be liable, directly whether under contract, tort (including negligence) or indirectlyotherwise, for any damages indirect, special, punitive, incidental or expenses arising out consequential loss, damage, cost or expense of the services performed under this Agreement other than damages any kind whatsoever and howsoever caused, that result from their gross negligencemay be suffered by you or any of your directors, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for agents, representatives or contractors or any consequential, indirect, punitive, or special damagesthird party.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability If at any time an allegation of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance infringement of any rights of its duties under this Agreementany third party is made, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability Copyright holder’s is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes likely to be genuine and duly authorized made, with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect toany of the Standards, the validityCopyright holders may, adequacyat its option and at its own expense (i) obtain for you the right to continue using the Standard, (ii) modify or replace the Standards or any portion thereof so as to avoid any such claim of infringements, or perfection of any lien on or security interest in any Mortgage Loan.
(fiii) Any other provision of this Agreement refund to you the contrary notwithstanding, License Fee. the Custodian Copyright holders shall have no notice of, and shall not liability to you if any claim of infringement would have been avoided except for your refusal to use any modified or replacement Standard supplied or offered to be bound by, any other document supplied pursuant to this Section 4(b) or agreement executed or delivered in connection with, or intended to control any part of, otherwise cease using the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreementStandard. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to anything contained in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only and except as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment Section 4(b) hereof, the Copyright holders liability to you for damages pursuant to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a partySection 4(b), but is silent as to which party has the duty to act or refrain from actingif any, the parties agree that the Custodian shall not be exceed the party required amounts of the License Fee paid by you for the Standards subject to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreementsuch claim.
(hc) Nothing in this Agreement shall impose on Section 4(b) state the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability entire liability of the Custodian Copyright holders with respect to perform its duties under this Agreement.
(i) The Custodian may execute the infringement or alleged infringement of any third party rights of any kind whatsoever by any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those dutiesStandard.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 5 contracts
Samples: Site License Agreement, Tni Standards License Agreement, Tni Standards License Agreement
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Adviser shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Company in connection with the matters to which this Agreement relates, indirectexcept a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services or a loss resulting from willful misfeasance, punitive, bad faith or special damages.
(b) Except as provided in Section 2, gross negligence on the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability part of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability Adviser in the performance of any its duties or from reckless disregard by it of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on obligations and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through (“disabling conduct”). The Company will indemnify the Adviser against and hold it harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) resulting from any claim, demand, action or suit not resulting from disabling conduct by the Adviser. Indemnification shall be made only following: (i) a final decision on the merits by a court or other body before whom the proceeding was brought that the Adviser was not liable by reason of its agentsdisabling conduct or (ii) in the absence of such a decision, attorneys-in-facta reasonable determination, or affiliates. Any agent, attorney-in-fact, or affiliate based upon a review of the Custodian facts, that the Adviser was not liable by reason of disabling conduct by (and any affiliate's directors, officers, agents, and employeesa) that performs duties the vote of a majority of a quorum of Trustees of the Trust who are neither "interested persons" of the Company nor parties to the proceeding ("disinterested non-party Trustees") or (b) an independent legal counsel in connection with this Agreement a written opinion. The Adviser shall be entitled to advances from the same benefits Company for payment of the indemnification, waiver, and other protective provisions reasonable expenses incurred by it in connection with the matter as to which it is seeking indemnification in the Custodian manner and to the fullest extent permissible under the applicable law. The Adviser shall provide to the Company a written affirmation of its good faith belief that the standard of conduct necessary for indemnification by the Company has been met and a written undertaking to repay any such advance if it should ultimately be determined that the standard of conduct has not been met. In addition, at least one of the following additional conditions shall be met: (a) the Adviser shall provide a security in form and amount acceptable to the Company for its undertaking; (b) the Company is insured against losses arising by reason of the advance; or (c) a majority of a quorum of disinterested non-party Trustees, or independent legal counsel, in a written opinion, shall have determined, based upon a review of facts readily available to the Company at the time the advance is proposed to be made, that there is reason to believe that the Adviser will ultimately be found to be entitled under to indemnification. The limitations on liability and indemnification provisions of this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian Section 12 shall not be responsible applicable to any losses, claims, damages, liabilities or expenses arising from the Adviser's rights to the Company’s name. The Adviser shall indemnify and hold harmless the Company for delays or failures any claims arising from the use of the term “Kinetics” in performance resulting from acts beyond its control. Acts beyond its control include acts the name of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disastersCompany.
Appears in 5 contracts
Samples: Investment Advisory Agreement (Kinetics Portfolios Trust), Investment Advisory Agreement (Kinetics Portfolios Trust), Investment Advisory Agreement (Kinetics Mutual Funds Inc)
Limitation of Liability. (a) The Custodian undertakes In the performance of the services required by this ACH Origination Service Agreement, Bank shall be entitled to perform rely solely on the information, representations, and warranties provided by Customer pursuant to this Agreement, and shall not be responsible for the accuracy or completeness thereof. Bank shall be responsible only for performing the obligations specified services expressly provided for in this AgreementAgreement and shall be liable only for its gross negligence or willful misconduct in performing those services. The IssuerBank shall not be responsible for Customer's acts or omissions (including, without limitation, the Owner Trusteeamount, Master Serviceraccuracy, timeliness of transmittal, or authorization of any Entry received from Customer) or those of any other person, including, without limitation, any federal reserve bank, ACH operator or transmission or communications facility, any receiver or RDFI (including, without limitation, the return of any Entry by such receiver or RDFI), and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents such person shall be liabledeemed Bank's agent. Customer agrees to indemnify Bank against any loss, directly liability or indirectly, for any damages expense (including attorneys' fees and costs) resulting from or expenses arising out of the services performed under this Agreement other than damages any claim of any person that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable Bank is responsible for any consequential, indirect, punitive, act or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability omission of the Mortgage Loans Customer or any of the documents other person described in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Section. Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable forforegoing provisions, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement addition to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice “force majeure” provisions of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, Bank shall be excused from failing to the extent the terms are referenced, transmit or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document delay in transmitting an Entry if such transmittal would result in Bank’s having exceeded any limitation upon its intra-day net funds position established pursuant to present or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement future federal reserve guidelines or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If Bank's reasonable judgment otherwise would violate any provision of this Agreement implies any present or requires that action future risk control program of the federal reserve or forbearance any rule or regulation of any other U.S. Governmental regulatory authority. Subject to the foregoing limitations, Bank's liability for loss of interest resulting from its error or delay shall be taken calculated by using a partyrate equal to the average federal funds rate at the Federal Reserve Bank of New York for the period involved. At the Bank's option, but is silent as payment of such interest may be made by crediting the account. Customer acknowledges and agrees that, if an Entry describes the Receiver inconsistently by name and account number, payment of the Entry transmitted by Bank to which party has the duty to act RDFI may be made by the RDFI (or refrain by Bank in the case of an On-Us Entry) on the basis of the account number supplied by the Customer, even if it identifies a person different from actingthe named Receiver, the parties agree and that the Custodian Customer’s obligation to pay the amount of the Entry to Bank is not excused in such circumstances. Customer is liable for and must settle with the Bank for any Entry initiated by Customer that identifies the Receiver by account or identifying number or by name and account or identifying number. Upon the request of Bank, Customer will obtain and maintain a fidelity bond in the amount of the exposure limit. Alternatively, Bank may require Customer to execute a guarantee. Customer shall not be retain data and file adequate to permit the party required remaking of Entries for five (5) Business Days following the date of their transmittal by Bank as provided herein and shall provide such Data to take the action or refrain from actingBank upon its request. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdictionAll data media, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this AgreementEntries, Security Procedures, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with related records used by Bank for transactions contemplated by this Agreement shall be entitled and remain Bank’s property. Bank may, at its sole discretion, make available such information upon Customer’s request. Any expenses incurred by Bank in making such information available to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian Customer shall remain responsible for the performance of those dutiesbe paid by Customer.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 5 contracts
Samples: Commercial Online Banking Agreement, Commercial Online Banking Agreement, Commercial Online Banking Agreement
Limitation of Liability. In addition to the limitations of liability contained in Sections 2 and 3 of this Agreement:
(a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Transfer Agent shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Trust or the Funds in connection with the matters to which this Agreement relates, indirectexcept for a loss resulting from Transfer Agent’s willful misfeasance, punitivebad faith or negligence in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement (“Transfer Agent Loss”). Furthermore, Transfer Agent shall not be liable for: (1) any action taken or omitted to be taken in accordance with or in reliance upon Instructions, communications, data, documents or information (without investigation or verification) received by Transfer Agent from an officer or representative of the Trust or from any Authorized Person; or, (2) any action taken, or special damagesomission by, a Fund, the Trust, Investment Adviser, any Authorized Person or any past or current service provider (not including Transfer Agent). Transfer Agent shall reimburse the Trust as soon as reasonably practicable for any Transfer Agent Loss that is equal to or greater than $0.01 per share to any Fund share class. Additionally, the Transfer Agent will accumulate the net Transfer Agent Losses less than $0.01 per share to any Fund share class over each calendar quarter. If the accumulated net Transfer Agent loss is equal to or greater than $0.01 per share for any Fund share classes at the end of a quarter, the Transfer Agent will reimburse the Trust as soon as reasonably practicable.
(b) Except as provided in Section 2Notwithstanding anything herein to the contrary, the Custodian makes no warranty Transfer Agent will be excused from its obligation to perform any Service or representation and has no responsibility obligation required of it hereunder for the completenessduration that such performance is prevented by events beyond its reasonable control and shall not be liable for any default, validitydamage, sufficiencyloss of data or documents, valueerrors, genuineness, ownership, or transferability of the Mortgage Loans delay or any of the documents in the Mortgage Filesother loss whatsoever caused thereby. Transfer Agent will, however, take all reasonable steps to minimize service interruptions for any period that such interruption continues beyond its reasonable control.
(c) The Custodian need not expend In no event and under no circumstances shall the Indemnified Parties (as defined below) be liable to anyone, including, without limitation, the other party, under any theory of tort, contract, strict liability or risk its own funds other legal or otherwise incur financial liability in the performance equitable theory for lost profits, exemplary, punitive, special, indirect or consequential damages for any act or failure to act under any provision of any this Agreement regardless of its duties under this Agreement, or in the exercise of its rights, whether such damages were foreseeable and even if the Custodian believes that repayment advised of the funds or adequate indemnity against the risk or liability is not reasonably assured to itpossibility thereof.
(d) Without limiting Notwithstanding any other provision of this Agreement, Transfer Agent shall have no duty or obligation under this Agreement to inquire into, and shall not be liable for:
(i) the generality legality of the foregoingissue or sale of any Shares, the Custodian sufficiency of the amount to be received therefor, or the authority of the Trust, as the case may rely on and shall be, to request such sale or issuance;
(ii) the legality of a transfer, exchange, purchase or redemption of any Shares, the propriety of the amount to be protected paid therefor, or the authority of the Trust, as the case may be, to request such transfer, exchange or redemption;
(iii) the legality of the declaration of any dividend by the Trust, or the legality of the issue of any Shares in payment of any stock dividend;
(iv) the legality of any recapitalization or readjustment of Shares;
(v) Transfer Agent’s acting in good faith on any notice upon telephone or other communication electronic instructions relating to the purchase, transfer, exchange or redemption of Shares received by it Transfer Agent in accordance with procedures established by Transfer Agent and the Trust; or
(vi) the offer or sale of Shares in violation of any requirement under the securities laws or regulations of any jurisdiction that it reasonably believes to such Shares be genuine and duly authorized qualified for sale in such state or in violation of any stop order or determination or ruling by any state with respect to all matters pertaining to this Agreement and its duties under this Agreementthe offer or sale of such Shares in such state.
(e) The Custodian Transfer Agent may, in effecting transfers and redemptions of Shares, rely upon those provisions of the Uniform Act for the Simplification of Fiduciary Security Transfers (or such other statutes which protect it and the Trust in not requiring complete fiduciary documentation) and shall not be responsible for any act done or liable foromitted by it in good faith in reliance upon such laws. Notwithstanding the foregoing or any other provision contained in this Agreement to the contrary, Transfer Agent shall be fully protected by each Fund in not requiring any instruments, documents, assurances, endorsements or guarantees, including, without limitation, any Medallion signature guarantees, in connection with a redemption, exchange or transfer of Shares whenever Transfer Agent reasonably believes that requiring the same would be inconsistent with the transfer, exchange and makes no representation or warranty with respect to, redemption procedures described in the validity, adequacy, or perfection of any lien on or security interest in any Mortgage LoanProspectus.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice The obligations of the terms (including definitions not otherwise set forth in full in this Agreement) parties under Section 6 shall indefinitely survive the termination of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 5 contracts
Samples: Transfer Agency Agreement (Alger Portfolios), Transfer Agency Agreement (Alger Institutional Funds), Transfer Agency Agreement (Alger Funds)
Limitation of Liability. (a) The Custodian undertakes In the absence of bad faith, negligence or misconduct on the part of the Backup Servicer, the Backup Servicer shall not be liable to perform only the Issuer, the Indenture Trustee, the Seller, the Indenture Collateral Agent, the Insurer or any other Person with respect to any action taken or not taken by it in the performance of its obligations specified in under this Agreement. The Issuer, obligations of the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under Backup Servicer shall be determined solely by the express provisions of this Agreement. Neither No representation, warranty, covenant, agreement, obligation or duty of the Custodian nor any of its affiliates, officers, directors, employees, or agents Backup Servicer shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under implied with respect to this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damagesthe Backup Servicer's services hereunder.
(b) Except The Backup Servicer may rely, and shall be protected in acting or refraining to act, upon and need not verify the accuracy of, any written instruction, notice, order, request, direction, certificate, opinion or other instrument or document believed by the Backup Servicer to be genuine and to have been signed and presented by the proper party or parties, which, with respect to the Issuer, Indenture Trustee, Indenture Collateral Agent or Insurer, shall mean signature and presentation by Authorized Representatives (as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents such term is defined in the Mortgage FilesCustodial Agreement) whether such presentation is by personal delivery, express delivery or facsimile.
(c) The Custodian need Backup Servicer may consult with counsel selected by it with regard to legal questions arising out of or in connection with this Agreement, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Backup Servicer in reasonable reliance, in good faith, and in accordance therewith.
