Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders of Receipts other than for its gross negligence or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Stock for deposit, any holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 4 contracts
Samples: Deposit Agreement (Schwab Charles Corp), Deposit Agreement (Schwab Charles Corp), Deposit Agreement (Schwab Charles Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s gross negligence, willful misconduct or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction), the Depositary’s aggregate liability under this Agreement with respect to, arising from or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if they have been advised of the likelihood of such loss or damage and regardless of the form of action. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar Registrar, Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar and Transfer Agent shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunderit, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, each of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction. In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holders of Receipts, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification set forth in Section 5.6 hereof in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent under this Agreement. In addition, at any time, the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, may apply to any officer of the DepositaryCorporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable to and shall be indemnified by the Corporation or any holder of Receipts, for any action taken or omitted by it them in accordance with reliance upon any instructions from the written instruction Corporation or upon the advice or opinion of such counsel. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 3 contracts
Samples: Deposit Agreement (Equitable Holdings, Inc.), Deposit Agreement (Equitable Holdings, Inc.), Deposit Agreement (AXA Equitable Holdings, Inc.)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders of Receipts other than for its gross negligence or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under under, any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Stock for deposit, any holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 3 contracts
Samples: Deposit Agreement (Schwab Charles Corp), Deposit Agreement (Schwab Charles Corp), Deposit Agreement (Schwab Charles Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation assumes any obligation or shall be subject to any liability to any Person under this Deposit Agreement to holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s, any Depositary’s Agent’s, Registrar’s or Transfer Agent’s gross negligence, willful misconduct or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction), the Depositary’s, any Depositary’s Agent’s, Registrar’s or Transfer Agent’s aggregate liability under this Agreement with respect to, arising from or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to the Depositary as fees and charges but in no event exceeding an aggregate amount of twenty-five thousand dollars ($25,000), but not including reimbursable expenses. Notwithstanding anything in this Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if they have been advised of the likelihood of such loss or damage and regardless of the form of action. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be reasonably required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice or opinion of legal counsel or accountants, in the absence of bad faith on its part, or information from any person presenting Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is does not due to the willful misconduct or arise from bad faith, gross negligence of the Depositaryor willful misconduct. The Depositary undertakes, and any Registrar and Transfer Agent shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or any Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary it hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, each of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction. In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holders of Receipts, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification set forth in Section 5.6 hereof in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary under this Agreement. In addition, at any time, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary with respect to any matter arising in connection with the services to be performed by the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, under this Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken, suffered or omitted to be taken by them in reliance upon any instructions from the Corporation or any holder upon the advice or opinion of Receiptssuch counsel, for any action taken by it in accordance with the written instruction absence of bad faith on their part. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 3 contracts
Samples: Deposit Agreement (Brighthouse Financial, Inc.), Deposit Agreement (Brighthouse Financial, Inc.), Deposit Agreement (Brighthouse Financial, Inc.)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series E Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be furnished as often as may be requiredincurred. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series E Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series E Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, its parent, affiliates or subsidiaries, the Depositary’s Agents, and any the Registrar may own own, buy, sell and deal in any class of securities of the Corporation and its affiliates and in ReceiptsReceipts or Depositary Shares or become pecuniarily interested in any transaction in which the Corporation or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary, parent, affiliate or subsidiary or Depositary’s Agent or Registrar hereunder. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series E Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 2 contracts
Samples: Deposit Agreement (Goodrich Petroleum Corp), Deposit Agreement (State Street Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, Depositary nor the any Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series G Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series G Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation (including each of their officers, directors and employees) against any liability which may directly arise out of acts performed or omitted by the Depositary or any Depositary Agent due to its gross negligence or willful misconducttheir negligence, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreementbad faith. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series G Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, Agents and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series G Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, or the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder Holder of Receipts, Receipts for any action taken by it in accordance with the written instruction of the CorporationCorporation or the Holders of Receipts.
Appears in 2 contracts
Samples: Deposit Agreement (Zions Bancorporation, National Association /Ut/), Deposit Agreement (Zions Bancorporation /Ut/)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under under, any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Stock for deposit, any holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence negligence, willful misconduct or willful misconductbad faith, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or negligence, willful misconduct or bad faith of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 2 contracts
Samples: Deposit Agreement (Schwab Charles Corp), Deposit Agreement (Schwab Charles Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Transfer Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other person other than for its gross negligence or negligence, willful misconduct, bad faith or fraud (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if that party has been advised of or has foreseen the possibility of such damages and regardless of the form of action. Notwithstanding anything contained herein to the contrary, the Depositary’s, any Depositary’s Agent, Registrar’s or Transfer Agent’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to Depositary as fees and charges, but not including reimbursable expenses. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series A Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be reasonably required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series A Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series A Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar and Transfer Agent shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit AgreementAgreement (or as may subsequently be agreed to in writing by the parties), and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or any Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series A Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary it hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction. In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holders of Receipts, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification set forth in Section 5.6 hereof in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, under this Deposit Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken, suffered or omitted to be taken by them in reliance upon any instructions from the Corporation or any holder upon the advice or opinion of Receipts, for any action taken by it in accordance with the written instruction such counsel. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 2 contracts
Samples: Deposit Agreement (Old National Bancorp /In/), Deposit Agreement (Old National Bancorp /In/)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation assumes any obligation or shall be subject to any liability to any Person under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s gross negligence, willful misconduct or bad faith, the Depositary’s, any Depositary’s Agent, Registrar’s or Transfer Agent’s aggregate liability under this Agreement with respect to, arising from or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if they have been advised of the likelihood of such loss or damage and regardless of the form of action. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar and Transfer Agent shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or any Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary it hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, each of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction. In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holders of Receipts, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification set forth in Section 5.6 hereof in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary under this Agreement. In addition, at any time, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, under this Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable to and shall be indemnified by the Corporation or any holder of Receipts, for any action taken or omitted by it them in accordance with reliance upon any instructions from the written instruction Corporation or upon the advice or opinion of such counsel. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 2 contracts
Samples: Deposit Agreement (Metlife Inc), Deposit Agreement (Metlife Inc)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under under, any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Stock for deposit, any holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence negligence, willful misconduct or willful misconductbad faith, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or negligence, willful misconduct or bad faith of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 2 contracts
Samples: Deposit Agreement (Schwab Charles Corp), Deposit Agreement (Schwab Charles Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series C Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be furnished as often as may be requiredincurred. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series C Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series C Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, its parent, affiliates or subsidiaries, the Depositary’s Agents, and any the Registrar may own own, buy, sell and deal in any class of securities of the Corporation and its affiliates and in ReceiptsReceipts or Depositary Shares or become pecuniarily interested in any transaction in which the Corporation or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary, parent, affiliate or subsidiary or Depositary’s Agent or Registrar hereunder. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series C Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 2 contracts
Samples: Deposit Agreement (Goodrich Petroleum Corp), Deposit Agreement (State Street Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series D Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be furnished as often as may be requiredincurred. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series D Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series D Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, its parent, affiliates or subsidiaries, the Depositary’s Agents, and any the Registrar may own own, buy, sell and deal in any class of securities of the Corporation and its affiliates and in ReceiptsReceipts or Depositary Shares or become pecuniarily interested in any transaction in which the Corporation or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary, parent, affiliate or subsidiary or Depositary’s Agent or Registrar hereunder. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series D Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 2 contracts
Samples: Deposit Agreement (State Street Corp), Deposit Agreement (Goodrich Petroleum Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductfraud (each as finally determined by a non-appealable judgment, order, decree or ruling of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits) even if that party has been advised of or has foreseen the possibility of such damages, other than for its gross negligence, willful misconduct or fraud (each as finally determined by a non-appealable judgment, order, decree or ruling of a court of competent jurisdiction). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series A Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series A Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series A Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series A Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. Notwithstanding anything contained herein to the contrary, excluding the Depositary’s gross negligence, willful misconduct or fraud (each as finally determined by a non-appealable judgment, order, decree or ruling of a court of competent jurisdiction), the Depositary’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not be liable to exceed, the amounts paid hereunder by the Corporation or any holder of Receiptsto Depositary as fees and charges, but not including reimbursable expenses during the twelve (12) months immediately preceding the event for any action taken by it in accordance with the written instruction which recovery from Depositary is being sought. The rights and obligations of the Corporationparties under this Section 5.3 shall survive any resignation or succession of any Depositary, Registrar or Depositary’s Agent and the termination of this Deposit Agreement.