(d) Except as expressly provided for herein, the provisions of this Agreement shall not require the Backup Servicer to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, Agreement if the Custodian believes it shall have reasonable grounds for believing that repayment of the such funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian Backup Servicer shall not be responsible or liable for, and makes no representation or warranty with respect torespect, the validity, adequacy, adequacy or perfection of any lien on upon, or security interest in any Mortgage Loan.
Receivables or Custodian's Receivable Files (fas such term is defined in the Custodial Agreement) Any other provision of this Agreement purported to be granted at any time to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the CustodianTrustee.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 5 contracts
Samples: Sale and Servicing Agreement (Prudential Securities Secured Financing Corp), Sale and Servicing Agreement (Ml Asset Backed Corp), Sale and Servicing Agreement (Painewebber Asset Acceptance Corp)
Limitation of Liability. (a) In performing any duties hereunder, the Escrow Agent shall not be liable to any party hereto for damages, losses or expenses, except for gross negligence or willful misconduct on the part of the Escrow Agent. The Custodian undertakes to perform only the obligations specified Escrow Agent shall not incur any such liability for any action taken or omitted in reliance upon any instrument, including any written statement or affidavit provided for in this Agreement, that the Escrow Agent in good faith believes to be genuine, nor will the Escrow Agent be liable or responsible if acting in good faith for forgeries, fraud, impersonations or determining the scope of any representative authority. The IssuerIn addition, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither Escrow Agent may consult with legal counsel (whether such counsel will be regularly retained or specifically employed) in connection with the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed Escrow Agent's duties under this Agreement other than damages that result from their gross negligenceand shall be fully protected in any act taken, willful misconductsuffered, or bad faithpermitted by it in good faith in accordance with the advice of counsel. The Custodian Escrow Agent is not responsible for determining and its officers, directors, employees, and agents will verifying the authority of any Person acting or purporting to act on behalf of any party hereto or beneficiary hereof. The Escrow Agent shall not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance expiration of any rights under any statute of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized limitations with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assignsany documents deposited with the Escrow Agent. If any provision of this Agreement implies or requires that action or forbearance be taken by a partyIN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, but is silent as to which party has the duty to act or refrain from actingDIRECTLY OR INDIRECTLY, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than FOR ANY (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this AgreementDAMAGES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED HEREUNDER, and OTHER THAN DAMAGES WHICH RESULT FROM THE ESCROW AGENT'S FAILURE TO ACT IN ACCORDANCE WITH THE STANDARDS SET FORTH IN THIS AGREEMENT, OR (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this AgreementSPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE ESCROW AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 5 contracts
Samples: Merger Agreement (Superior Galleries Inc), Merger Agreement (Dgse Companies Inc), Escrow Agreement (Spacedev Inc)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian Trustees shall not be responsible or liable for, and makes no representation in any event for any neglect or warranty with respect to, the validity, adequacy, or perfection wrongdoing of any lien on officer, agent, employee, investment advisor or security interest in manager, principal underwriter or custodian, nor shall any Mortgage Loan.
(f) Any other provision Trustee be responsible for the act or omission of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document Trustee. Nothing in this Declaration of Trust shall protect any Trustee against any liability to which such Trustee would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or agreement reckless disregard of the duties involved in the conduct of the office of Trustee. Every note, bond, contract, instrument, certificate, Share or undertaking and every other act or thing whatsoever executed or delivered done by or on behalf of the Trust or the Trustee or any of them in connection with, or intended to control any part of, with the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian Trust shall be conclusively deemed to have been executed or done only in or with respect to their or his capacity as Trustees or Trustee and neither such Trustees or Trustee nor the Shareholders shall be personally liable thereon. Every note, bond, contract, instrument, certificate or undertaking made or issued by the Trustees or by any officers or officer shall give notice that this Declaration of Trust is on file with the Secretary of State of The Commonwealth of Massachusetts and shall recite that the same was executed or made by or on behalf of the terms (including definitions Trust by them as Trustees or Trustee or as officers or officer and not otherwise set forth in full in this Agreement) individually and that the obligations of other documents such instrument are not binding upon any of them or the Shareholders individually but are binding only upon the assets and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy property of the document Trust or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision particular series of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this AgreementShares, and (ii) any jurisdiction where its ownership of property may contain such further recital as he or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian they may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreementdeem appropriate, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian omission thereof shall not operate to bind any Trustees or Trustee or officers or officer or Shareholders or Shareholder individually. All persons extending credit to, contracting with or having any claim against the Trust or a particular series of Shares shall look only to the assets of the Trust or the assets of that particular series of Shares, as the case may be, for payment under such credit, contract or claim; and neither the Shareholders nor the Trustees, nor any of the Trust's officers, employees or agents, whether past, present or future, shall be responsible for delays or failures in performance resulting from acts beyond its controlpersonally liable therefor. Acts beyond its control include acts of GodTRUSTEES' GOOD FAITH ACTION, strikesEXPERT ADVICE, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.NO BOND OR SURETY -------------------------------------------------------------
Appears in 4 contracts
Samples: Agreement and Declaration of Trust (Kemper Small Capitalization Equity Fund), Agreement and Declaration of Trust (Kemper Total Return Fund), Agreement and Declaration of Trust (Kemper Growth Fund)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Administrator shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Agreement relates, indirectexcept for a loss resulting from the Administrator’s willful misfeasance, punitivebad faith or gross negligence in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement. Furthermore, the Administrator shall not be liable for (i) any action taken or omitted to be taken in accordance with or in reliance upon written or oral instructions, advice, data, documents or information (without investigation or verification) received by the Administrator from or on behalf of the Board or an officer or representative of the Fund, or special damagesfrom a representative of any of the parties referenced in Section 2, provided that the Administrator has acted on the reasonable belief that such written or oral instructions, advice, data, documents or information are genuine and have been signed or presented by the proper party, (ii) its reliance on the security valuations without investigation or verification provided by pricing service(s), the Board, a Portfolio Manager or other representatives of the Fund, (iii) any liability arising from the offer or sale of any Unit by the Fund in reliance on exemptions from registration under the Securities Act and the applicable securities laws of each state and territory in which the Fund intends to offer and sell Units, or (iv) any action taken or omission by the Fund, the Board, Portfolio Mangers or any past or current service provider.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has The Administrator assumes no responsibility hereunder, and shall not be liable, for the completenessany default, validitydamage, sufficiencyloss of data or documents, valueerrors, genuineness, ownership, or transferability of the Mortgage Loans delay or any of the documents in the Mortgage Filesother loss whatsoever caused by events beyond its reasonable control. The Administrator will, however, take all reasonable steps to minimize service interruptions for any period that such interruption continues beyond its control.
(c) The Custodian need not expend Fund agrees to indemnify and hold harmless the Administrator, its employees, agents, officers, directors, affiliates and nominees (collectively, the “Indemnified Parties”) from and against any and all claims, demands, actions and suits, and from and against any and all judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees and other expenses of every nature and character which may be asserted against or risk its own funds incurred by any Indemnified Party or otherwise incur financial liability for which any Indemnified Party may be held liable (a “Claim”) arising out of or in any way relating to (i) the Administrator’s actions or omissions except to the extent a Claim resulted from the Administrator’s willful misfeasance, bad faith, or gross negligence in the performance of its duties hereunder or from reckless disregard by it of its obligations and duties hereunder; (ii) the Administrator’s reliance on, implementation of or use of (without investigation or verification) advice, instructions, requests, directions, information, data, records and documents received by the Administrator from any party referenced in Section 2 hereof or other representative of the Fund, provided that the Administrator has acted on the reasonable belief that such written or oral instructions, advice, data, documents or information are genuine and have been signed or presented by the proper party, (iii) any breach of any of its duties under this Agreementthe Fund’s obligations, representations or warranties hereunder, or in the exercise of its rights, if the Custodian believes that repayment (iv) any action taken by or omission of the funds Fund, its Board, any Portfolio Managers, or adequate indemnity against the risk any past or liability is not reasonably assured to itcurrent service provider.
(d) Without limiting In no event and under no circumstances shall the generality Administrator, its affiliates or any of the foregoingits or their officers, directors, members, agents or employees be liable to anyone, including, without limitation, the Custodian may rely on and shall be protected in acting in good faith on other party, under any notice theory of tort, contract, strict liability or other communication received by it that it reasonably believes legal or equitable theory for lost profits, exemplary, punitive, special, indirect or consequential damages for any act or failure to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties act under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, Agreement. The indemnity and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly defense provisions set forth in this Agreement or in a written amendment to this Agreement executed by Section 5 shall indefinitely survive the parties to this Agreement or their successors and assigns. If any provision termination and/or assignment of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Administration, Fund Accounting and Recordkeeping Agreement (Partners Group Private Equity (Institutional TEI), LLC), Administration, Fund Accounting and Recordkeeping Agreement (Partners Group Private Equity (TEI), LLC), Administration, Fund Accounting and Recordkeeping Agreement (Partners Group Private Equity, LLC)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Investment Adviser shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Agreement relates, indirectexcept a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services or a loss resulting from willful misfeasance, punitive, bad faith or special damages.
(b) Except as provided in Section 2, gross negligence on the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability part of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability Investment Adviser in the performance of any its duties or from reckless disregard by it of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on obligations and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through (“disabling conduct”). The Portfolio will indemnify the Investment Adviser against and hold it harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) resulting from any claim, demand, action or suit not resulting from disabling conduct by the Investment Adviser. Indemnification shall be made only following: (i) a final decision on the merits by a court or other body before whom the proceeding was brought that the Investment Adviser was not liable by reason of its agentsdisabling conduct or (ii) in the absence of such a decision, attorneys-in-facta reasonable determination, or affiliates. Any agent, attorney-in-fact, or affiliate based upon a review of the Custodian facts, that the Investment Adviser was not liable by reason of disabling conduct by (and any affiliate's a) the vote of a majority of a quorum of directors of the Portfolio who are neither “interested persons” of the Fund nor parties to the proceeding (“disinterested non-party directors, officers, agents, and employees”) that performs duties or (b) an independent legal counsel in connection with this Agreement a written opinion. The Investment Adviser shall be entitled to advances from the same benefits Portfolio for payment of the indemnification, waiver, and other protective provisions reasonable expenses incurred by it in connection with the matter as to which it is seeking indemnification in the Custodian manner and to the fullest extent permissible under the Maryland General Corporation Law. The Investment Adviser shall provide to the Portfolio a written affirmation of its good faith belief that the standard of conduct necessary for indemnification by the Portfolio has been met and a written undertaking to repay any such advance if it should ultimately be determined that the standard of conduct has not been met. In addition, at least one of the following additional conditions shall be met: (a) the Investment Adviser shall provide a security in form and amount acceptable to the Portfolio for its undertaking; (b) the Portfolio is insured against losses arising by reason of the advance; or (c) a majority of a quorum of disinterested non-party directors, or independent legal counsel, in a written opinion, shall have determined, based upon a review of facts readily available to the Portfolio at the time the advance is proposed to be made, that there is reason to believe that the Investment Adviser will ultimately be found to be entitled to indemnification. Any amounts payable by the Portfolio under this Agreement, but Section shall be satisfied only against the Custodian shall remain responsible for assets of the performance Portfolio and not against the assets of those duties.
(j) any other investment portfolio of the Fund. The Custodian limitations on liability and indemnification provisions of this Section 12 shall not be responsible applicable to any losses, claims, damages, liabilities or expenses arising from the Investment Adviser’s rights to the Portfolio’s name. [The Investment Adviser shall indemnify and hold harmless the Fund and the Portfolio for delays or failures any claims arising from the use of the term “Summit Global Investments” in performance resulting from acts beyond its control. Acts beyond its control include acts the name of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disastersPortfolio.]
Appears in 4 contracts
Samples: Investment Advisory Agreement (RBB Fund, Inc.), Investment Advisory Agreement (RBB Fund Inc), Investment Advisory Agreement (RBB Fund Inc)
Limitation of Liability. (a) The Custodian undertakes Except with respect to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses claim arising out of the services performed under this Agreement other than damages that result from willful misconduct or gross negligence of any Lender, any Administrative Agent, the Program Agent or their gross negligence, willful misconduct, or bad faith. The Custodian and its officersrespective Affiliates, directors, officers, employees, and attorneys or agents will not (each a “Lender Party”), no claim may be liable made by any Transaction Party or any other Person against any Lender Party for any consequentialspecial, indirect, punitiveconsequential or punitive damages in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement or any other Facility Document, or special any act, omission or event occurring in connection herewith or therewith; and each of the Borrower and the Servicer hereby waives, releases, and agrees not to xxx upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.
(b) Except Notwithstanding anything to the contrary contained herein, the obligations of the Conduit Lenders under this Agreement are solely the corporate obligations of each such Conduit Lender and shall be payable only at such time as provided funds are actually received by, or are available to, such Conduit Lender in excess of funds necessary to pay in full all outstanding Promissory Notes issued by such Conduit Lender and, to the extent funds are not available to pay such obligations, the claims relating thereto shall not constitute a claim against such Conduit Lender until such funds for such purpose thereafter become available. Each party hereto agrees that the payment of any claim (as defined in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability 101 of Title 11 of the Mortgage Loans or Bankruptcy Code) of any such party shall be subordinated to the payment in full of the documents in the Mortgage Filesall Promissory Notes.
(c) The Custodian need not expend No recourse under any obligation, covenant or risk agreement of any Conduit Lender contained in this Agreement shall be had against any incorporator, stockholder, officer, director, member, manager, employee or agent of such Conduit Lender or any of its own funds Affiliates (solely by virtue of such capacity) by the enforcement of any assessment or otherwise incur financial by any legal or equitable proceeding, by virtue of any statute or otherwise; it being expressly agreed and understood that this Agreement is solely a corporate obligation of such Conduit Lender, and that no personal liability in the performance whatever shall attach to or be incurred by any incorporator, stockholder, officer, director, member, manager, employee or agent of any Conduit Lender or any of its Affiliates (solely by virtue of such capacity) or any of them under or by reason of any of its duties under the obligations, covenants or agreements of such Conduit Lender contained in this Agreement, or implied therefrom, and that any and all personal liability for breaches by any Conduit Lender of any of such obligations, covenants or agreements, either at common law or at equity, or by statute, rule or regulation, of every such incorporator, stockholder, officer, director, member, manager, employee or agent is hereby expressly waived as a condition of and in consideration for the exercise execution of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian ; provided that the foregoing shall not be responsible relieve any such Person from any liability it might otherwise have as a result of fraudulent actions taken or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loanfraudulent omissions made by them.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Loan and Servicing Agreement (SNAP-ON Inc), Omnibus Amendment (SNAP-ON Inc), Loan and Servicing Agreement (SNAP-ON Inc)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 26.7(f) hereof, and as otherwise provided under Delaware law, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement Shareholders shall be entitled to the same benefits limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of Delaware and no Shareholder shall be liable for claims against or debts of the indemnificationTrust in excess of its Percentage Interest of the Trust Estate, waiverexcept in the case of a Shareholder that is an Authorized Participant, in the event that the liability is founded upon misstatements or omissions contained in such Shareholder’s Authorized Participant Agreement. In addition, and subject to the exceptions set forth in the immediately preceding sentence, the Trust shall not make a claim against a Shareholder with respect to amounts distributed to such Shareholder or amounts received by such Shareholder upon redemption of such Shareholder’s Shares unless, under Delaware law, such Shareholder is liable to repay such amount.
(b) The Trust shall indemnify to the full extent permitted by law and the other protective provisions of this Trust Agreement, and to which the Custodian extent of the Trust Estate, each Shareholder against any claims of liability asserted against such Shareholder solely because it is entitled under a beneficial owner of one or more Shares as a Shareholder.
(c) Every written note, bond, contract, instrument, certificate or undertaking made or issued by the Sponsor on behalf of the Trust shall give notice to the effect that the same was executed or made by or on behalf of the Trust and that the obligations of such instrument are not binding upon the Shareholders individually but are binding only upon the assets and property of the Trust, and no resort shall be had to the Shareholders’ personal property for satisfaction of any obligation or claim thereunder, and appropriate references may be made to this AgreementTrust Agreement and may contain any further recital that the Sponsor deems appropriate, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian omission thereof shall not be responsible for delays operate to bind the Shareholders individually or failures otherwise invalidate any such note, bond, contract, instrument, certificate or undertaking. Nothing contained in performance resulting from acts beyond its control. Acts beyond its control include acts this Section 7.3 shall diminish the limitation on the liability of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disastersTrust to the extent set forth in Section 3.5 hereof.
Appears in 4 contracts
Samples: Trust Agreement (Fidelity Ethereum Fund), Trust Agreement (Fidelity Ethereum Fund), Trust Agreement (Fidelity Wise Origin Bitcoin Fund)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The IssuerBank, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliatesdirectors, officers, directors, employees, or employees and agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by MassMutual or the Trust in connection with the performance of its obligations and duties under this Agreement, indirectexcept a loss resulting from willful misfeasance, punitivebad faith or negligence in the performance of such obligations and duties, or special by reason of its reckless disregard thereof. MassMutual and the Trust will indemnify the Bank, its directors, officers, employees and agents against and hold it and them harmless from any and all losses, claims, damages, liabilities or expenses (including legal fees and expenses) resulting from any claim, demand, action or suit (i) arising out of the actions or omissions of MassMutual, including, but not limited to, inaccurate Daily Sales Reports and misidentification of Exempt Transactions; (ii) arising out of the offer or sale of any securities of the Trust in violation of (x) any requirement under the federal securities laws or regulations, (y) any requirement under the securities laws or regulations of any state, or (z) any stop order or other determination or ruling by any federal or state agency with respect to the offer or sale of such securities; or (iii) not resulting from the willful misfeasance, bad faith or negligence of the Bank in the performance of such obligations and duties or by reason of its reckless disregard thereof.
(b) Except as provided in Section 2The Bank may apply to MassMutual at any time for instructions and may, the Custodian makes no warranty or representation and has no responsibility with prior MassMutual approval, consult counsel for the completeness, validity, sufficiency, value, genuineness, ownershipMassMutual, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability counsel, and with accountants and other experts with respect to any matter arising in the performance of any of connection with its duties under this Agreementhereunder, and the Bank shall not be liable or in the exercise of its rights, if the Custodian believes that repayment of the funds accountable for any action taken or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting omitted by it in good faith on any notice in accordance with such instruction, or with the opinion of such counsel, accountants, or other communication received by it that experts. The Bank shall not be liable for any act or omission taken or not taken in reliance upon any document, certificate or instrument which it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) be signed or presented by the proper person or persons. The Custodian Bank shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed held to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) any change of other documents and agreements executed or delivered in connection withauthority of any officers, employees, or intended to control any part of, agents of MassMutual or the transactions anticipated Trust until receipt of written notice thereof has been received by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the CustodianBank from MassMutual.
(gc) The Custodian shall have only In the event the Bank is unable to perform, or is delayed in performing, its obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by under the parties to this Agreement or their successors and assigns. If any provision terms of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership because of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockoutslegal constraint, riotsgovernment actions, acts war, emergency conditions, interruption of war electrical power or terrorismother utilities, epidemicsequipment or transmission failure or damage reasonably beyond its control or other causes reasonably beyond its control, nationalizationthe Bank shall not be liable to MassMutual or the Trust for any damages resulting from such failure to perform, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakesdelay in performance, or other disastersotherwise from such causes.
(d) Notwithstanding anything to the contrary in this Agreement, in no event shall the Bank be liable for special, incidental or consequential damages, even if advised of the possibility of such damages.
Appears in 4 contracts
Samples: Sub Administration Agreement (Massmutual Premier Funds), Sub Administration Agreement (MML Series Investment Fund II), Sub Administration Agreement (Massmutual Premier Funds)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Investment Adviser shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialloss suffered by the Trust in connection with the matters to which this Agreement relates, indirectexcept a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services or a loss resulting from willful misfeasance, punitive, bad faith or special damages.
(b) Except as provided in Section 2, gross negligence on the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability part of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability Investment Adviser in the performance of any its duties or from reckless disregard by it of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on obligations and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through (“disabling conduct”). The Fund will indemnify the Investment Adviser against and hold it harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) resulting from any claim, demand, action or suit not resulting from disabling conduct by the Investment Adviser. Indemnification shall be made only following: (i) a final decision on the merits by a court or other body before whom the proceeding was brought that the Investment Adviser was not liable by reason of its agentsdisabling conduct or (ii) in the absence of such a decision, attorneys-in-facta reasonable determination, or affiliates. Any agent, attorney-in-fact, or affiliate based upon a review of the Custodian facts, that the Investment Adviser was not liable by reason of disabling conduct by (and any affiliate's a) the vote of a majority of a quorum of directors of the Trust who are neither “interested persons” of the Trust nor parties to the proceeding (“disinterested non-party directors, officers, agents, and employees”) that performs duties or (b) an independent legal counsel in connection with this Agreement a written opinion. The Investment Adviser shall be entitled to advances from the same benefits Fund for payment of the indemnification, waiver, and other protective provisions reasonable expenses incurred by it in connection with the matter as to which it is seeking indemnification in the Custodian manner and to the fullest extent permissible under the Delaware Statutory Trust Act. The Investment Adviser shall provide to the Fund a written affirmation of its good faith belief that the standard of conduct necessary for indemnification by the Fund has been met and a written undertaking to repay any such advance if it should ultimately be determined that the standard of conduct has not been met. In addition, at least one of the following additional conditions shall be met: (a) the Investment Adviser shall provide a security in form and amount acceptable to the Fund for its undertaking; (b) the Fund is insured against losses arising by reason of the advance; or (c) a majority of a quorum of disinterested non-party directors, or independent legal counsel, in a written opinion, shall have determined, based upon a review of facts readily available to the Fund at the time the advance is proposed to be made, that there is reason to believe that the Investment Adviser will ultimately be found to be entitled to indemnification. Any amounts payable by the Fund under this Agreement, but Section shall be satisfied only against the Custodian shall remain responsible for assets of the performance Fund and not against the assets of those duties.
(j) any other investment portfolio of the Trust. The Custodian limitations on liability and indemnification provisions of this Section shall not be responsible applicable to any losses, claims, damages, liabilities or expenses arising from the Investment Adviser’s rights to the Fund’s name. The Investment Adviser shall indemnify and hold harmless the Trust and the Fund for delays any claims arising from the use of the terms “Xxxxxxx Capital Management” “Xxxxxxx Capital” or failures “Xxxxxxx” in performance resulting from acts beyond its control. Acts beyond its control include acts the name of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disastersFund.
Appears in 4 contracts
Samples: Investment Advisory Agreement (SCM Trust), Investment Advisory Agreement (SCM Trust), Investment Advisory Agreement (SCM Trust)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified Notwithstanding anything in this Agreement. The IssuerLease to the contrary, any remedy of Tenant for the Owner Trusteecollection of a judgment (or other judicial process) requiring the payment of money by Landlord in the event of any default by Landlord hereunder or any claim, Master Servicercause of action or obligation, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliatescontractual, officersstatutory or otherwise by Tenant against Landlord concerning, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of or relating to any matter relating to this Lease and all of the services performed under this Agreement other than damages that result from their gross negligencecovenants and conditions or any obligations, willful misconductcontractual, statutory, or bad faith. The Custodian otherwise set forth herein, shall be limited solely and its officers, directors, employeesexclusively to an amount which is equal to the lesser of (i) the interest of Landlord in and to the Building, and agents will not (ii) the interest Landlord would have in the Building if the Building were encumbered by third party debt in an amount equal to eighty percent (80%) of the then current value of the Building (as such value is reasonably determined by Landlord). Any judgments rendered against Landlord shall be liable for any consequential, indirect, punitivesatisfied solely out of proceeds of sale of Landlord’s interest in the Building. No other property or assets of Landlord, or special damages.
any member, officer, director, shareholder, partner, trustee, agent, servant or employee of Landlord (bthe “Representatives”) Except as provided in Section 2shall be subject to levy, execution or other enforcement procedure for the satisfaction of Tenant’s remedies under or with respect to this Lease, Landlord’s obligations to Tenant, whether contractual, statutory or otherwise, the Custodian makes no warranty or representation relationship of Landlord and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownershipTenant hereunder, or transferability Tenant’s use or occupancy of the Mortgage Loans Building. Tenant further understands that any liability, duty or obligation of Landlord to Tenant not existing or accrued, shall automatically cease and terminate as of the date that Landlord or any of Landlord’s Representatives no longer have any right, title or interest in or to the documents in the Mortgage Files.
(c) Building. The Custodian need provisions hereof shall inure to Landlord’s successors and assigns including any Lender. The foregoing provisions are not expend or risk its own funds or otherwise incur financial liability in intended to relieve Landlord from the performance of any of its duties Landlord’s obligations under this AgreementLease, or but only to limit the personal liability of Landlord in the exercise case of its rights, if the Custodian believes that repayment recovery of the funds or adequate indemnity a judgment against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and Landlord; nor shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of limit Tenant’s rights to obtain injunctive relief or specific performance or other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to remedy which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held accorded Tenant by the Custodian from time to time law or under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this AgreementLease.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Sublease (Editas Medicine, Inc.), Consent to Sublease (Editas Medicine, Inc.), Sublease (Editas Medicine, Inc.)
Limitation of Liability. (a) Notice is hereby given that this First Amendment has been executed by an officer of each Borrower, in that capacity and not individually. The Custodian undertakes to perform only Banks acknowledge that the obligations specified in of or arising out of this First Amendment and the Credit Agreement. The Issuer, the Owner Trusteeas amended hereby, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor are not binding upon any of its affiliatesthe Borrowers' trustees, directors, officers, directors, employees, agents or agents shall be liableshareholders individually, directly but are binding solely upon the assets and property of the Borrowers. Notwithstanding any other provision of this First Amendment, the Credit Agreement, as amended hereby, or indirectlyany other Loan Document to the contrary, for any damages to the extent that this First Amendment is executed by an Investment Company on behalf of one or expenses more Portfolios of such Investment Company, as a Borrower(s) hereunder, the Banks further acknowledge that the obligations of or arising out of this First Amendment and the services performed under this Agreement other than damages that result from their gross negligenceCredit Agreement, willful misconductas amended hereby, or bad faith. The Custodian are binding upon the assets and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability property of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need Portfolio on whose behalf an Investment Company has executed this instrument and that, with respect to each such Portfolio, such obligations are several but not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) joint. Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall obligations of the Borrowers are several, not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreementjoint. Notwithstanding the foregoing sentence, the Custodian This First Amendment shall be deemed to have notice constitute a separate agreement between each Borrower and the other parties hereto (other than the other Borrowers) as if such Borrower had executed a separate agreement naming only itself and the other parties hereto (other than the other Borrowers) as parties. No Borrower shall be liable for the obligations (whether for principal, interest, fees, expenses or otherwise) of any other Borrower hereunder. In the case of each Borrower that is an Investment Company organized as a Massachusetts business trust or Portfolio of such an Investment Company, the declarations of trust for each such trust refer to the trustees collectively as trustees and not as individuals personally, and the declarations of trust provide that no shareholder, trustee, officer, employee or agent of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed trust shall be subject to claims against or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy obligations of the document or agreement trust to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a partyextent whatsoever, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement trust estate only shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those dutiesliable.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Credit Agreement (Csam Income Fund), Credit Agreement (Indonesia Fund Inc), Credit Agreement (Chile Fund Inc)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Administrator shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Funds in connection with the matters to which this Agreement relates, indirectexcept for a loss resulting from the Administrator’s willful misfeasance, punitivebad faith or negligence in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement. Furthermore, the Administrator shall not be liable for (i) any action taken or omitted to be taken in accordance with or in reliance upon written or oral instructions, advice, data, documents or information (without investigation or verification) received by the Administrator from an officer or representative of the Trust, or special damagesfrom a representative of any of the parties referenced in Section 2, (ii) its reliance on the security valuations without investigation or verification provided by pricing service(s), the Trust’s investment adviser(s) or representatives of the Trust, or (iii) any action taken or omission by a Fund, the Trust, investment adviser(s) or any past or current service provider.
(b) Except as provided in Section 2The Administrator shall maintain adequate and reliable computer and other equipment necessary or appropriate to carry out its obligations under this Agreement. Upon a Fund's reasonable request, the Custodian makes no warranty Administrator shall provide supplemental information concerning the aspects of its disaster recovery and business continuity plan that are relevant to the services provided hereunder. Notwithstanding the foregoing or representation and has any other provision of this Agreement, the Administrator assumes no responsibility hereunder, and shall not be liable, for the completenessany default, validitydamage, sufficiencyloss of data or documents, valueerrors, genuineness, ownership, or transferability of the Mortgage Loans delay or any of the documents in the Mortgage Filesother loss whatsoever caused by events beyond its reasonable control. The Administrator will, however, take all reasonable steps to minimize service interruptions for any period that such interruption continues beyond its control.
(c) The Custodian need not expend Trust agrees to indemnify and hold harmless the Administrator, its employees, agents, officers, directors, affiliates and nominees (collectively, the “Indemnified Parties”) from and against any and all claims, demands, actions and suits, and from and against any and all judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees and other expenses of every nature and character which may be asserted against or risk its own funds incurred by any Indemnified Party or otherwise incur financial liability for which any Indemnified Party may be held liable (a “Claim”) arising out of or in any way relating to (i) the Administrator’s actions or omissions except to the extent a Claim resulted from the Administrator’s willful misfeasance, bad faith, or negligence in the performance of any its duties hereunder or from reckless disregard by it of its obligations and duties under this Agreementhereunder; (ii) the Administrator’s reliance on, implementation of or use of (without investigation or verification) advice, instructions, requests, directions, information, data, records and documents received by the Administrator from any party referenced in Section 2 hereof or other representative of the Trust, or in the exercise of its rights, if the Custodian believes that repayment (iii) any action taken by or omission of the funds Trust, investment adviser(s) or adequate indemnity against the risk any past or liability is not reasonably assured to itcurrent service provider.
(d) Without limiting In no event and under no circumstances shall the generality Administrator, its affiliates or any of the foregoingits or their officers, directors, members, agents or employees be liable to anyone, including, without limitation, the Custodian may rely on and shall be protected in acting in good faith on other party, under any notice theory of tort, contract, strict liability or other communication received by it that it reasonably believes legal or equitable theory for lost profits, exemplary, punitive, special, indirect or consequential damages for any act or failure to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties act under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has regardless of whether such damages were foreseeable and even if advised of the duty to act or refrain from acting, possibility thereof. The indemnity and defense provisions set forth in this Section 5 shall indefinitely survive the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in termination and/or assignment of this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Administration and Fund Accounting Agreement (Oppenheimer SteelPath Master MLP Fund, LLC), Administration and Fund Accounting Agreement (SteelPath MLP Funds Trust), Administration and Fund Accounting Agreement (Alerian MLP Funds Trust)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The IssuerBank, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliatesdirectors, officers, directors, employees, or employees and agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Fund in connection with the performance of its obligations and duties under this Agreement, indirectexcept a loss resulting from willful misfeasance, punitivebad faith or gross negligence in the performance of such obligations and duties, or special by reason of its reckless disregard thereof. The Fund will indemnify the Bank, its directors, officers, employees and agents against and hold it and them harmless from any and all losses, claims, damages, liabilities or expenses (including legal fees and expenses) resulting from any claim, demand, action or suit (i) arising out of the actions or omissions of the Fund, including, but not limited to, inaccurate Daily Sales Reports (unless such inaccurate Daily Sales Report was prepared in a grossly negligent manner by the Bank in its role as Transfer Agent) and misidentification of Exempt Transactions; (ii) arising out of the offer or sale of any securities of the Fund in violation of (x) any requirement under the federal securities laws or regulations, (y) any requirement under the securities laws or regulations of any state (except as a result of any grossly negligent failure by the Bank to perform its duties in relation to compliance with any state securities laws or regulations), or (z) any stop order or other determination or ruling by any federal or state agency with respect to the offer or sale of such securities; or (iii) resulting from the performance of the Bank under this Agreement and not resulting from the willful misfeasance, bad faith or gross negligence of the Bank in the performance of such obligations and duties or by reason of its reckless disregard thereof.
(b) Except as provided in Section 2, The Bank may apply to the Custodian makes no warranty or representation Fund at any time for instructions and has no responsibility may consult counsel for the completeness, validity, sufficiency, value, genuineness, ownershipFund, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability counsel, and with accountants and other experts with respect to any matter arising in the performance of any of connection with its duties under this Agreementhereunder, and the Bank shall not be liable or in the exercise of its rights, if the Custodian believes that repayment of the funds accountable for any action taken or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting omitted by it in good faith on any notice in accordance with such instruction, or with the opinion of such counsel, accountants, or other communication received by it that experts. The Bank shall not be liable for any act or omission taken or not taken in reliance upon any document, certificate or instrument which it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) be signed or presented by the proper person or persons. The Custodian Bank shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed held to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) any change of other documents and agreements executed or delivered in connection withauthority of any officers, employees, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy agents of the document or agreement to Fund until receipt of written notice thereof has been received by the CustodianBank from the Fund.
(gc) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which Neither party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled liable to the same benefits of the indemnificationother for any loss, waiverdamage, and other protective provisions to which the Custodian is entitled under this Agreementliability, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays action, suit, claim, cost or failures in performance resulting expense arising from acts beyond its control. Acts beyond its control include any acts of God, earthquakes, fires, floods, storms or other disturbances of nature, epidemics, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after acts of war, civil war or terrorism, insurrection, nuclear fusion, fission or radiation, the factinterruption, fire, communication line failures, computer viruses, power failures, earthquakes, loss or malfunction of utilities or transportation or the unavailability of energy sources or other disasterssimilar happenings or events that can not be controlled or contained by such party.
(d) Notwithstanding anything to the contrary in this Agreement, in no event shall either party be liable to the other or to any third party for lost profits or lost revenues or any special, consequential, punitive or incidental damages of any kind whatsoever in connection with this Agreement or any activities hereunder.
(e) In order that the indemnification provisions contained in this Article 6 shall apply, upon the assertion of a claim for which a party may be required to indemnify the other, the party seeking the indemnification shall promptly notify the other party of such assertion, and shall keep the other party advised with respect to all developments concerning such claim. The party seeking indemnification shall give the indemnifying party full and complete authority, information and assistance to defend such claim or proceeding, and the indemnifying party shall have, at its option, sole control of the defense of such claim or proceeding and all negotiations for its compromise or settlement. The party seeking indemnification shall in no case confess any claim or make any compromise in any case in which the other party may be required to indemnify it except with the other party's prior written consent, which consent shall not be unreasonably withheld.
Appears in 4 contracts
Samples: Administration Agreement (Tt International Usa Feeder Trust), Administration Agreement (Tt International Usa Feeder Trust), Administration Agreement (Tt International Usa Master Trust)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor 22.1 Notwithstanding any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding(save in respect of any liability for personal injury or death resulting from a party’s negligence), in no event shall either party be liable to the Custodian other, or have any obligation to the other, as the case may be, for any consequential or indirect damages or Losses (including any loss of profits suffered by RB or MSX) however caused and on any theory of liability, regardless of any failure of essential purpose of any remedy available under this Agreement. For the avoidance of doubt, notwithstanding the foregoing limitation of liability, MSX shall have no notice of‘remain liable for performance of its obligations as set out under Clauses 7.9.3.3 and 7.10 and the foregoing limitation of liability shall not be applicable to consequential or indirect damages or Losses (including, without limitation, lost profits incurred by the indemnified party) suffered or incurred by an indemnified party as a direct result of any failure by the indemnifying party to perform its obligations under this Agreement which the indemnified party can demonstrate is due to wilful misconduct by the indemnifying party or any of its employees or Affiliates; provided, however, that the parties acknowledge and agree that any act or omission of the indemnifying party or any of its employees or Affiliates done in good faith shall not be and shall not be bound by, construed to be wilful misconduct of the indemnifying party or any other document of its employees or agreement executed or delivered Affiliates. The indemnified party shall inform the indemnifying party in connection with, or intended writing of its intent to control seek damages pursuant to the foregoing sentence and provide the indemnifying party with reasonable opportunity to remediate any part of, the transactions anticipated by or referred to such Loss; provided that nothing in this Agreement unless sentence shall relieve the Custodian is a signatory indemnifying party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of from performing its obligations in accordance with the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Commercial Exploitation Agreement (Indivior PLC), Commercial Exploitation Agreement (Indivior PLC), Commercial Exploitation Agreement (Aquestive Therapeutics, Inc.)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Investment Adviser shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Agreement relates, indirectexcept a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services or a loss resulting from willful misfeasance, punitive, bad faith or special damages.
(b) Except as provided in Section 2, gross negligence on the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability part of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability Investment Adviser in the performance of any its duties or from reckless disregard by it of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on obligations and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through ("disabling conduct"). The Portfolio will indemnify the Investment Adviser against and hold it harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) resulting from any claim, demand, action or suit not resulting from disabling conduct by the Investment Adviser. Indemnification shall be made only following: (i) a final decision on the merits by a court or other body before whom the proceeding was brought that the Investment Adviser was not liable by reason of its agentsdisabling conduct or (ii) in the absence of such a decision, attorneys-in-facta reasonable determination, or affiliates. Any agent, attorney-in-fact, or affiliate based upon a review of the Custodian facts, that the Investment Adviser was not liable by reason of disabling conduct by (and any affiliate's a) the vote of a majority of a quorum of directors of the Fund who are neither "interested persons" of the Fund nor parties to the proceeding ("disinterested non-party directors, officers, agents, and employees") that performs duties or (b) an independent legal counsel in connection with this Agreement a written opinion. The Investment Adviser shall be entitled to advances from the same benefits Portfolio for payment of the indemnification, waiver, and other protective provisions reasonable expenses incurred by it in connection with the matter as to which it is seeking indemnification in the Custodian manner and to the fullest extent permissible under the Maryland General Corporation Law. The Investment Adviser shall provide to the Portfolio a written affirmation of its good faith belief that the standard of conduct necessary for indemnification by the Portfolio has been met and a written undertaking to repay any such advance if it should ultimately be determined that the standard of conduct has not been met. In addition, at least one of the following additional conditions shall be met: (a) the Investment Adviser shall provide a security in form and amount acceptable to the Portfolio for its undertaking; (b) the Portfolio is insured against losses arising by reason of the advance; or (c) a majority of a quorum of disinterested non-party directors, or independent legal counsel, in a written opinion, shall have determined, based upon a review of facts readily available to the Portfolio at the time the advance is proposed to be made, that there is reason to believe that the Investment Adviser will ultimately be found to be entitled to indemnification. Any amounts payable by the Portfolio under this Agreement, but Section shall be satisfied only against the Custodian shall remain responsible for assets of the performance Portfolio and not against the assets of those duties.
(j) any other investment portfolio of the Fund. The Custodian limitations on liability and indemnification provisions of this Section 12 shall not be responsible applicable to any losses, claims, damages, liabilities or expenses arising from the Investment Adviser's rights to the Portfolio's name. The Investment Adviser shall indemnify and hold harmless the Fund and the Portfolio for delays any claims arising from the use of the terms "Weiss, Peck & Greer" or failures "Robeco" or "WPG" in performance resulting from acts beyond its control. Acts beyond its control include acts the name of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disastersPortxxxxx.
Appears in 4 contracts
Samples: Investment Advisory Agreement (RBB Fund Inc), Investment Advisory Agreement (RBB Fund Inc), Investment Advisory Agreement (RBB Fund Inc)
Limitation of Liability. (a) The Custodian undertakes None of the Sub-Advisors guarantee the future performance of any Account or any specific level of performance, the success of any investment decision or strategy that any Sub-Advisor may use, or the success of any Sub-Advisor’s overall management of any Account. None of the Sub-Advisors provide any express or implied warranty as to perform only the obligations specified in this Agreementperformance or profitability of the Account nor any part thereof nor that any specific investment objectives will be successfully met. Investment decisions made by any Sub-Advisor on behalf of any Account managed by such Sub-Advisor are subject to various market, currency, economic, political and business risks, and those investment decisions will not always be profitable. The Issuer, the Owner Trustee, Master Servicer, Sub-Advisors shall be severally and Indenture Trustee acknowledge that no implied not jointly liable for their respective obligations exist and liabilities under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) To the maximum extent permitted by law, none of the Sub-Advisors, any affiliate of the Sub-Advisors or any member, partner, shareholder, principal, director, officer, employee or agent of the Sub-Advisors or any such affiliate (each, a “Sub-Advisor Party”) shall be liable for any loss, liability or damage (including attorney’s fees and other related expenses) (“Losses”) resulting from: (i) any act or failure to act by the Custodian, any administrator or any broker or dealer; or (ii) any act or omission by any Sub-Advisor or any permitted Sub-Advisor in connection with the performance of its services under this Agreement (including any Addendum hereto), except in cases of willful misconduct, gross negligence, bad faith or reckless disregard by any Sub-Advisor or any permitted Sub-Advisor of its obligations and duties under this Agreement (including any Addendum hereto). Except as provided in Section 2expressly set forth above, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability none of the Mortgage Loans Sub-Advisors shall have liability for any Losses suffered and shall be fully indemnified by the Investment Manager for any Losses it may suffer, as the result of any actions it takes or does not take based on instructions or permissions received from any of the documents authorized persons of the Investment Manager reasonably believed by such Sub-Advisor to be genuine. Each Sub-Advisor may consult with legal counsel at its cost and expense (without limiting the reimbursement provisions set forth in this Agreement, including those set forth in Section 3(b)) concerning any question which may arise with reference to this Agreement or its duties hereunder, and the Mortgage Filesopinion of such counsel shall be full and complete protection with respect to, and none of the Sub-Advisors shall have liability for any Losses suffered as a result of, any action taken or suffered by any Sub-Advisor hereunder in good faith and in accordance with the opinion of such counsel. Under no circumstances shall any Sub-Advisor be liable for any special, incidental, exemplary, consequential, punitive, lost profits or indirect damages.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties federal and state securities laws may impose liabilities under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely certain circumstances on and shall be protected in acting persons who act in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable forfaith, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to therefore nothing in this Agreement unless the Custodian is a signatory party to that document will waive or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control limit any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree rights that the Custodian shall not be the party required to take the action Investment Manager or refrain from acting. In no event shall the Custodian any Company may have any responsibility to ascertain or take action except as expressly provided in this Agreementunder those laws.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Master Sub Advisory Agreement (Athene Annuity & Life Co), Master Sub Advisory Agreement (Athene Holding LTD), Master Sub Advisory Agreement (Athene Holding LTD)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Investment Adviser shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialloss suffered by the Trust in connection with the matters to which this Agreement relates, indirectexcept a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services or a loss resulting from willful misfeasance, punitive, bad faith or special damages.
(b) Except as provided in Section 2, gross negligence on the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability part of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability Investment Adviser in the performance of any its duties or from reckless disregard by it of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on obligations and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through (“disabling conduct”). The Fund will indemnify the Investment Adviser against and hold it harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) resulting from any claim, demand, action or suit not resulting from disabling conduct by the Investment Adviser. Indemnification shall be made only following: (i) a final decision on the merits by a court or other body before whom the proceeding was brought that the Investment Adviser was not liable by reason of its agentsdisabling conduct or (ii) in the absence of such a decision, attorneys-in-facta reasonable determination, or affiliates. Any agent, attorney-in-fact, or affiliate based upon a review of the Custodian facts, that the Investment Adviser was not liable by reason of disabling conduct by (and any affiliate's a) the vote of a majority of a quorum of directors of the Trust who are neither “interested persons” of the Trust nor parties to the proceeding (“disinterested non-party directors, officers, agents, and employees”) that performs duties or (b) an independent legal counsel in connection with this Agreement a written opinion. The Investment Adviser shall be entitled to advances from the same benefits Fund for payment of the indemnification, waiver, and other protective provisions reasonable expenses incurred by the Investment Adviser in connection with the matter as to which it is seeking indemnification in the Custodian manner and to the fullest extent permissible under the Delaware Statutory Trust Act. The Investment Adviser shall provide to the Fund a written affirmation of its good faith belief that the standard of conduct necessary for indemnification by the Fund has been met and a written undertaking to repay any such advance if it should ultimately be determined that the standard of conduct has not been met. In addition, at least one of the following additional conditions shall be met: (a) the Investment Adviser shall provide a security in form and amount acceptable to the Fund for its undertaking; (b) the Fund is insured against losses arising by reason of the advance; or (c) a majority of a quorum of disinterested non-party directors, or independent legal counsel, in a written opinion, shall have determined, based upon a review of facts readily available to the Fund at the time the advance is proposed to be made, that there is reason to believe that the Investment Adviser will ultimately be found to be entitled to indemnification. Any amounts payable by the Fund under this Agreement, but Section shall be satisfied only against the Custodian shall remain responsible for assets of the performance Fund and not against the assets of those duties.
(j) any other investment portfolio of the Trust. The Custodian limitations on liability and indemnification provisions of this Section shall not be responsible applicable to any losses, claims, damages, liabilities or expenses arising from the Investment Adviser’s rights to the Fund’s name. The Investment Adviser shall indemnify and hold harmless the Trust and the Fund for delays or failures any claims arising from the use of the terms “Equinox” in performance resulting from acts beyond its control. Acts beyond its control include acts the name of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disastersFund.
Appears in 4 contracts
Samples: Investment Advisory Agreement (Equinox Funds Trust), Investment Advisory Agreement (Equinox Funds Trust), Investment Advisory Agreement (Equinox Funds Trust)
Limitation of Liability. (a) The Custodian undertakes to perform only GEAM will exercise its best judgment in rendering the obligations specified services described in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge except that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents GEAM will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Fund in connection with the matters to which this Agreement relates, indirectother than a loss resulting from willful misfeasance, punitivebad faith or gross negligence on the part of GEAM in the performance of its duties or from reckless disregard by it of its obligations and duties under this Agreement. Any person, even though also an officer, director, employee or agent of GEAM, who may be or become an officer, Trustee, employee or agent of the Trust, will be deemed, when rendering services to the Trust or acting on any business of the Trust, to be rendering services to, or special damagesacting solely for, the Trust and not as an officer, director, employee or agent, or one under the control or direction of, GEAM even though paid by GEAM.
(b) Except The Trust and GEAM agree that the obligations of the Trust under this Agreement will not be binding upon any of the Trustees, shareholders, nominees, officers, employees or agents, whether past, present or future, of the Trust, individually, but are binding only upon the assets and property of the Fund, as provided in Section 2, the Custodian makes no warranty or representation Declaration of Trust. The execution and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision delivery of this Agreement to have been authorized by the contrary notwithstanding, Trustees of the Custodian shall have no notice ofTrust, and shall not be bound bysigned by an authorized officer of the Trust, any other document or agreement executed or delivered in connection withacting as such, or intended to control any part of, and neither the transactions anticipated authorization by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding Trustees nor the foregoing sentence, execution and delivery by the Custodian shall officer will be deemed to have notice been made by any of them individually or to impose any liability on any of them personally, but will bind only the trust property of the terms (including definitions not otherwise set forth Trust as provided in full in this Agreement) the Declaration of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy Trust. No series of the document or agreement to Trust, including the CustodianFund, will be liable for any claims against any other series.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Investment Advisory and Administration Agreement (Ge Funds), Investment Advisory and Administration Agreement (Ge Funds), Investment Advisory and Administration Agreement (Ge Funds)
Limitation of Liability. (a) The Custodian undertakes to perform only None of the obligations specified in this Agreement. The IssuerOwner Participant, the Owner Lessor, the Trust Company, the Lessor Manager, the Indenture Trustee, Master Servicerthe Lease Indenture Company, the Pass Through Trustees, the Pass Through Company or the Certificateholders shall have any obligation or duty to the Facility Lessee or to others with respect to the transactions contemplated hereby, except those obligations or duties expressly set forth in this Agreement and the other Operative Documents to which such Person is a party, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out none of the services performed under this Agreement other than damages that result from their gross negligenceOwner Participant, willful misconductthe Owner Lessor, the Indenture Trustee, the Lease Indenture Company, the Pass Through Trustees, the Pass Through Company or bad faith. The Custodian and its officers, directors, employees, and agents will not the Certificateholders shall be liable for performance by any consequential, indirect, punitive, other party hereto of such other party's obligations or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability duties hereunder. Without limitation of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, under no circumstances whatsoever shall the Custodian may rely Owner Participant be liable to the Facility Lessee for any action or inaction on and the part of the Owner Lessor in connection with the transactions contemplated herein, whether or not such action or inaction is caused by willful misconduct or gross negligence of the Owner Lessor, unless such action or inaction is at the written direction of the Owner Participant. Neither the Facility Lessee nor any other Calpine Party shall be protected in acting in good faith on have any notice obligation or other communication received by it that it reasonably believes duty to be genuine and duly authorized the Owner Participant, the Owner Lessor, the Indenture Trustee, the Lease Indenture Company, the Pass Through Trustees, the Pass Through Company, the Certificateholders or to others with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by contemplated hereby, except those obligations or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations duties expressly set forth in this Agreement and the other Operative Documents, and neither the Facility Lessee nor any other Calpine Party (except Calpine to the extent set forth in the Calpine Guaranty) shall be liable for performance by any other party hereto of such other party's obligations or in a written amendment to this Agreement executed by duties hereunder. The Lease Indenture Company and the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as Pass Through Company are entering into the Operative Documents to which it is a party has solely as trustees under the duty to act or refrain from actingCollateral Trust Indenture and the Pass Through Trust Agreements, the parties agree that the Custodian shall respectively, and not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action in their individual capacities, except as expressly provided herein or therein, and in this Agreement.
(h) Nothing no case whatsoever shall the Lease Indenture Company and the Pass Through Company be personally liable for, or for any loss in this Agreement respect of, any of the statements, representations, warranties, agreements or obligations of the Owner Lessor hereunder or under any other Operative Document, as to all of which the other parties hereto agree to look solely to the Indenture Estate and the Lessor Estate, respectively; provided, however, that the Lease Indenture Company and the Pass Through Trust Company shall impose on be liable hereunder for their own negligence or willful misconduct or for a breach of their representations, warranties and covenants made in their individual capacity under any Operative Document. The right of the Custodian Indenture Trustee or the Pass Through Trustees to perform any duty to qualify to do business discretionary act enumerated herein or in any jurisdictionother Operative Document (including, without limitation, the right to consent to any action which requires their consent and the right to waive any provision of, or consent to any change or amendment to, any of the Operative Documents) shall not be construed as a duty, and neither the Indenture Trustee nor the Pass Through Trustees shall be liable or answerable for other than (i) any jurisdiction where any Mortgage File is its negligence or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties willful misconduct in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those dutiessuch acts. In connection with any such discretionary acts, the Indenture Trustee may in its sole discretion (but shall not, except as otherwise provided herein or in the Collateral Trust Indenture or as otherwise required by Applicable Law, have any obligation to) request the approval or instruction of the Pass Through Trustees as the holder of the Lessor Notes, and the Pass Through Trustees may in its sole discretion (but shall not, except as otherwise provided in the Operative Documents or as otherwise required by Applicable Law, have any obligation to) request the approval of the Certificateholders. The Owner Participant will give the Facility Lessee at least 15 days' prior notice of any proposed amendment or supplement to the LLC Agreement (other than an amendment solely effecting a transfer of the Owner Participant's interest in the Lessor Estate) and deliver true, complete and fully executed copies to the Facility Lessee of any amendment or supplement to the LLC Agreement. No amendment or supplement to the LLC Agreement that would reasonably be expected to materially adversely affect the interests of the Facility Lessee or the Indenture Trustee shall become effective without the written consent of the Indenture Trustee and the Facility Lessee.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Participation Agreement (Calpine Corp), Participation Agreement (Calpine Corp), Participation Agreement (Calpine Corp)
Limitation of Liability. (a) The Custodian undertakes Notwithstanding anything contained herein to perform only the contrary, this Agreement has been executed and delivered by Citibank N.A., not in its individual capacity but solely as Owner Trustee, and in no event shall it have any liability for the representations, warranties, covenants, agreements or other obligations specified of the Issuer hereunder or under the Notes or any of the other Transaction Documents or in any of the certificates, notices or agreements delivered pursuant thereto, as to all of which recourse shall be had solely to the assets of the Issuer. Under no circumstances shall the Owner Trustee be personally liable for the payment of any indebtedness or expense of the Issuer or be liable for the breach or failure of any obligations, representation, warranty or covenant made or undertaken by the Issuer under the Transaction Documents. For the purposes of this Agreement. The Issuer, in the performance of its duties or obligations hereunder, the Owner Trustee, Master ServicerTrustee shall be subject to, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither entitled to the Custodian nor any benefits of, the terms and provisions of its affiliatesArticles VI, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out VII and VIII of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damagesTrust Agreement.
(b) Except Notwithstanding anything contained herein to the contrary, this Agreement has been executed and delivered by Deutsche Bank Trust Company Americas, not in its individual capacity but solely as provided Indenture Trustee, and in Section 2, the Custodian makes no warranty or representation and has no responsibility event shall it have any liability for the completenessrepresentations, validitywarranties, sufficiencycovenants, value, genuineness, ownership, agreements or transferability other obligations of the Mortgage Loans Issuer under the Notes or any of the documents other Transaction Documents or in any of the Mortgage Files.
(c) The Custodian need not expend certificates, notices or risk its own funds agreements delivered pursuant thereto, as to all of which recourse shall be had solely to the assets of the Issuer. Under no circumstances shall the Indenture Trustee be personally liable for the payment of any indebtedness or otherwise incur financial liability expense of the Issuer or be liable for the breach or failure of any obligations, representation, warranty or covenant made or undertaken by the Issuer under the Transaction Documents. For the purposes of this Agreement, in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoingobligations hereunder, the Custodian may rely on and Indenture Trustee shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable forsubject to, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement entitled to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part benefits of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice terms and provisions of Article VI of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the CustodianIndenture.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Sale and Servicing Agreement (Volkswagen Auto Loan Enhanced Trust 2011-1), Sale and Servicing Agreement (Volkswagen Auto Loan Enhanced Trust 2011-1), Sale and Servicing Agreement (Volkswagen Auto Loan Enhanced Trust 2010-1)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Sub-Adviser shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialloss suffered by the Trust in connection with the matters to which this Agreement relates, indirectexcept a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services or a loss resulting from willful misfeasance, punitive, bad faith or special damages.
(b) Except as provided in Section 2, gross negligence on the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability part of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability Sub-Adviser in the performance of any its duties or from reckless disregard by it of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on obligations and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through (“disabling conduct”). The Fund will indemnify the Sub-Adviser against and hold it harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) resulting from any claim, demand, action or suit not resulting from disabling conduct by the Sub-Adviser. Indemnification shall be made only following: (i) a final decision on the merits by a court or other body before whom the proceeding was brought that the Sub-Adviser was not liable by reason of its agentsdisabling conduct or (ii) in the absence of such a decision, attorneys-in-facta reasonable determination, or affiliates. Any agent, attorney-in-fact, or affiliate based upon a review of the Custodian facts, that the Sub-Adviser was not liable by reason of disabling conduct by (and any affiliate's a) the vote of a majority of a quorum of directors of the Trust who are neither “interested persons” of the Trust nor parties to the proceeding (“disinterested non-party directors, officers, agents, and employees”) that performs duties or (b) an independent legal counsel in connection with this Agreement a written opinion. The Sub- Adviser shall be entitled to advances from the same benefits Fund for payment of the indemnification, waiver, and other protective provisions reasonable expenses incurred by it in connection with the matter as to which it is seeking indemnification in the Custodian manner and to the fullest extent permissible under the Delaware Statutory Trust Act. The Sub-Adviser shall provide to the Fund a written affirmation of its good faith belief that the standard of conduct necessary for indemnification by the Fund has been met and a written undertaking to repay any such advance if it should ultimately be determined that the standard of conduct has not been met. In addition, at least one of the following additional conditions shall be met: (a) the Sub-Adviser shall provide a security in form and amount acceptable to the Fund for its undertaking; (b) the Fund is insured against losses arising by reason of the advance; or (c) a majority of a quorum of disinterested non-party directors, or independent legal counsel, in a written opinion, shall have determined, based upon a review of facts readily available to the Fund at the time the advance is proposed to be made, that there is reason to believe that the Sub-Adviser will ultimately be found to be entitled to indemnification. Any amounts payable by the Fund under this Agreement, but Section shall be satisfied only against the Custodian shall remain responsible for assets of the performance Fund and not against the assets of those dutiesany other investment portfolio of the Trust.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Sub Advisory Agreement (FundVantage Trust), Sub Advisory Agreement (FundVantage Trust), Sub Advisory Agreement (FundVantage Trust)
Limitation of Liability. (a) The Custodian undertakes Agreement and Declaration of Trust, dated January 9, 1998, as amended from time to perform only time, establishing the Investment Company, which is hereby referred to and a copy of which is on file with the Secretary of State of Delaware, provides that the name Sage Life Investment Trust means the Trustees from time to time serving (as Trustees but not personally) under said Declaration of Trust. It is expressly acknowledged and agreed that the obligations specified in this Agreement. The Issuer, of the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor Investment Company shall not be binding upon any of its affiliatesthe shareholders, trustees, officers, directors, employees, employees or agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under Investment Company, personally, but shall bind only the trust property of the Investment Company, as provided in its Declaration of Trust. The execution and delivery of this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian have been authorized by the Trustees of the Investment Company and its officers, directors, employees, and agents will such authorization by such Trustees shall not be liable for deemed to have been made by any consequential, indirect, punitive, of them individually or special damagesto impose any liability on any of them personally.
(b) Except as provided In the absence of (1) willful misfeasance, bad faith or gross negligence on the part of the Sub-Adviser in Section performance of its obligations and duties hereunder, (2) reckless disregard by the Sub-Adviser of its obligations and duties hereunder, or (3) a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services (in which case, any award of damages shall be limited to the period and the amount set forth in section 36(b)(3) of the 1940 Act), the Custodian makes no warranty Sub-Adviser shall not be subject to any liability whatsoever to the Manager or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownershipInvestment Company, or transferability any shareholder of the Mortgage Loans Investment Company, for any error of judgement, mistake of law or any other act or omission in the course of, or connected with, rendering services hereunder including, without limitation, for any losses that may be sustained in connection with the purchase, holding, redemption or sale of any security on behalf of the documents in the Mortgage FilesInvestment Company.
(c) The Custodian need not expend In the absence of (1) willful misfeasance, bad faith or risk its own funds or otherwise incur financial liability gross negligence on the part of the Manager in the performance of any its obligations and duties hereunder, (2) reckless disregard by the Manager of its obligations and duties under this Agreementhereunder, or in the exercise (3) a loss resulting from a breach of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized fiduciary duty with respect to all matters pertaining the receipt of compensation for services (in which case, any award of damages shall be limited to this Agreement the period and its duties under this Agreement.
(ethe amount set forth in section 36(b)(3) The Custodian of the 1940 Act), the Manager shall not be responsible subject to any liability whatsoever to the Sub-Adviser or liable for, and makes no representation or warranty with respect to, the validity, adequacyInvestment Company, or perfection any shareholder of the Investment Company, for any lien on error of judgement, mistake of law or security interest any other act or omission in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice course of, and shall not be bound by, any other document or agreement executed or delivered in connection connected with, or intended to control rendering services hereunder including, without limitation, for any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to losses that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties sustained in connection with this Agreement shall be entitled to the same benefits purchase, holding, redemption or sale of any security on behalf of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those dutiesInvestment Company.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Sub Advisory Agreement (Sage Life Investment Trust), Sub Advisory Agreement (Sage Life Investment Trust), Sub Advisory Agreement (Sage Life Investment Trust)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, In consideration for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except TCC acting as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from actingEscrow Agent, the parties agree that TCC shall in no case or event be liable for the Custodian failure of any of the conditions of this escrow or damage caused by the exercise of its discretion in any particular matter, or for any other reason, except gross negligence or willful misconduct with reference to the escrow, and TCC shall not be the party required to take the action liable or refrain from acting. In no event shall the Custodian have any responsibility responsible for its failure to ascertain the terms or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian conditions, or to comply with, any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian provisions of any agreement, contract or other document filed herewith or referred to perform its duties under this Agreement.
(i) The Custodian may execute herein, nor shall TCC be liable or responsible for forgeries or false representation. It is further agreed that if any of its duties under this Agreement through controversy arises between the parties hereto or with any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection third party with this Agreement shall be entitled respect to the same benefits subject of the indemnificationthis escrow, waiverits terms or conditions, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian TCC shall not be responsible required to determine the same or take any action in connection therewith, but TCC may await the settlement of any such controversy by final appropriate legal proceedings or otherwise as TCC may require, notwithstanding anything in the following instructions to the contrary, and in such event TCC shall not be liable for delays interest or failures in performance resulting from acts beyond its controldamage. Acts beyond its control include acts TCC shall not be held to take notice of God, strikes, lockouts, riots, acts any terms of war any agreement or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakesoffering, or other disastersany rights stated with respect to the deposited funds unless expressly stated in writing herein. In performing the duties hereunder, TCC, as escrow agent, shall not incur any such liability with respect to any action taken or omitted in good faith in reliance upon the written advise provided for herein and the truth and accuracy of any information contained herein, which TCC, as escrow agent, in good faith accept and act upon.
Appears in 4 contracts
Samples: Escrow Agreement (Commercial Evaluations Inc), Escrow Agreement (Commercial Evaluations Inc), Escrow Agreement (Commercial Evaluations Inc)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents Investment Adviser shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Company in connection with the matters to which this Agreement relates, indirectexcept a loss resulting from a breach of fiduciary duty with respect to the receipt of compensation for services or a loss resulting from willful misfeasance, punitive, bad faith or special damages.
(b) Except as provided in Section 2, gross negligence on the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability part of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability Investment Adviser in the performance of any its duties or from reckless disregard by it of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on obligations and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through (“disabling conduct”). The Company will indemnify the Investment Adviser against and hold it harmless from any and all losses, claims, damages, liabilities or expenses (including reasonable counsel fees and expenses) resulting from any claim, demand, action or suit not resulting from disabling conduct by the Investment Adviser. Indemnification shall be made only following: (i) a final decision on the merits by a court or other body before whom the proceeding was brought that the Investment Adviser was not liable by reason of its agentsdisabling conduct or (ii) in the absence of such a decision, attorneys-in-facta reasonable determination, or affiliates. Any agent, attorney-in-fact, or affiliate based upon a review of the Custodian facts, that the Investment Adviser was not liable by reason of disabling conduct by (and any affiliate's a) the vote of a majority of a quorum of directors of the Fund who are neither “interested persons” of the Company nor parties to the proceeding (“disinterested non-party directors, officers, agents, and employees”) that performs duties or (b) an independent legal counsel in connection with this Agreement a written opinion. The Investment Adviser shall be entitled to advances from the same benefits Company for payment of the indemnification, waiver, and other protective provisions reasonable expenses incurred by it in connection with the matter as to which it is seeking indemnification in the Custodian manner and to the fullest extent permissible under the applicable law. The Investment Adviser shall provide to the Company a written affirmation of its good faith belief that the standard of conduct necessary for indemnification by the Company has been met and a written undertaking to repay any such advance if it should ultimately be determined that the standard of conduct has not been met. In addition, at least one of the following additional conditions shall be met: (a) the Investment Adviser shall provide a security in form and amount acceptable to the Company for its undertaking; (b) the Company is insured against losses arising by reason of the advance; or (c) a majority of a quorum of disinterested non-party directors, or independent legal counsel, in a written opinion, shall have determined, based upon a review of facts readily available to the Company at the time the advance is proposed to be made, that there is reason to believe that the Investment Adviser will ultimately be found to be entitled under to indemnification. The limitations on liability and indemnification provisions of this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian Section 12 shall not be responsible applicable to any losses, claims, damages, liabilities or expenses arising from the Investment Adviser’s rights to the Company’s name. The Investment Adviser shall indemnify and hold harmless the Company for delays any claims arising from the use of the terms “Abbey Capital” or failures “ACL” in performance resulting from acts beyond its control. Acts beyond its control include acts the name of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disastersCompany.
Appears in 4 contracts
Samples: Investment Advisory Agreement (RBB Fund, Inc.), Investment Advisory Agreement (RBB Fund, Inc.), Investment Advisory Agreement (RBB Fund, Inc.)
Limitation of Liability. (a) The Custodian undertakes to perform only None of the obligations specified in this Agreement. The IssuerOwner Participant, the Owner Lessor, the Owner Trustee, Master Servicerthe Trust Company, the Lease Indenture Company, the Lease Indenture Trustee, the Pass Through Trustee or the Pass Through Company shall have any obligation or duty to Midwest, NRG or to others with respect to the transactions contemplated hereby, except those obligations or duties expressly set forth in this Agreement and the Operative Documents, and neither the Owner Lessor, the Owner Participant, the Owner Trustee, the Trust Company, the Lease Indenture Company, the Lease Indenture Trustee, the Pass Through Trustee acknowledge that or the Pass Through Company shall be liable for performance by any other party hereto of such other party’s obligations or duties hereunder. Without limitation of the generality of the foregoing, under no implied obligations exist circumstances whatsoever shall the Owner Participant be liable to Midwest, NRG, the Lease Indenture Trustee, the Pass Through Trustee or the Pass Through Company for any action or inaction on the part of the Owner Lessor or the Owner Trustee in connection with the transactions contemplated herein, whether or not such action or inaction is caused by willful misconduct or gross negligence of the Owner Lessor, unless such action or inaction is at the written direction of the Owner Participant.
(b) The Trust Company is executing the Operative Documents to which it is a party solely as trustee under this Agreement. Neither the Custodian nor Trust Agreement and not in its individual capacity, except as expressly provided herein or therein, and in no case whatsoever shall the Trust Company be personally liable for, or for any loss in respect of, any of the statements, representations, warranties, agreements or obligations of the Owner Lessor or the Owner Trustee hereunder or under any other Operative Document, as to all of which the other parties hereto agree to look solely to the Trust Estate; provided, however, that the Trust Company shall be liable hereunder for its affiliatesown gross negligence or willful misconduct or for a breach of its representations, officerswarranties and covenants made in its individual capacity.
(c) The Lease Indenture Company and the Pass Through Company are each entering into the Operative Documents to which they are parties solely as trustees under the Lease Indenture and the Pass Through Trust Agreement, directorsrespectively, employeesand not in their individual capacities, except as expressly provided herein or therein, and in no case whatsoever shall the Lease Indenture Company or the Pass Through Company be personally liable for, or agents for any loss in respect of, any of the statements, representations, warranties, agreements or obligations of the Owner Lessor hereunder or under any other Operative Document, as to all of which the other parties hereto agree to look solely to the Trust Estate and the Indenture Estate; provided, however, that such party shall be liable, directly or indirectly, liable hereunder for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their its own gross negligence, willful misconduct, bad faith or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any a breach of its duties under this Agreementrepresentations, or warranties and covenants made in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to itindividual capacity.
(d) Without limiting the generality The right of the foregoingLease Indenture Company or the Pass Through Company to perform any discretionary act enumerated herein or in any other Operative Document (including, without limitation, the Custodian may rely on right to consent to any action which requires its consent and the right to waive any provision of, or consent to any change or amendment to, any of the Operative Documents) shall not be construed as a duty, and neither the Lease Indenture Company nor the Pass Through Company shall be protected accountable or liable for other than its gross negligence, willful misconduct or bad faith in acting the performance or non-performance of such acts. In connection with any such discretionary acts, the Lease Indenture Trustee may in good faith on its own judgment (but shall not, except as otherwise provided in the Lease Indenture or as otherwise required by Requirement of Law, have any notice obligation to) request in writing the approval of the Pass Through Trustee as holders of Lessor Notes and each Pass Through Trustee may in its sole discretion (but shall not, except as otherwise provided for in the Operative Documents or other communication received as otherwise required by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this AgreementRequirement of Law, have any obligation to) request the approval of the holders of the Certificates.
(e) The Custodian shall not be responsible Owner Participant will give Midwest and NRG at least fifteen (15) days’ prior notice of any proposed amendment or liable for, and makes no representation supplement to the Trust Agreement (other than amendments solely effecting a transfer of the Owner Participant’s interest in the Trust Estate or warranty with respect toto administrative matters) and deliver true, the validity, adequacy, or perfection complete and fully executed copies to Midwest and NRG of any lien on amendment or security interest in any Mortgage Loansupplement to the Trust Agreement. No amendment or supplement to the Trust Agreement that could materially adversely affect the interests of the Lease Indenture Trustee or the Pass Through Trustee shall become effective without the prior written consent of the Lease Indenture Trustee or the Pass Through Trustee, as applicable.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Participation Agreement shall impose on modifies the Custodian any duty to qualify to do business release or exculpation provisions in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this AgreementChapter 11 Plan.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Participation Agreement (Midwest Generation LLC), Participation Agreement (Midwest Generation LLC), Participation Agreement (Midwest Generation LLC)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The IssuerIBT, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliatesdirectors, officers, directors, employees, or employees and agents shall be liable, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequentialerror of judgment or mistake of law or for any loss suffered by the Fund in connection with the performance of its obligations and duties under this Agreement, indirectexcept a loss resulting from willful misfeasance, punitivebad faith or negligence in the performance of such obligations and duties, or special by reason of its reckless disregard thereof. The Fund will indemnify IBT, its directors, officers, employees and agents against and hold it and them harmless from any and all losses, claims, damages, liabilities or expenses (including legal fees and expenses) resulting from any claim, demand, action or suit (i) arising out of the actions or omissions of the Fund; (ii) arising out of the offer or sale of any securities of the Fund in violation of (x) any requirement under the federal securities laws or regulations, (y) any requirement under the securities laws or regulations of any state, or (z) any stop order or other determination or ruling by any federal or state agency with respect to the offer or sale of such securities; or (iii) not resulting from the willful misfeasance, bad faith or negligence of IBT in the performance of such obligations and duties or by reason of its reckless disregard thereof.
(b) Except as provided in Section 2, IBT may apply to the Custodian makes no warranty or representation Fund at any time for instructions and has no responsibility may consult counsel for the completeness, validity, sufficiency, value, genuineness, ownershipFund, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability counsel, and with accountants and other experts with respect to any matter arising in the performance of any of connection with its duties under this Agreementhereunder, and IBT shall not be liable or in the exercise of its rights, if the Custodian believes that repayment of the funds accountable for any action taken or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting omitted by it in good faith on any notice in accordance with such instruction, or with the opinion of such counsel, accountants, or other communication received by it that experts. IBT shall not be liable for any act or omission taken or not taken in reliance upon any document, certificate or instrument which it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian be signed or presented by the proper person or persons. IBT shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed held to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) any change of other documents and agreements executed or delivered in connection withauthority of any officers, employees, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy agents of the document or agreement to Fund until receipt of written notice thereof has been received by IBT from the CustodianFund.
(gc) The Custodian shall have only In the event IBT is unable to perform, or is delayed in performing, its obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by under the parties to this Agreement or their successors and assigns. If any provision terms of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership because of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockoutslegal constraint, riotsgovernment actions, acts war, emergency conditions, interruption of war electrical power or terrorismother utilities, epidemicsequipment or transmission failure or damage reasonably beyond its control or other causes reasonably beyond its control, nationalizationIBT shall not be liable to the Fund for any damages resulting from such failure to perform, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakesdelay in performance, or other disastersotherwise from such causes.
(d) In no event shall IBT be liable for special, incidental or consequential damages, even if advised of the possibility of such damages.
Appears in 4 contracts
Samples: Administration Agreement (Deutsche Portfolios), Administration Agreement (Deutsche Portfolios), Administration Agreement (Deutsche Portfolios)
Limitation of Liability. (a) The Custodian undertakes Borrower assumes all risks of the acts or omissions of any beneficiary or transferee of any Letter of Credit with respect to perform only its use of such Letter of Credit absent the obligations specified in this Agreement. The Issuerbad faith, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreementgross negligence or willful misconduct of Issuing Lender. Neither the Custodian Issuing Lender, Agent, any Lender nor any of its affiliates, their respective officers, directors, employees, employees or agents shall be liableliable or responsible for, directly or indirectly, for any damages or expenses arising out nor shall Borrower's obligations hereunder in respect of the services performed under this Agreement other than damages that such Letters of Credit be impaired as a result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in following absent the Mortgage Files.bad faith, gross negligence or willful misconduct of Issuing Lender:
(ci) The Custodian need not expend any lack of validity or risk its own funds or otherwise incur financial liability in the performance enforceability of any Letter of its duties Credit or any other agreement or instrument relating thereto (such Letter of Credit and any other agreement or instrument relating thereto being, collectively, the "Letter of Credit Documents");
(ii) the use that may be made of any Letter of Credit or any acts or omissions of any beneficiary or transferee in connection therewith;
(iii) any statement or any other document presented under this Agreementa Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect;
(iv) the exercise existence of its rightsany claim, if setoff, defense or other right that Borrower may have at any time against any beneficiary or any transferee of a Letter of Credit (or any Persons for whom any such beneficiary or any such transferee may be acting), Issuing Lender or any other Person, whether in connection with the Custodian believes that repayment transactions contemplated by the Letter of the funds Credit Documents or any unrelated transaction;
(v) failure of any documents to bear any reference or adequate indemnity against reference to the risk or liability is not reasonably assured to it.Letter of Credit; or
(dvi) Without limiting the generality any other circumstances whatsoever in making or failing to make payment under any Letter of Credit. In furtherance and not in limitation of the foregoing, the Custodian Issuing Lender may rely accept documents that appear on and shall their face to be protected in acting in good faith on order, without responsibility for further investigation, regardless of any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement information to the contrary notwithstandingcontrary, absent the Custodian shall have no notice ofbad faith, and shall not be bound by, any other document gross negligence or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice willful misconduct of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the CustodianIssuing Lender.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Credit Agreement (Manufactured Home Communities Inc), Credit Agreement (Manufactured Home Communities Inc), Credit Agreement (Manufactured Home Communities Inc)
Limitation of Liability. 35.1. If Landlord is in default under this Lease and, as a consequence, Tenant recovers a monetary judgment against Landlord, the judgment shall be satisfied only out of (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any proceeds of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out sale received on execution of the services performed under this Agreement judgment and levy against the right, title and interest of Landlord in the Building and the Project, (b) rent or other than damages that result income from their gross negligencesuch real property receivable by Landlord or (c) the consideration received by Landlord from the sale, willful misconductfinancing, refinancing or bad faithother disposition of all or any part of Landlord’s right, title or interest in the Building or the Project.
35.2. The Custodian and its officers, directors, employees, and agents will Landlord shall not be personally liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties deficiency under this AgreementLease. If Landlord is a partnership or joint venture, or in then the exercise partners of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian such partnership shall not be responsible or personally liable forfor Landlord’s obligations under this Lease, and makes no representation partner of Landlord shall be sued or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest named as a party in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice ofsuit or action, and service of process shall not be bound by, made against any other document partner of Landlord except as may be necessary to secure jurisdiction of the partnership or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian joint venture. If Landlord is a signatory party to that document or agreement. Notwithstanding corporation, then the foregoing sentenceshareholders, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, employees and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits agents of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian such corporation shall not be responsible personally liable for delays Landlord’s obligations under this Lease, and no shareholder, director, officer, employee or failures agent of Landlord shall be sued or named as a party in performance resulting from acts beyond its controlany suit or action, and service of process shall not be made against any shareholder, director, officer, employee or agent of Landlord. Acts beyond its control include acts If Landlord is a limited liability company, then the members of Godsuch limited liability company shall not be personally liable for Landlord’s obligations under this Lease, strikesand no member of Landlord shall be sued or named as a party in any suit or action, lockoutsand service of process shall not be made against any member of Landlord except as may be necessary to secure jurisdiction of the limited liability company. No partner, riotsshareholder, acts director, employee, member or agent of war Landlord shall be required to answer or terrorismotherwise plead to any service of process, epidemicsand no judgment shall be taken or writ of execution levied against any partner, nationalizationshareholder, expropriationdirector, currency restrictionsemployee, governmental regulations superimposed after member or agent of Landlord.
35.3. If Tenant is a partnership or joint venture, then the factpartners of such partnership shall not be personally liable for Tenant’s obligations under this Lease, fireand no partner of Tenant shall be sued or named as a party in any suit or action, communication line failuresand service of process shall not be made against any partner of Tenant except as may be necessary to secure jurisdiction of the partnership or joint venture. If Tenant is a corporation, computer virusesthen the shareholders, power failuresdirectors, earthquakesofficers, employees and agents of such corporation shall not be personally liable for Tenant’s obligations under this Lease, and no shareholder, director, officer, employee or other disastersagent of Tenant shall be sued or named as a party in any suit or action, and service of process shall not be made against any shareholder, director, officer, employee or agent of Tenant. If Tenant is a limited liability company, then the members of such limited liability company shall not be personally liable for Tenant’s obligations under this Lease, and no member of Tenant shall be sued or named as a party in any suit or action, and service of process shall not be made against any member of Tenant except as may be necessary to secure jurisdiction of the limited liability company. No partner, shareholder, director, employee, member or agent of Tenant shall be required to answer or otherwise plead to any service of process, and no judgment shall be taken or writ of execution levied against any partner, shareholder, director, employee, member or agent of Tenant.
35.4. Each of the covenants and agreements of this Article shall be applicable to any covenant or agreement either expressly contained in this Lease or imposed by Applicable Laws and shall survive the expiration or earlier termination of this Lease.
Appears in 4 contracts
Samples: Sublease Agreement (Natera, Inc.), Lease Agreement (Spark Therapeutics, Inc.), Lease Agreement (Spark Therapeutics, Inc.)
Limitation of Liability. (a) The Custodian undertakes A Trustee, when acting in such capacity, shall not be personally liable to perform only any Person, other than the obligations specified Trust or a Shareholder to the extent provided in this AgreementArticle VIII, for any act, omission or obligation of the Trust, of such Trustee or of any other Trustee; provided, however, that nothing contained herein or in the Delaware Act shall protect any Trustee against any liability to the Trust or to any Shareholder to which he would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence, or reckless disregard of the duties involved in the conduct of the office of the Trustee hereunder. The IssuerAll persons extending credit to, contracting with or having any claim against the Owner Trustee, Master Servicer, Trust or a particular Series shall look only to the assets of the Trust or such Series for payment under such contract or claim; and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither neither the Custodian Trustees nor any of its affiliates, the Trust's officers, directorsemployees or agents, employeeswhether past, present or agents future, shall be liable, directly or indirectly, for any damages or expenses arising out personally liable therefor. Provided they have exercised reasonable care and have acted under the reasonable belief that their actions are in the best interest of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2Trust, the Custodian makes no warranty or representation Trustees and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability officers of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian Trust shall not be responsible or liable forfor any act or omission or for neglect or wrongdoing of them or any officer, and makes no representation or warranty with respect toagent, the validityemployee, adequacyManager, or perfection Principal Underwriter of the Trust, but nothing contained in this Declaration of Trust or in the Delaware Act shall protect any lien on Trustee or security interest in any Mortgage Loan.
(f) Any other provision officer of this Agreement the Trust against liability to the contrary notwithstandingTrust or to Shareholders to which he or she would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the Custodian shall have no notice ofduties involved in the conduct of his or her office. Every note, bond, contract, instrument, certificate or undertaking and shall not be bound by, any every other document act or agreement thing whatsoever executed or delivered done by or on behalf of the Trust or the Trustees by any of them in connection with, or intended to control any part of, with the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian Trust shall conclusively be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements been executed or delivered done only in connection with, or intended with respect to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement his or their successors capacity as Trustee or Trustees, and assigns. If any provision of this Agreement implies such Trustee or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian Trustees shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreementpersonally liable thereon.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Trust Agreement (Equitable Premier Funds Trust), Trust Agreement (Axa Premier Funds Trust), Trust Agreement (Axa Premier Vip Trust)
Limitation of Liability. The limit of EH!tel ‘s liability in contract, tort (aincluding negligence) The Custodian undertakes or by statute or otherwise to perform only customer (or its clients) concerning performance or non-performance in any manner related to this Contract, for any and all claims will not, in the obligations specified aggregate, exceed the total fees paid by the Customer to EH!tel under this Contract in this Agreementthe immediately preceding one month from the date the claim arose. In no event will EH!tel be liable for any lost profits, special, indirect, consequential, incidental or punitive damages. The Issuer, Customer acknowledges that this limitation of liability and waiver of damages is a material term of this Contract and that EH!tel would not enter into this Contract in the Owner Trustee, Master Servicerabsence of this waiver. You expressly agree and acknowledge that the use of the service is at your sole risk, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian in particular but without limiting the generality of the forgoing, neither EH!tel nor any of its affiliatesinformation providers, officers, directorslicensors, employees, or agents shall warrant that the Service will be liableuninterrupted or error-free; nor does EH!tel or any of its information providers, directly or indirectly, for any damages or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directorslicensors, employees, or agents make any warranty or representation as to the result to be obtained from the use of the Service. The Service and agents will not any deliverables provided by EH!tel or those for whom it is responsible in law are provided "as is" and "as available" without warranties or conditions of any kind except for those explicitly referred to in this Contract. Neither EH!tel nor anyone else involved in creating, producing, or delivering the Service shall be liable for any consequentialdirect, indirect, punitiveincidental, special or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability consequential damages arising out of use of the Mortgage Loans Service or any of inability to use the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of Service. In addition, you expressly agree and acknowledge that neither EH!tel nor any of its duties under this Agreementaffiliates warrant that any data or files sent to you be transmitted in uncorrupted form or within a reasonable period of time, that such data or files will not be intercepted or that other users will not gain access to any of your computer equipment, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakesContent, or other disastersmaterials accessible on the Service is free of viruses or harmful elements or components. There are no express or implied representations, warranties or conditions whatsoever (including warranties of title or non-infringement, or the implied warranties of merchantability or fitness for a particular purpose) with regard to the service or any merchandise, information or service provided on the Internet and all representations, warranties, or conditions of any kind, express or implied, are to the extend permitted by the applicable law excluded hereby.
Appears in 4 contracts
Samples: Installation & Service Agreement, Installation & Service Agreement, Installation & Service Contract
Limitation of Liability. (a) The Custodian undertakes to perform only None of the obligations specified in this Agreement. The IssuerOwner Participant, the Owner Lessor, the Trust Company, the Lessor Manager, the Indenture Trustee, Master Servicerthe Lease Indenture Company, the Pass Through Trustees, the Pass Through Company or the Certificateholders shall have any obligation or duty to the Facility Lessee or to others with respect to the transactions contemplated hereby, except those obligations or duties expressly set forth in this Agreement and the other Operative Documents to which such Person is a party, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out none of the services performed under this Agreement other than damages that result from their gross negligenceOwner Participant, willful misconductthe Owner Lessor, the Indenture Trustee, the Lease Indenture Company, the Pass Through Trustees, the Pass Through Company or bad faith. The Custodian and its officers, directors, employees, and agents will not the Certificateholders shall be liable for performance by any consequential, indirect, punitive, other party hereto of such other party's obligations or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability duties hereunder. Without limitation of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, under no circumstances whatsoever shall the Custodian may rely Owner Participant be liable to the Facility Lessee for any action or inaction on and the part of the Owner Lessor in connection with the transactions contemplated herein, whether or not such action or inaction is caused by willful misconduct or gross negligence of the Owner Lessor, unless such action or inaction is at the written direction of the Owner Participant. Neither the Facility Lessee nor any other Calpine Party shall be protected in acting in good faith on have any notice obligation or other communication received by it that it reasonably believes duty to be genuine and duly authorized the Owner Participant, the Owner Lessor, the Indenture Trustee, the Lease Indenture Company, the Pass Through Trustees, the Pass Through Company, the Certificateholders or to others with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by contemplated hereby, except those obligations or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations duties expressly set forth in this Agreement and the other Operative Documents, and neither the Facility Lessee nor any other Calpine Party (except Calpine to the extent set forth in the Calpine Guaranty) shall be liable for performance by any other party hereto of such other party's obligations or in a written amendment to this Agreement executed by duties hereunder. The Lease Indenture Company and the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as Pass Through Company are entering into the Operative Documents to which it is a party has solely as trustees under the duty to act or refrain from actingCollateral Trust Indenture and the Pass Through Trust Agreements, the parties agree that the Custodian shall respectively, and not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action in their individual capacities, except as expressly provided herein or therein, and in this Agreement.
(h) Nothing no case whatsoever shall the Lease Indenture Company and the Pass Through Company be personally liable for, or for any loss in this Agreement respect of, any of the statements, representations, warranties, agreements or obligations of the Owner Lessor hereunder or under any other Operative Document or the FILOT Lease, as to all of which the other parties hereto agree to look solely to the Indenture Estate and the Lessor Estate, respectively; provided, however, that the Lease Indenture Company and the Pass Through Trust Company shall impose on be liable hereunder for their own negligence or willful misconduct or for a breach of their representations, warranties and covenants made in their individual capacity under any Operative Document. The right of the Custodian Indenture Trustee or the Pass Through Trustees to perform any duty to qualify to do business discretionary act enumerated herein or in any jurisdictionother Operative Document (including, without limitation, the right to consent to any action which requires their consent and the right to waive any provision of, or consent to any change or amendment to, any of the Operative Documents) shall not be construed as a duty, and neither the Indenture Trustee nor the Pass Through Trustees shall be liable or answerable for other than (i) any jurisdiction where any Mortgage File is its negligence or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties willful misconduct in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those dutiessuch acts. In connection with any such discretionary acts, the Indenture Trustee may in its sole discretion (but shall not, except as otherwise provided herein or in the Collateral Trust Indenture or as otherwise required by Applicable Law, have any obligation to) request the approval or instruction of the Pass Through Trustees as the holder of the Lessor Notes, and the Pass Through Trustees may in its sole discretion (but shall not, except as otherwise provided in the Operative Documents or as otherwise required by Applicable Law, have any obligation to) request the approval of the Certificateholders. The Owner Participant will give the Facility Lessee at least 15 days' prior notice of any proposed amendment or supplement to the LLC Agreement (other than an amendment solely effecting a transfer of the Owner Participant's interest in the Lessor Estate) and deliver true, complete and fully executed copies to the Facility Lessee of any amendment or supplement to the LLC Agreement. No amendment or supplement to the LLC Agreement that would reasonably be expected to materially adversely affect the interests of the Facility Lessee or the Indenture Trustee shall become effective without the written consent of the Indenture Trustee and the Facility Lessee.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Participation Agreement (Calpine Corp), Participation Agreement (Calpine Corp), Participation Agreement (Calpine Corp)
Limitation of Liability. (a) The Custodian undertakes Notwithstanding anything contained herein to perform only the contrary, this Agreement has been executed and delivered by Deutsche Bank Trust Company Delaware, not in its individual capacity but solely as Owner Trustee, and in no event shall it have any liability for the representations, warranties, covenants, agreements or other obligations specified of the Issuer hereunder or under the Notes or any of the other Transaction Documents or in any of the certificates, notices or agreements delivered pursuant thereto, as to all of which recourse shall be had solely to the assets of the Issuer. Under no circumstances shall the Owner Trustee be personally liable for the payment of any indebtedness or expense of the Issuer or be liable for the breach or failure of any obligations, representation, warranty or covenant made or undertaken by the Issuer under the Transaction Documents. For the purposes of this Agreement. The Issuer, in the performance of its duties or obligations hereunder, the Owner Trustee, Master ServicerTrustee shall be subject to, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither entitled to the Custodian nor any benefits of, the terms and provisions of its affiliatesArticles VI, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out VII and VIII of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damagesTrust Agreement.
(b) Except Notwithstanding anything contained herein to the contrary, this Agreement has been executed and delivered by U.S. Bank National Association, not in its individual capacity but solely as provided Indenture Trustee, and in Section 2, the Custodian makes no warranty or representation and has no responsibility event shall it have any liability for the completenessrepresentations, validitywarranties, sufficiencycovenants, value, genuineness, ownership, agreements or transferability other obligations of the Mortgage Loans Issuer under the Notes or any of the documents other Transaction Documents or in any of the Mortgage Files.
(c) The Custodian need not expend certificates, notices or risk agreements delivered pursuant thereto, as to all of which recourse shall be had solely to the assets of the Issuer; provided that the Indenture Trustee shall be responsible for its own funds actions as Indenture Trustee hereunder and under the Indenture. Under no circumstances shall the Indenture Trustee be personally liable for the payment of any indebtedness or otherwise incur financial liability expense of the Issuer or be liable for the breach or failure of any obligations, representation, warranty or covenant made or undertaken by the Issuer under the Transaction Documents. For the purposes of this Agreement, in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoingobligations hereunder, the Custodian may rely on and Indenture Trustee shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable forsubject to, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement entitled to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part benefits of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice terms and provisions of Article VI of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the CustodianIndenture.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Sale and Servicing Agreement (Santander Drive Auto Receivables Trust 2011-3), Sale and Servicing Agreement (Santander Drive Auto Receivables Trust 2011-3), Sale and Servicing Agreement (Santander Drive Auto Receivables Trust 2010-3)
Limitation of Liability. (a) The Custodian undertakes to perform only the obligations specified in this Agreement. The IssuerNeither LPL, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian IAR nor any of its affiliates, their officers, directors, employees, or agents affiliates shall be liableliable for any loss incurred with respect to the Account, except where such loss directly results from such party’s negligence or misconduct. Client acknowledges that neither LPL, IAR nor their employees are agents of each other or of any of their affiliates, and that no party shall be liable for any act or omission of another party or their agents or employees. Nothing in this Agreement shall in any way constitute a waiver or limitation of any rights which Client may have under federal or state securities laws (or ERISA, where applicable). Client further understands that there is no guarantee that Client’s investment objectives will be achieved. Neither LPL nor IAR shall have any liability for Client’s failure to inform IAR in a timely manner of any material change in Client’s financial circumstances which might affect the manner in which Client’s assets are allocated, or to provide IAR with any information as to Client’s financial status as IAR may reasonably request. LPL shall not be liable for loss caused, directly or indirectly, by government restrictions, exchange or market rulings, suspension of trading, war, strikes or other conditions beyond LPL’s control. Client also understands that IAR and LPL do not provide tax, accounting or legal advice. Client acknowledges that certain ETFs may be subject to unique tax consequences such as K-1 tax reporting and tax treatment for any damages collectibles. In making tax, accounting or expenses arising out of the services performed under this Agreement other than damages that result from their gross negligencelegal decisions, willful misconduct, Client will consult with and rely on Client’s own advisors and not IAR or bad faith. The Custodian and its officers, directors, employeesLPL, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation IAR and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian LPL shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian liability therefore. LPL is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice member of the terms Securities Investor Protection Corporation ("SIPC"). SIPC provides protection for the Account for up to $500,000, including definitions not otherwise set forth in full in this Agreement) of other documents $250,000 for claims for cash. The account protection applies when a SIPC member firm fails financially and agreements executed or delivered in connection with, or intended is unable to control any part of, the transactions anticipated by or referred meet obligations to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a partysecurities customers, but is silent as to which party has it does not protect against losses from the duty to act or refrain from actingrise and fall in the market value of investments. More information on SIPC, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdictionincluding obtaining a SIPC Brochure, other than (i) any jurisdiction where any Mortgage File is or may be held obtained by the Custodian from time to time under this Agreement, and calling SIPC directly at (ii000) any jurisdiction where its ownership of property 000-0000 or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreementby visiting xxx.xxxx.xxx.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Account Agreement, Account Agreement, Account Agreement
Limitation of Liability. (a) The Custodian undertakes All Persons extending credit to, contracting with or having any claim against the Trust or a particular Series shall look only to perform only the obligations specified in this Agreement. The Issuerassets of the Trust or any applicable Series that such Person extended credit to, the Owner Trustee, Master Servicer, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither the Custodian nor any of its affiliates, officers, directors, employees, contracted with or agents shall be liable, directly or indirectlyhas a claim against, for any damages payment under such contract or expenses arising out of claim; and neither the services performed under this Agreement other than damages that result from their gross negligenceTrustees nor the Shareholders, willful misconductnor, or bad faith. The Custodian and its officerswhen acting in such capacity, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or representation and has no responsibility for the completeness, validity, sufficiency, value, genuineness, ownership, or transferability of the Mortgage Loans or any of the documents in the Mortgage Files.
(c) Trust’s officers, employees or agents, whether past, present or future, shall be personally liable therefor. The Custodian need not expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment Trustees and officers of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may rely on and shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian Trust shall not be responsible or liable forfor any act or omission, and makes no representation errors of judgment, mistakes of fact or warranty with respect to, the validity, adequacylaw, or perfection for neglect or wrongdoing of them or any lien on officer, agent, employee, investment advisor or security interest independent contractor of the Trust, but nothing contained in this Trust Instrument or in the Delaware Act shall protect any Mortgage Loan.
(f) Any other provision Trustee or officer of this Agreement the Trust against liability to the contrary notwithstandingTrust or to Shareholders to which he or she would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or reckless disregard of the Custodian shall have no notice ofduties involved in the conduct of his office. Every note, bond, contract, instrument, certificate or undertaking and shall not be bound by, any every other document act or agreement thing whatsoever executed or delivered done by or on behalf of the Trust or the Trustees by any of them in connection with, or intended to control any part of, with the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian Trust shall conclusively be deemed to have notice of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements been executed or delivered done only in connection with, or intended with respect to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement his or their successors capacity as Trustee or Trustees, and assigns. If any provision of this Agreement implies such Trustee or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian Trustees shall not be personally liable thereon. At the party required to take Trustees’ discretion, any note, bond, contract, instrument, certificate or undertaking made or issued by the action Trustees or refrain from acting. In no event shall by any officer or officers may give notice that the Custodian have any responsibility to ascertain or take action except as expressly provided Certificate of Trust is on file in this Agreement.
(h) Nothing in this Agreement shall impose the Office of the Secretary of State of the State of Delaware and that a limitation on the Custodian liability of the Trust and the Series exists and such note, bond, contract, instrument, certificate or undertaking may, if the Trustees so determine, recite that the same was executed or made on behalf of the Trust by a Trustee or Trustees in such capacity and not individually or by an officer or officers in such capacity and not individually and that the obligations of such instrument are not binding upon any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is of them or may be held by the Custodian from time to time under this AgreementShareholders individually but are binding only on the assets and property of the Trust or a Series thereof, and (ii) may contain such further recital as such Person or Persons may deem appropriate. The omission of any jurisdiction where its ownership of property such notice or conduct of business requires such qualification and where failure recital shall in no way operate to qualify could have a material adverse effect on the Custodian bind any Trustees, officers or its property or business or on the ability of the Custodian to perform its duties under this AgreementShareholders individually.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Agreement and Declaration of Trust (TCW ETF Trust), Agreement and Declaration of Trust (BlackRock ETF Trust II), Agreement and Declaration of Trust (Engine No. 1 ETF Trust)
Limitation of Liability. (a) The Custodian undertakes Notwithstanding anything contained herein to perform only the contrary, this Agreement has been executed and delivered by Wilmington Trust Company, not in its individual capacity but solely as Owner Trustee, and in no event shall it have any liability for the representations, warranties, covenants, agreements or other obligations specified of the Issuer hereunder or under the Notes or any of the other Transaction Documents or in any of the certificates, notices or agreements delivered pursuant thereto, as to all of which recourse shall be had solely to the assets of the Issuer. Under no circumstances shall the Owner Trustee be personally liable for the payment of any indebtedness or expense of the Issuer or be liable for the breach or failure of any obligations, representation, warranty or covenant made or undertaken by the Issuer under the Transaction Documents. For the purposes of this Agreement. The Issuer, in the performance of its duties or obligations hereunder, the Owner Trustee, Master ServicerTrustee shall be subject to, and Indenture Trustee acknowledge that no implied obligations exist under this Agreement. Neither entitled to the Custodian nor any benefits of, the terms and provisions of its affiliatesArticles VI, officers, directors, employees, or agents shall be liable, directly or indirectly, for any damages or expenses arising out VII and VIII of the services performed under this Agreement other than damages that result from their gross negligence, willful misconduct, or bad faith. The Custodian and its officers, directors, employees, and agents will not be liable for any consequential, indirect, punitive, or special damagesTrust Agreement.
(b) Except Notwithstanding anything contained herein to the contrary, this Agreement has been executed and delivered by JPMorgan Chase Bank, N.A., not in its individual capacity but solely as provided Indenture Trustee, and in Section 2, the Custodian makes no warranty or representation and has no responsibility event shall it have any liability for the completenessrepresentations, validitywarranties, sufficiencycovenants, value, genuineness, ownership, agreements or transferability other obligations of the Mortgage Loans Issuer under the Notes or any of the documents other Transaction Documents or in any of the Mortgage Files.
(c) The Custodian need not expend certificates, notices or risk agreements delivered pursuant thereto, as to all of which recourse shall be had solely to the assets of the Issuer; provided that the Indenture Trustee will be responsible for its own funds actions as Indenture Trustee hereunder and under the Indenture. Under no circumstances shall the Indenture Trustee be personally liable for the payment of any indebtedness or otherwise incur financial liability expense of the Issuer or be liable for the breach or failure of any obligations, representation, warranty or covenant made or undertaken by the Issuer under the Transaction Documents. For the purposes of this Agreement, in the performance of any of its duties under this Agreement, or in the exercise of its rights, if the Custodian believes that repayment of the funds or adequate indemnity against the risk or liability is not reasonably assured to it.
(d) Without limiting the generality of the foregoingobligations hereunder, the Custodian may rely on and Indenture Trustee shall be protected in acting in good faith on any notice or other communication received by it that it reasonably believes to be genuine and duly authorized with respect to all matters pertaining to this Agreement and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable forsubject to, and makes no representation or warranty with respect to, the validity, adequacy, or perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement entitled to the contrary notwithstanding, the Custodian shall have no notice of, and shall not be bound by, any other document or agreement executed or delivered in connection with, or intended to control any part benefits of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice terms and provisions of Article VI of the terms (including definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent the terms are referenced, or are incorporated by reference, into this Agreement only as long as the Indenture Trustee has provided a copy of the document or agreement to the CustodianIndenture.
(g) The Custodian shall have only the obligations expressly set forth in this Agreement or in a written amendment to this Agreement executed by the parties to this Agreement or their successors and assigns. If any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian from time to time under this Agreement, and (ii) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Custodian or its property or business or on the ability of the Custodian to perform its duties under this Agreement.
(i) The Custodian may execute any of its duties under this Agreement through any of its agents, attorneys-in-fact, or affiliates. Any agent, attorney-in-fact, or affiliate of the Custodian (and any affiliate's directors, officers, agents, and employees) that performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver, and other protective provisions to which the Custodian is entitled under this Agreement, but the Custodian shall remain responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Acts beyond its control include acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes, or other disasters.
Appears in 4 contracts
Samples: Sale and Servicing Agreement (Capital One Auto Finance Trust 2005-D), Sale and Servicing Agreement (Capital One Auto Receivables LLC), Sale and Servicing Agreement (Capital One Auto Receivables LLC)