Appears in 2 contracts
Samples: Deposit Agreement (First Guaranty Bancshares, Inc.), Deposit Agreement (CNB Financial Corp/Pa)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, Depositary nor the any Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series H Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series H Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation (including each of their officers, directors and employees) against any liability which may directly arise out of acts performed or omitted by the Depositary or any Depositary Agent due to its gross negligence or willful misconducttheir negligence, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreementbad faith. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series H Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, Agents and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series H Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, or the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder Holder of Receipts, Receipts for any action taken by it in accordance with the written instruction of the CorporationCorporation or the Holders of Receipts.
Appears in 2 contracts
Samples: Deposit Agreement (Zions Bancorporation, National Association /Ut/), Deposit Agreement (Zions Bancorporation /Ut/)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s fraud, recklessness, willful misconductmisconduct or bad faith, the Depositary’s aggregate liability under this Deposit Agreement with respect to, arising from or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if they have been advised of the likelihood of such loss or damage and regardless of the form of action. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series B Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon (i) the written advice of legal counsel or accountants, accountants or (ii) information from any person Person presenting Series B Preferred Stock for deposit, any holder Holder of a Receipt or any other person Person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series B Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the result of the Depositary’s gross negligence, willful misconduct or gross negligence of the Depositarybad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series B Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary reasonably believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem reasonably deems it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person Person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by a duly authorized officer of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and its agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken or omitted by the Depositary in reliance upon any written instructions from the Corporation or upon the advice or opinion of such counsel. The Depositary shall not be liable held to the Corporation or have notice of any holder change of Receiptsauthority of any Person, for any action taken by it in accordance with the until receipt of written instruction of notice thereof from the Corporation. The terms of this Section 5.3 shall survive termination of this Agreement.
Appears in 2 contracts
Samples: Deposit Agreement (Regions Financial Corp), Deposit Agreement (Regions Financial Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Transfer Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other person other than for its gross negligence or negligence, willful misconduct, bad faith or fraud (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if that party has been advised of or has foreseen the possibility of such damages and regardless of the form of action. Notwithstanding anything contained herein to the contrary, the Depositary’s, any Depositary’s Agent, Registrar’s or Transfer Agent’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to Depositary as fees and charges, but not including reimbursable expenses. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series C Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be reasonably required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series C Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series C Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar and Transfer Agent shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit AgreementAgreement (or as may subsequently be agreed to in writing by the parties), and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or any Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series C Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary it hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction. In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holders of Receipts, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification set forth in Section 5.6 hereof in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, under this Deposit Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken, suffered or omitted to be taken by them in reliance upon any instructions from the Corporation or any holder upon the advice or opinion of Receipts, for any action taken by it in accordance with the written instruction such counsel. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 2 contracts
Samples: Deposit Agreement (Old National Bancorp /In/), Deposit Agreement (Old National Bancorp /In/)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, Depositary nor the any Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series A Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series A Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation (including each of their officers, directors and employees) against any liability which may directly arise out of acts performed or omitted by the Depositary or any Depositary Agent due to its gross negligence or willful misconducttheir negligence, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreementbad faith. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series A Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, Agents and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series A Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, or the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder Holder of Receipts, Receipts for any action taken by it in accordance with the written instruction of the CorporationCorporation or the Holders of Receipts.
Appears in 2 contracts
Samples: Deposit Agreement (Zions Bancorporation, National Association /Ut/), Deposit Agreement (Zions Bancorporation /Ut/)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith. Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s gross negligence, willful misconduct or bad faith, the Depositary’s aggregate liability under this Agreement with respect to, arising from or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Agreement. The Depositary and its agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken or omitted by the Depositary in reliance upon any instructions from the Corporation or upon the advice or opinion of such counsel. The Depositary shall not be liable held to the Corporation or have notice of any holder change of Receiptsauthority of any person, for any action taken by it in accordance with the until receipt of written instruction of the notice thereof from Corporation.
Appears in 2 contracts
Samples: Deposit Agreement (Allstate Corp), Deposit Agreement (Allstate Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other person or entity other than for its gross negligence, willful misconduct, bad faith or fraud (in each case as determined by a final non-appealable judgment of a court of competent jurisdiction). The Corporation shall not assume any obligation nor shall be subject to any liability under this Deposit Agreement to Holders of Receipts other than for its gross negligence or negligence, willful misconduct, bad faith or fraud (in each case as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Notwithstanding anything contained herein to the contrary, the Depositary’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amount of fees paid by the Company to the Depositary pursuant to this Deposit Agreement during the twelve (12) months immediately preceding the event for which recovery from the Depositary, but not including reimbursable expenses; provided, however, that the limitation of liability set forth in this sentence shall not apply to any act or omission of the Depositary constituting recklessness, willful misconduct, bad faith, or fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series O Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. No provision of this Deposit Agreement shall require the Depositary to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it believes that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series O Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good the absence of bad faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against may execute and exercise any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents, and the Depositary shall not be liable answerable or accountable for the acts any act, omission, default, neglect or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement attorneys or otherwise, the Depositary’s aggregate liability agents or for any loss to the Corporation, to the Holders of the Receipts or any of the Corporation’s representatives other person or agentsentity resulting from any such act, under this Section 5.3omission, default, neglect or under any other term or provision of this Agreementmisconduct, whether in contractabsent gross negligence, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation bad faith in the preceding sentence will selection and continued employment thereof (which gross negligence, willful misconduct or bad faith must be applicable only to claims arising out determined by a final, non-appealable judgment of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreementa court of competent jurisdiction). The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series O Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence taken in bad faith (as determined by a final, non-appealable decision of the Depositarya court of competent jurisdiction). The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series O Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary hereunder. In addition, at any time the Depositary may apply to any officer of the Corporation for instruction with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and Depositary’s Agents shall not be liable and shall be indemnified by the Corporation for any action taken or omitted by the Depositary in reliance upon any Corporation instructions. The Depositary shall not be liable held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation Corporation. The Depositary may rely on and be fully authorized and protected in acting or failing to act upon (a) any guaranty of signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable “signature guarantee program” or insurance program in addition to, or in substitution for, the foregoing; or (b) any law, act, regulation or any holder of Receipts, for any action taken by it in accordance with the written instruction interpretation of the Corporationsame even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Transfer Agent nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other Person other than for its gross negligence negligence, willful misconduct or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s fraud, recklessness, willful misconductmisconduct or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction), the Depositary’s, any Depositary’s Agent, Registrar’s or Transfer Agent’s aggregate liability under this Deposit Agreement with respect to, arising from or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if they have been advised of the likelihood of such loss or damage and regardless of the form of action. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series B Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon (i) the written advice of legal counsel or accountants, accountants or (ii) information from any person Person presenting Series B Preferred Stock for deposit, any holder Holder of a Receipt or any other person Person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series B Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the result of the Depositary’s gross negligence, willful misconduct or gross negligence bad faith (each as determined by a final non-appealable judgment of the Depositarya court of competent jurisdiction). The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or any Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series B Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent reasonably believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary it hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall reasonably deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person Person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by a duly authorized officer of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction. In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holder of a Receipt, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification set forth in Section 5.7 hereof in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary with respect to any matter arising in connection with the services to be performed by the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, under this Deposit Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken, suffered or omitted to be taken by them in reliance upon any written instructions from the Corporation or any holder upon the advice or opinion of Receipts, for any action taken by it in accordance with the written instruction such counsel. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any Person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series L Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series L Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series L Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series L Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Samples: Deposit Agreement (Us Bancorp \De\)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or negligence, willful misconduct, bad faith or fraud. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Notwithstanding anything contained herein to the contrary, the Depositary’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all Services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to Depositary as fees and charges, but not including reimbursable expenses; provided, however, that the limitation of liability set forth in this sentence shall not apply to any act or omission of the Depositary constituting recklessness, willful misconduct, bad faith, or fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series D Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series D Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series D Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series D Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Samples: Deposit Agreement (Bb&t Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation under this Deposit Agreement to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series F Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be furnished as often as may be requiredincurred. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it under this Deposit Agreement in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series F Preferred Stock for deposit, any holder Holder of a Receipt or any other person reasonably believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series F Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series F Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Samples: Deposit Agreement (Keycorp /New/)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series G Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be furnished as often as may be requiredincurred. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series G Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series G Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, its parent, affiliates or subsidiaries, the Depositary’s Agents, and any the Registrar may own own, buy, sell and deal in any class of securities of the Corporation and its affiliates and in ReceiptsReceipts or Depositary Shares or become pecuniarily interested in any transaction in which the Corporation or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary, parent, affiliate or subsidiary or Depositary’s Agent or Registrar hereunder. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series G Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or negligence, willful misconduct, bad faith or fraud. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Notwithstanding anything contained herein to the contrary, the Depositary’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all Services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to Depositary as fees and charges, but not including reimbursable expenses; provided, however, that the limitation of liability set forth in this sentence shall not apply to any act or omission of the Depositary constituting recklessness, willful misconduct, bad faith, or fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series E Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series E Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good Table of Contents faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series E Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series E Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Samples: Deposit Agreement (Bb&t Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or willful misconduct, fraud or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including including, but not limited to to, lost profits)) even if that party has been advised of or has foreseen the possibility of such damages, other than for its gross negligence, willful misconduct or bad faith. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series G Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series G Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series G Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series G Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. Notwithstanding anything contained herein to the contrary, excluding the Depositary’s willful misconduct, fraud or bad faith, the Depositary’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not be liable exceed, the amounts paid hereunder by the Corporation to the Corporation or any holder of ReceiptsDepositary as fees and charges, but not including reimbursable expenses during the twelve (12) months immediately preceding the event for any action taken by it in accordance with which recovery from the written instruction Depositary is being sought. The rights and obligations of the Corporationparties under this Section 5.3 shall survive any resignation or succession of any Depositary, Registrar or Depositary’s Agent and the termination of this Deposit Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or negligence, willful misconduct, bad faith or fraud. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Notwithstanding anything contained herein to the contrary, the Depositary’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all Services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to Depositary as fees and charges, but not including reimbursable expenses; provided, however, that the limitation of liability set forth in this sentence shall not apply to any act or omission of the Depositary constituting recklessness, willful misconduct, bad faith, or fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series G Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series G Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series G Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series G Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Samples: Deposit Agreement (Bb&t Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s willful misconductmisconduct or bad faith, the Depositary’s aggregate liability under this Deposit Agreement with respect to, arising from or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series O Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series O Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series O Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series O Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, Company may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of Company for instruction, and may consult with legal counsel for the Depositary or Company with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by the Depositary in reliance upon any Company instructions or upon the advice or opinion of such counsel. The Depositary shall not be liable held to the Corporation or have notice of any holder change of Receiptsauthority of any person, for any action taken by it in accordance with the until receipt of written instruction of the Corporationnotice thereof from Company.
Appears in 1 contract
Samples: Deposit Agreement (PNC Financial Services Group Inc)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s willful misconductmisconduct or bad faith, the Depositary’s aggregate liability under this Deposit Agreement with respect to, arising from or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series P Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series P Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series P Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series P Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, Company may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of Company for instruction, and may consult with legal counsel for the Depositary or Company with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by the Depositary in reliance upon any Company instructions or upon the advice or opinion of such counsel. The Depositary shall not be liable held to the Corporation or have notice of any holder change of Receiptsauthority of any person, for any action taken by it in accordance with the until receipt of written instruction of the Corporationnotice thereof from Company.
Appears in 1 contract
Samples: Deposit Agreement (PNC Financial Services Group, Inc.)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series A Convertible Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be furnished as often as may be requiredincurred. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series A Convertible Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series A Convertible Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, its parent, affiliates or subsidiaries, the Depositary’s Agents, and any the Registrar may own own, buy, sell and deal in any class of securities of the Corporation and its affiliates and in ReceiptsReceipts or Depositary Shares or become pecuniarily interested in any transaction in which the Corporation or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary, parent, affiliate or subsidiary or Depositary’s Agent or Registrar hereunder. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series A Convertible Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductfraud (each as finally determined by a non-appealable judgment, order, decree or ruling of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits) even if that party has been advised of or has foreseen the possibility of such damages, other than for its gross negligence, willful misconduct or fraud (each as finally determined by a non-appealable judgment, order, decree or ruling of a court of competent jurisdiction). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series C Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series C Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series C Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series C Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. Notwithstanding anything contained herein to the contrary, excluding the Depositary’s gross negligence, willful misconduct or fraud (each as finally determined by a non-appealable judgment, order, decree or ruling of a court of competent jurisdiction), the Depositary’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not be liable to exceed, the amounts paid hereunder by the Corporation or any holder of Receiptsto Depositary as fees and charges, but not including reimbursable expenses during the twelve (12) months immediately preceding the event for any action taken by it in accordance with the written instruction which recovery from Depositary is being sought. The rights and obligations of the Corporationparties under this Section 5.3 shall survive any resignation or succession of any Depositary, Registrar or Depositary’s Agent and the termination of this Deposit Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series H Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be furnished as often as may be requiredincurred. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series H Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series H Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, its parent, affiliates or subsidiaries, the Depositary’s Agents, and any the Registrar may own own, buy, sell and deal in any class of securities of the Corporation and its affiliates and in ReceiptsReceipts or Depositary Shares or become pecuniarily interested in any transaction in which the Corporation or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary, parent, affiliate or subsidiary or Depositary’s Agent or Registrar hereunder. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series H Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s gross negligence, willful misconductmisconduct or bad faith, the Depositary’s aggregate liability under this Deposit Agreement with respect to, arising from or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series D Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series D Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series D Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series D Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary Depositary, or Computershare, as applicable, shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and its agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken or omitted by the Depositary in reliance upon any Corporation instructions or upon the advice or opinion of such counsel. The Depositary shall not be liable held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction Corporation. The rights and obligations of the Corporationparties under this Section 5.3 shall survive termination of this Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or negligence, willful misconduct, bad faith or fraud. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Notwithstanding anything contained herein to the contrary, the Depositary’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all Services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to Depositary as fees and charges, but not including reimbursable expenses; provided, however, that the limitation of liability set forth in this sentence shall not apply to any act or omission of the Depositary constituting recklessness, willful misconduct, bad faith, or fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series A Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series A Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series A Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series A Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary terms of this Section 5.3 shall not be liable to the Corporation or any holder survive termination of Receipts, for any action taken by it in accordance with the written instruction of the Corporationthis Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s fraud, recklessness, willful misconductmisconduct or bad faith, the Depositary’s aggregate liability under this Deposit Agreement with respect to, arising from or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if they have been advised of the likelihood of such loss or damage and regardless of the form of action. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series A Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon (i) the written advice of legal counsel or accountants, accountants or (ii) information from any person Person presenting Series A Preferred Stock for deposit, any holder Holder of a Receipt or any other person Person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series A Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the result of the Depositary’s gross negligence, willful misconduct or gross negligence of the Depositarybad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series A Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary reasonably believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem reasonably deems it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person Person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by a duly authorized officer of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and its agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken or omitted by the Depositary in reliance upon any written instructions from the Corporation or upon the advice or opinion of such counsel. The Depositary shall not be liable held to the Corporation or have notice of any holder change of Receiptsauthority of any Person, for any action taken by it in accordance with the until receipt of written instruction of notice thereof from the Corporation. The terms of this Section 5.3 shall survive termination of this Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar Registrar, any Transfer Agent, nor the Corporation Corporation, as the case may be, assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or to any other person other than for its gross negligence or negligence, willful misconduct, bad faith or fraud (each as determined by a final judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s gross negligence, willful misconduct, bad faith or fraud (each as determined by a final judgment of a court of competent jurisdiction), the aggregate liability of the Depositary, the Registrar, any Transfer Agent and any Depositary’s Agent under this Deposit Agreement with respect to, arising from or arising in connection with this Deposit Agreement, or from all actions taken, suffered or omitted to be taken under this Deposit Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, twice the amounts paid hereunder by the Corporation to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation Corporation, as the case may be, shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if they have been advised of the likelihood of such loss or damage and regardless of the form of action. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation Corporation, as the case may be, shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series A Convertible Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation Corporation, as the case may be, shall be liable for any action or any failure to act by it in reasonable reliance (in the absence of bad faith) upon the written advice of legal counsel or accountants, or information from any person presenting Series A Convertible Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good the absence of bad faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar Registrar, any Transfer Agent and the Corporation may each rely and shall each be protected in acting upon (or omitting to act upon upon) any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to Agents, any Registrar or Transfer Agent, as the Corporationcase may be, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series A Convertible Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Depositary’s Agent, Registrar and any Transfer Agent, as the case may be, shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary Depositary, any Depositary’s Agent, Registrar or any RegistrarTransfer Agent. The Depositary, its parent, affiliates or subsidiaries, the Depositary’s Agents, and any Registrar Transfer Agent or Registrar, as the case may own be, may own, buy, sell and deal in any class of securities of the Corporation and its affiliates and in ReceiptsReceipts or Depositary Shares or become pecuniarily interested in any transaction in which the Corporation or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary, its parent, affiliate or subsidiary of the Depositary or the Depositary’s Agent or Transfer Agent or Registrar hereunder. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates or act in any other capacity for the Corporation or its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series A Convertible Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agents, any Transfer Agent or Registrar, as the case may be, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary Depositary, the Depositary’s Agents, any Transfer Agent or Registrar hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agents, any Transfer Agent or Registrar, shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary Depositary, the Depositary’s Agents, any Transfer Agent or Registrar may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and the Depositary, the Depositary’s Agents, any Transfer Agent or Registrar, shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agents, any Transfer Agent or Registrar, receives written instructions or a certificate signed by an officer of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agents, any Transfer Agent or Registrar or which proves or establishes the applicable matter to the satisfaction of the Depositary, the Depositary’s Agents, any Transfer Agent or Registrar. Such written instructions shall be full and complete authorization to the Depositary, the Depositary’s Agents, any Transfer Agent or Registrar, as the case may be, and the Depositary, the Depositary’s Agents, any Transfer Agent or Registrar shall incur no liability for or in respect of any action taken, suffered or omitted by it under the provisions of this Deposit Agreement in reliance upon such written instructions. Unless provided for in this Deposit Agreement, in the event the Depositary, the Depositary’s Agent, the Registrar or the Transfer Agent, as the case may be, shall receive conflicting claims, requests or instructions from any Holders of Receipts, on the one hand, and the Corporation, on the other hand, the Depositary, the Depositary’s Agent, the Registrar or the Transfer Agent, as the case may be, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall incur no liability and shall be entitled to the full indemnification set forth in Section 5.6 hereof in connection with any action so taken. It is intended that the Depositary shall not be deemed to be an “issuer” of the securities under the federal securities laws or applicable state securities laws, it being expressly understood and agreed that the Depositary is acting only in a ministerial capacity as Depositary for the deposited Series A Convertible Preferred Stock. The Depositary will not be under any duty or responsibility to ensure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of the Receipts, the shares of Series A Convertible Preferred Stock or Depositary Shares. Neither the Depositary (or its officers, directors, employees or agents), any Depositary’s Agent nor any Registrar or any Transfer Agent makes any representation or has any responsibility as to the validity of any registration statement pursuant to which the Depositary Shares may be registered under the Securities Act, the deposited shares of Series A Convertible Preferred Stock, the Depositary Shares, the Receipts (except its countersignature thereon) or any instruments referred to therein or herein, or as to the correctness of any statement made in any such registration statement or herein. The Depositary assumes no responsibility for the correctness of the description that appears in the Receipts. Notwithstanding any other provision herein or in the Receipts, the Depositary makes no warranties or representations as to the validity or genuineness of any shares of Series A Convertible Preferred Stock at any time deposited with the Depositary hereunder or of the Depositary Shares, as to the validity or sufficiency of this Deposit Agreement, as to the value of the Depositary Shares or as to any right, title or interest of the record holders of Receipts in and to the Depositary Shares. The Depositary shall not be liable to accountable for the use or application by the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.Depositary Shares or the Receipts or the proceeds thereof. The Depositary, Depositary’s Agent, any Registrar, and any Transfer Agent hereunder:
Appears in 1 contract
Samples: Deposit Agreement (Rex Energy Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation under this Deposit Agreement to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series E Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be furnished as often as may be requiredincurred. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it under this Deposit Agreement in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series E Preferred Stock for deposit, any holder Holder of a Receipt or any other person reasonably believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series E Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series E Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Samples: Deposit Agreement (Keycorp /New/)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Transfer Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other Person other than for its gross negligence or negligence, willful misconduct, bad faith or fraud (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if that party has been advised of or has foreseen the possibility of such damages and regardless of the form of action. Notwithstanding anything contained herein to the contrary, the Depositary’s, any Depositary’s Agent, Registrar’s or Transfer Agent’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to Depositary as fees and charges, but not including reimbursable expenses. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series I Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be reasonably required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series I Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series I Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar and Transfer Agent shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit AgreementAgreement (or as may subsequently be agreed to in writing by the parties), and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or any Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series I Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary it hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction. In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holders of Receipts, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification set forth in Section 5.6 hereof in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, under this Deposit Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken, suffered or omitted to be taken by them in reliance upon any instructions from the Corporation or any holder upon the advice or opinion of Receipts, for any action taken by it in accordance with the written instruction such counsel. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or willful misconduct, fraud or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if that party has been advised of or has foreseen the possibility of such damages, other than for its gross negligence, willful misconduct or bad faith. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series D Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series D Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series D Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series D Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and its agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken or omitted by the Depositary in reliance upon any instructions from the Corporation or upon the advice or opinion of such counsel. The Depositary shall not be liable held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation. Notwithstanding anything contained herein to the contrary, excluding the Depositary’s willful misconduct, fraud or bad faith, the Depositary’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation or any holder of Receiptsto Depositary as fees and charges, but not including reimbursable expenses during the twelve (12) months immediately preceding the event for any action taken by it in accordance with the written instruction which recovery from Depositary is being sought. The rights and obligations of the Corporationparties under this Section 5.3 shall survive any succession of any Depositary, Registrar or Depositary’s Agent and the termination of this Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or willful misconduct, fraud or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if that party has been advised of or has foreseen the possibility of such damages, other than for its gross negligence, willful misconduct or bad faith. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series E Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series E Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series E Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series E Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and its agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken or omitted by the Depositary in reliance upon any instructions from the Corporation or upon the advice or opinion of such counsel. The Depositary shall not be liable held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation. Notwithstanding anything contained herein to the contrary, excluding the Depositary’s willful misconduct, fraud or bad faith, the Depositary’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation or any holder of Receiptsto Depositary as fees and charges, but not including reimbursable expenses during the twelve (12) months immediately preceding the event for any action taken by it in accordance with the written instruction which recovery from Depositary is being sought. The rights and obligations of the Corporationparties under this Section 5.3 shall survive any succession of any Depositary, Registrar or Depositary’s Agent and the termination of this Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s willful misconductmisconduct or bad faith, the Depositary’s aggregate liability under this Deposit Agreement with respect to, arising from or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series R Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series R Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series R Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series R Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, Company may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of Company for instruction, and may consult with legal counsel for the Depositary or Company with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by the Depositary in reliance upon any Company instructions or upon the advice or opinion of such counsel. The Depositary shall not be liable held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. The rights and obligations of the Corporation Depositary set forth in this Section 5.3 shall survive termination of this Deposit Agreement or any holder resignation or succession of Receiptsany Depositary, for any action taken by it in accordance with the written instruction of the CorporationRegistrar or Depositary’s Agent.
Appears in 1 contract
Samples: Deposit Agreement (PNC Financial Services Group, Inc.)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other person or entity other than for its gross negligence, willful misconduct, bad faith or fraud (in each case as determined by a final non-appealable judgment of a court of competent jurisdiction). The Corporation shall not assume any obligation nor shall be subject to any liability under this Deposit Agreement to Holders of Receipts other than for its gross negligence or negligence, willful misconduct, bad faith or fraud (in each case as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Notwithstanding anything contained herein to the contrary, the Depositary’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amount of fees paid by the Company to the Depositary pursuant to this Deposit Agreement during the twelve (12) months immediately preceding the event for which recovery from the Depositary, but not including reimbursable expenses; provided, however, that the limitation of liability set forth in this sentence shall not apply to any act or omission of the Depositary constituting recklessness, willful misconduct, bad faith, or fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series N Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. No provision of this Deposit Agreement shall require the Depositary to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it believes that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series N Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good the absence of bad faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against may execute and exercise any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents, and the Depositary shall not be liable answerable or accountable for the acts any act, omission, default, neglect or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement attorneys or otherwise, the Depositary’s aggregate liability agents or for any loss to the Corporation, to the Holders of the Receipts or any of the Corporation’s representatives other person or agentsentity resulting from any such act, under this Section 5.3omission, default, neglect or under any other term or provision of this Agreementmisconduct, whether in contractabsent gross negligence, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation bad faith in the preceding sentence will selection and continued employment thereof (which gross negligence, willful misconduct or bad faith must be applicable only to claims arising out determined by a final, non-appealable judgment of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreementa court of competent jurisdiction). The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series N Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence taken in bad faith (as determined by a final, non-appealable decision of the Depositarya court of competent jurisdiction). The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series N Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary hereunder. In addition, at any time the Depositary may apply to any officer of the Corporation for instruction with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and Depositary’s Agents shall not be liable and shall be indemnified by the Corporation for any action taken or omitted by the Depositary in reliance upon any Corporation instructions. The Depositary shall not be liable held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation Corporation. The Depositary may rely on and be fully authorized and protected in acting or failing to act upon (a) any guaranty of signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable “signature guarantee program” or insurance program in addition to, or in substitution for, the foregoing; or (b) any law, act, regulation or any holder of Receipts, for any action taken by it in accordance with the written instruction interpretation of the Corporationsame even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed.
Appears in 1 contract
Samples: Deposit Agreement (Bb&t Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation under this Deposit Agreement to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series G Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be furnished as often as may be requiredincurred. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it under this Deposit Agreement in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series G Preferred Stock for deposit, any holder Holder of a Receipt or any other person reasonably believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series G Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series G Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Samples: Deposit Agreement (Keycorp /New/)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series J Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be furnished as often as may be requiredincurred. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series J Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series J Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, its parent, affiliates or subsidiaries, the Depositary’s Agents, and any the Registrar may own own, buy, sell and deal in any class of securities of the Corporation and its affiliates and in ReceiptsReceipts or Depositary Shares or become pecuniarily interested in any transaction in which the Corporation or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary, parent, affiliate or subsidiary or Depositary’s Agent or Registrar hereunder. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series J Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series I Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be furnished as often as may be requiredincurred. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series I Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series I Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, its parent, affiliates or subsidiaries, the Depositary’s Agents, and any the Registrar may own own, buy, sell and deal in any class of securities of the Corporation and its affiliates and in ReceiptsReceipts or Depositary Shares or become pecuniarily interested in any transaction in which the Corporation or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary, parent, affiliate or subsidiary or Depositary’s Agent or Registrar hereunder. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series I Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series B Convertible Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be furnished as often as may be requiredincurred. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series B Convertible Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series B Convertible Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, its parent, affiliates or subsidiaries, the Depositary’s Agents, and any the Registrar may own own, buy, sell and deal in any class of securities of the Corporation and its affiliates and in ReceiptsReceipts or Depositary Shares or become pecuniarily interested in any transaction in which the Corporation or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary, parent, affiliate or subsidiary or Depositary’s Agent or Registrar hereunder. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series B Convertible Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, Depositary nor the any Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series E Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series E Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation (including each of their officers, directors and employees) against any liability which may directly arise out of acts performed or omitted by the Depositary or any Depositary Agent due to its gross negligence or willful misconducttheir negligence, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreementbad faith. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series E Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, Agents and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series E Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, or the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder Holder of Receipts, Receipts for any action taken by it in accordance with the written instruction of the CorporationCorporation or the Holders of Receipts.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, Depositary nor the any Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series C Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series C Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation (including each of their officers, directors and employees) against any liability which may directly arise out of acts performed or omitted by the Depositary or any Depositary Agent due to its gross negligence or willful misconducttheir negligence, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreementbad faith. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series C Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, Agents and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series C Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, or the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder Holder of Receipts, Receipts for any action taken by it in accordance with the written instruction of the CorporationCorporation or the Holders of Receipts.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its negligence (in the case of any action or inaction with respect to the redemption, exchange, transfer or voting of the deposited Series A Preferred Stock), gross negligence or negligence, willful misconduct, bad faith or fraud. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if that party has been advised of or has foreseen the possibility of such damages. Notwithstanding anything contained herein to the contrary, the Depositary’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to Depositary as fees and charges, but not including reimbursable expenses; provided, however, that the limitation of liability set forth in this sentence shall not apply to any act or omission of the Depositary constituting recklessness, willful misconduct, bad faith, or fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series A Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be reasonably required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series A Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series A Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series A Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation under this Deposit Agreement to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series D Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be furnished as often as may be requiredincurred. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it under this Deposit Agreement in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series D Preferred Stock for deposit, any holder Holder of a Receipt or any other person reasonably believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series D Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series D Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Samples: Deposit Agreement (Keycorp /New/)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series K Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series K Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series K Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series K Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Samples: Deposit Agreement (PNC Financial Services Group Inc)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Transfer Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other Person other than for its gross negligence or negligence, willful misconduct, bad faith or fraud (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if that party has been advised of or has foreseen the possibility of such damages and regardless of the form of action. Notwithstanding anything contained herein to the contrary, the Depositary’s, any Depositary’s Agent, Registrar’s or Transfer Agent’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to Depositary as fees and charges, but not including reimbursable expenses. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series C Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be reasonably required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series C Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series C Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar and Transfer Agent shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit AgreementAgreement (or as may subsequently be agreed to in writing by the parties), and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or any Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series C Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary it hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction. In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holders of Receipts, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification set forth in Section 5.6 hereof in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, under this Deposit Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken, suffered or omitted to be taken by them in reliance upon any instructions from the Corporation or any holder upon the advice or opinion of Receipts, for any action taken by it in accordance with the written instruction such counsel. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, Depositary nor the any Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series F Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series F Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation (including each of their officers, directors and employees) against any liability which may directly arise out of acts performed or omitted by the Depositary or any Depositary Agent due to its gross negligence or willful misconducttheir negligence, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreementbad faith. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series F Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, Agents and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series F Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, or the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder Holder of Receipts, Receipts for any action taken by it in accordance with the written instruction of the CorporationCorporation or the Holders of Receipts.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. The Corporation does not assume any obligation and shall not be subject to any liability under this Agreement or any Receipt to holders of Receipts other than other than for its gross negligence, willful misconduct or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation any Transfer Agent assumes any obligation or shall be subject to any liability to any person under this Deposit Agreement to holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, the Depositary’s, any Depositary’s Agent, Registrar’s or Transfer Agent’s aggregate liability under this Agreement with respect to, arising from or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amount of fees paid hereunder by the Corporation to the Depositary pursuant to this Agreement during the twelve (12) months immediately preceding the event for which recovery from the Depositary is sought, but not including reimbursable expenses. Notwithstanding anything in this Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if they have been advised of the likelihood of such loss or damage and regardless of the form of action. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be reasonably required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice or opinion of legal counsel or accountantsaccountants in the absence of bad faith on its part, or information from any person presenting Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is does not due to the arise from bad faith, gross negligence, willful misconduct or gross negligence fraud (each as determined by a final non-appealable judgment of the Depositarya court of competent jurisdiction). The Depositary undertakes, and any Registrar and Transfer Agent shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or any Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary it hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, each of the Depositary Depositary, the Depositary’s Agent, any Xxxxxxxxx or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction , as long as any such non-action is not taken in fraud, willful misconduct, gross negligence or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holders of Receipts, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification agreed to in writing between the Depositary and the Corporation in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent under this Agreement. In addition, at any time, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary with respect to any matter arising in connection with the services to be performed by the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, under this Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken, suffered or omitted to be taken by them in reliance upon any instructions from the Corporation or any holder upon the advice or opinion of Receiptssuch counsel, for any action taken by it in accordance with the written instruction absence of bad faith on their part. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 1 contract
Samples: Deposit Agreement (At&t Inc.)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconductfraud. Notwithstanding anything in this Deposit Agreement to the contrary, neither None of the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series E Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense reasonable out-of-pocket expenses and liability be furnished as often as may be requiredincurred. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be liable for any action or any failure to act by it in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series E Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote or provide written consent with respect to any of the shares of Series E Preferred Stock or for the manner or effect of any such vote or written consent made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, its parent, affiliates or subsidiaries, the Depositary’s Agents, and any the Registrar may own own, buy, sell and deal in any class of securities of the Corporation and its affiliates and in ReceiptsReceipts or Depositary Shares or become pecuniarily interested in any transaction in which the Corporation or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary, parent, affiliate or subsidiary or Depositary’s Agent or Registrar hereunder. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series E Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or willful misconduct, fraud or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if that party has been advised of or has foreseen the possibility of such damages, other than for its gross negligence, willful misconduct or bad faith. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series D Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series D Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series D Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series D Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. Notwithstanding anything contained herein to the contrary, excluding the Depositary’s willful misconduct, fraud or bad faith, the Depositary’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not be liable to exceed, the amounts paid hereunder by the Corporation or any holder of Receiptsto Depositary as fees and charges, but not including reimbursable expenses during the twelve (12) months immediately preceding the event for any action taken by it in accordance with the written instruction which recovery from Depositary is being sought. The rights and obligations of the Corporationparties under this Section 5.3 shall survive any resignation or succession of any Depositary, Registrar or Depositary’s Agent and the termination of this Deposit Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation assumes any obligation or shall be subject to any liability to any Person under this Deposit Agreement to holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s, any Depositary’s Agent’s, Registrar’s or Transfer Agent’s gross negligence, willful misconduct or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction), the Depositary’s, any Depositary’s Agent, Registrar’s or Transfer Agent’s aggregate liability under this Agreement with respect to, arising from or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to the Depositary as fees and charges but in no event exceeding an aggregate amount of twenty-five thousand dollars ($25,000), but not including reimbursable expenses. Notwithstanding anything in this Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if they have been advised of the likelihood of such loss or damage and regardless of the form of action. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be reasonably required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice or opinion of legal counsel or accountants, in the absence of bad faith on its part, or information from any person presenting Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is does not due to the willful misconduct or arise from bad faith, gross negligence of the Depositaryor willful misconduct. The Depositary undertakes, and any Registrar and Transfer Agent shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or any Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary it hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, each of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction. In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holders of Receipts, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification set forth in Section 5.6 hereof in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary under this Agreement. In addition, at any time, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary with respect to any matter arising in connection with the services to be performed by the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, under this Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken, suffered or omitted to be taken by them in reliance upon any instructions from the Corporation or any holder upon the advice or opinion of Receiptssuch counsel, for any action taken by it in accordance with the written instruction absence of bad faith on their part. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other person or entity other than for its gross negligence, willful misconduct, bad faith or fraud (in each case as determined by a final non-appealable judgment of a court of competent jurisdiction). The Corporation shall not assume any obligation nor shall be subject to any liability under this Deposit Agreement to Holders of Receipts other than for its gross negligence or negligence, willful misconduct, bad faith or fraud (in each case as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Notwithstanding anything contained herein to the contrary, the Depositary’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amount of fees paid by the Company to the Depositary pursuant to this Deposit Agreement during the twelve (12) months immediately preceding the event for which recovery from the Depositary, but not including reimbursable expenses; provided, however, that the limitation of liability set forth in this sentence shall not apply to any act or omission of the Depositary constituting recklessness, willful misconduct, bad faith, or fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series P Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. No provision of this Deposit Agreement shall require the Depositary to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it believes that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series P Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good the absence of bad faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against may execute and exercise any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents, and the Depositary shall not be liable answerable or accountable for the acts any act, omission, default, neglect or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement attorneys or otherwise, the Depositary’s aggregate liability agents or for any loss to the Corporation, to the Holders of the Receipts or any of the Corporation’s representatives other person or agentsentity resulting from any such act, under this Section 5.3omission, default, neglect or under any other term or provision of this Agreementmisconduct, whether in contractabsent gross negligence, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation bad faith in the preceding sentence will selection and continued employment thereof (which gross negligence, willful misconduct or bad faith must be applicable only to claims arising out determined by a final, non-appealable judgment of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreementa court of competent jurisdiction). The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series P Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence taken in bad faith (as determined by a final, non-appealable decision of the Depositarya court of competent jurisdiction). The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series P Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary hereunder. In addition, at any time the Depositary may apply to any officer of the Corporation for instruction with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and Depositary’s Agents shall not be liable and shall be indemnified by the Corporation for any action taken or omitted by the Depositary in reliance upon any Corporation instructions. The Depositary shall not be liable held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation Corporation. The Depositary may rely on and be fully authorized and protected in acting or failing to act upon (a) any guaranty of signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable “signature guarantee program” or insurance program in addition to, or in substitution for, the foregoing; or (b) any law, act, regulation or any holder of Receipts, for any action taken by it in accordance with the written instruction interpretation of the Corporationsame even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other person or entity other than for its gross negligence, willful misconduct, bad faith or fraud (in each case as determined by a final non-appealable judgment of a court of competent jurisdiction). The Corporation shall not assume any obligation nor shall be subject to any liability under this Deposit Agreement to Holders of Receipts other than for its gross negligence or negligence, willful misconduct, bad faith or fraud (in each case as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Notwithstanding anything contained herein to the contrary, the Depositary’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amount of fees paid by the Company to the Depositary pursuant to this Deposit Agreement during the twelve (12) months immediately preceding the event for which recovery from the Depositary, but not including reimbursable expenses; provided, however, that the limitation of liability set forth in this sentence shall not apply to any act or omission of the Depositary constituting recklessness, willful misconduct, bad faith, or fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series Q Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. No provision of this Deposit Agreement shall require the Depositary to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it believes that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series Q Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good the absence of bad faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against may execute and exercise any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents, and the Depositary shall not be liable answerable or accountable for the acts any act, omission, default, neglect or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement attorneys or otherwise, the Depositary’s aggregate liability agents or for any loss to the Corporation, to the Holders of the Receipts or any of the Corporation’s representatives other person or agentsentity resulting from any such act, under this Section 5.3omission, default, neglect or under any other term or provision of this Agreementmisconduct, whether in contractabsent gross negligence, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation bad faith in the preceding sentence will selection and continued employment thereof (which gross negligence, willful misconduct or bad faith must be applicable only to claims arising out determined by a final, non-appealable judgment of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreementa court of competent jurisdiction). The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series Q Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence taken in bad faith (as determined by a final, non-appealable decision of the Depositarya court of competent jurisdiction). The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series Q Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary hereunder. In addition, at any time the Depositary may apply to any officer of the Corporation for instruction with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and Depositary’s Agents shall not be liable and shall be indemnified by the Corporation for any action taken or omitted by the Depositary in reliance upon any Corporation instructions. The Depositary shall not be liable held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation Corporation. The Depositary may rely on and be fully authorized and protected in acting or failing to act upon (a) any guaranty of signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable “signature guarantee program” or insurance program in addition to, or in substitution for, the foregoing; or (b) any law, act, regulation or any holder of Receipts, for any action taken by it in accordance with the written instruction interpretation of the Corporationsame even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Transfer Agent nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other Person other than for its gross negligence negligence, willful misconduct or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s fraud, recklessness, willful misconductmisconduct or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction), the Depositary’s, any Depositary’s Agent, Registrar’s or Transfer Agent’s aggregate liability under this Deposit Agreement with respect to, arising from or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if they have been advised of the likelihood of such loss or damage and regardless of the form of action. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series C Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon (i) the written advice of legal counsel or accountants, accountants or (ii) information from any person Person presenting Series C Preferred Stock for deposit, any holder Holder of a Receipt or any other person Person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series C Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the result of the Depositary’s gross negligence, willful misconduct or gross negligence bad faith (each as determined by a final non-appealable judgment of the Depositarya court of competent jurisdiction). The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or any Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series C Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent reasonably believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary it hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall reasonably deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person Person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by a duly authorized officer of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction. In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holder of a Receipt, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification set forth in Section 5.7 hereof in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary with respect to any matter arising in connection with the services to be performed by the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, under this Deposit Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken, suffered or omitted to be taken by them in reliance upon any written instructions from the Corporation or any holder upon the advice or opinion of Receipts, for any action taken by it in accordance with the written instruction such counsel. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any Person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or willful misconduct, fraud or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including including, but not limited to to, lost profits) even if that party has been advised of or has foreseen the possibility of such damages, other than for its gross negligence, willful misconduct or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series A Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series A Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconductDepositary, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited toAgents, and shall not exceed in any circumstancesRegistrar, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series A Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliatesaffiliates or act in any other capacity for the Corporation or its Affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series A Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. It is intended that the Depositary shall not be deemed to be an “issuer” of the securities under the federal securities laws or applicable state securities laws, it being expressly understood and agreed that the Depositary is acting only in a ministerial capacity as Depositary for the deposited Series A Preferred Stock. The Depositary will not be under any duty or responsibility to ensure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of the Receipts, the shares of Series A Preferred Stock or Depositary Shares. The Depositary assumes no responsibility for the correctness of the description that appears in the Receipts. Notwithstanding any other provision herein or in the Receipts, the Depositary makes no warranties or representations as to the validity or genuineness of the Series A Preferred Stock at any time deposited with the Depositary hereunder or of the Depositary Shares, as to the validity or sufficiency of this Deposit Agreement (except as to due authorization and due execution by the Depositary), as to the value of the Depositary Shares or as to any right, title or interest of the record holders of Receipts in and to the Depositary Shares; nor shall the Depositary be liable or responsible for any failure of the Corporation to comply with any of its obligations relating to any registration statement filed with the U.S. Securities and Exchange Commission, including without limitation obligations under applicable regulation or law, or as to the correctness of any statement made in any such registration statement. The Depositary shall not be liable accountable for the use or application by the Corporation of the Depositary Shares or the Receipts or the proceeds thereof. From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. Neither the Depositary, any Depositary’s Agent nor any Registrar shall be required to take notice or be deemed to have notice of any event or condition hereunder, including any event or condition that may require action by any such Person, unless such Person shall be notified in writing of such event or condition by the relevant party, and all notices or other instruments required by this Deposit Agreement to be delivered to such Persons must, in order to be effective, be given in reasonable compliance with Section 7.4 hereof, and in the absence of such notice so delivered, such Persons may conclusively assume no such event or condition exists. Neither the Depositary, any Depositary’s Agent nor any Registrar shall have any obligation to (a) make payment hereunder unless the Corporation shall have provided the necessary or other immediately available funds or securities or property, as the case may be, to pay in full amounts due and payable with respect thereto; or (b) take any legal or other action hereunder if it determines that the taking of such action might subject or expose it to any expense or liability, unless it shall have been furnished with an indemnity satisfactory to it. Notwithstanding anything contained herein to the contrary, excluding the Depositary’s willful misconduct, fraud or bad faith, the Depositary’s aggregate liability with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation or any holder of Receiptsto the Depositary as fees and charges, but not including reimbursable expenses during the twelve (12) months immediately preceding the event for any action taken by it in accordance with which recovery from the written instruction Depositary is being sought. The rights and obligations of the Corporationparties under this Section 5.3 shall survive any replacement, removal, resignation or succession of any Depositary, Registrar or Depositary’s Agent and the termination of this Deposit Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or willful misconduct, fraud or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if that party has been advised of or has foreseen the possibility of such damages, other than for its gross negligence, willful misconduct or bad faith. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series C Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series C Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series C Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series C Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. Notwithstanding anything contained herein to the contrary, excluding the Depositary’s willful misconduct, fraud or bad faith, the Depositary’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not be liable to exceed, the amounts paid hereunder by the Corporation or any holder of Receiptsto Depositary as fees and charges, but not including reimbursable expenses during the twelve (12) months immediately preceding the event for any action taken by it in accordance with the written instruction which recovery from Depositary is being sought. The rights and obligations of the Corporationparties under this Section 5.3 shall survive any resignation or succession of any Depositary, Registrar or Depositary’s Agent and the termination of this Deposit Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or negligence, willful misconduct, bad faith or fraud. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation Corporation, shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Notwithstanding anything contained herein to the contrary, the Depositary’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all Services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to Depositary as fees and charges, but not including reimbursable expenses; provided, however, that the limitation of liability set forth in this sentence shall not apply to any act or omission of the Depositary constituting recklessness, willful misconduct, bad faith, or fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series C Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series C Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series C Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. taken in bad faith, The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series C Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary terms of this Section 5.3 shall not be liable to survive termination of this Deposit Agreement or the Corporation resignation or any holder of Receipts, for any action taken by it in accordance with the written instruction removal of the CorporationDepositary.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Transfer Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other Person other than for its gross negligence or negligence, willful misconduct, bad faith or fraud (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if that party has been advised of or has foreseen the possibility of such damages and regardless of the form of action. Notwithstanding anything contained herein to the contrary, the Depositary’s, any Depositary’s Agent, Registrar’s or Transfer Agent’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to Depositary as fees and charges, but not including reimbursable expenses. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series B Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be reasonably required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series B Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series B Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar and Transfer Agent shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit AgreementAgreement (or as may subsequently be agreed to in writing by the parties), and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or any Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series B Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary it hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction. In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holders of Receipts, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification set forth in Section 5.6 hereof in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, under this Deposit Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken, suffered or omitted to be taken by them in reliance upon any instructions from the Corporation or any holder upon the advice or opinion of Receipts, for any action taken by it in accordance with the written instruction such counsel. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series M Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series M Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series M Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series M Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Samples: Deposit Agreement (Us Bancorp \De\)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other person or entity other than for its gross negligence, willful misconduct, bad faith or fraud (in each case as determined by a final non-appealable judgment of a court of competent jurisdiction). The Corporation shall not assume any obligation nor shall be subject to any liability under this Deposit Agreement to Holders of Receipts other than for its gross negligence or negligence, willful misconduct, bad faith or fraud (in each case as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Notwithstanding anything contained herein to the contrary, the Depositary’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amount of fees paid by the Company to the Depositary pursuant to this Deposit Agreement during the twelve (12) months immediately preceding the event for which recovery from the Depositary, but not including reimbursable expenses; provided, however, that the limitation of liability set forth in this sentence shall not apply to any act or omission of the Depositary constituting recklessness, willful misconduct, bad faith, or fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series R Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. No provision of this Deposit Agreement shall require the Depositary to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it believes that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series R Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good the absence of bad faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against may execute and exercise any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The rights or powers hereby vested in it or perform any duty hereunder either itself or by or through its attorneys or agents, and the Depositary shall not be liable answerable or accountable for the acts any act, omission, default, neglect or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement attorneys or otherwise, the Depositary’s aggregate liability agents or for any loss to the Corporation, to the Holders of the Receipts or any of the Corporation’s representatives other person or agentsentity resulting from any such act, under this Section 5.3omission, default, neglect or under any other term or provision of this Agreementmisconduct, whether in contractabsent gross negligence, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation bad faith in the preceding sentence will selection and continued employment thereof (which gross negligence, willful misconduct or bad faith must be applicable only to claims arising out determined by a final, non-appealable judgment of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreementa court of competent jurisdiction). The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series R Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence taken in bad faith (as determined by a final, non-appealable decision of the Depositarya court of competent jurisdiction). The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series R Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary hereunder. In addition, at any time the Depositary may apply to any officer of the Corporation for instruction with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and Depositary’s Agents shall not be liable and shall be indemnified by the Corporation for any action taken or omitted by the Depositary in reliance upon any Corporation instructions. The Depositary shall not be liable held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation Corporation. The Depositary may rely on and be fully authorized and protected in acting or failing to act upon (a) any guaranty of signature by an “eligible guarantor institution” that is a member or participant in the Securities Transfer Agents Medallion Program or other comparable “signature guarantee program” or insurance program in addition to, or in substitution for, the foregoing; or (b) any law, act, regulation or any holder of Receipts, for any action taken by it in accordance with the written instruction interpretation of the Corporationsame even though such law, act, or regulation may thereafter have been altered, changed, amended or repealed.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or willful misconduct, fraud or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including including, but not limited to to, lost profits)) even if that party has been advised of or has foreseen the possibility of such damages, other than for its gross negligence, willful misconduct or bad faith. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series J Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series J Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series J Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series J Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. Notwithstanding anything contained herein to the contrary, excluding the Depositary’s willful misconduct, fraud or bad faith, the Depositary’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not be liable exceed, the amounts paid hereunder by the Corporation to the Corporation or any holder of ReceiptsDepositary as fees and charges, but not including reimbursable expenses during the twelve (12) months immediately preceding the event for any action taken by it in accordance with which recovery from the written instruction Depositary is being sought. The rights and obligations of the Corporationparties under this Section 5.3 shall survive any resignation or succession of any Depositary, Registrar or Depositary’s Agent and the termination of this Deposit Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series C Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series C Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series C Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series C Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and its agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken or omitted by the Depositary in reliance upon any instructions from the Corporation or upon the advice or opinion of such counsel. The Depositary shall not be liable held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction Corporation. The rights and obligations of the Corporationparties under this Section 5.3 shall survive termination of this Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or willful misconduct, fraud or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including including, but not limited to to, lost profits)) even if that party has been advised of or has foreseen the possibility of such damages, other than for its gross negligence, willful misconduct or bad faith. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series H Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series H Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series H Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series H Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. Notwithstanding anything contained herein to the contrary, excluding the Depositary’s willful misconduct, fraud or bad faith, the Depositary’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not be liable exceed, the amounts paid hereunder by the Corporation to the Corporation or any holder of ReceiptsDepositary as fees and charges, but not including reimbursable expenses during the twelve (12) months immediately preceding the event for any action taken by it in accordance with which recovery from the written instruction Depositary is being sought. The rights and obligations of the Corporationparties under this Section 5.3 shall survive any resignation or succession of any Depositary, Registrar or Depositary’s Agent and the termination of this Deposit Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. The Corporation does not assume any obligation and shall not be subject to any liability under this Agreement or any Receipt to holders of Receipts other than other than for its gross negligence, willful misconduct or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation any Transfer Agent assumes any obligation or shall be subject to any liability to any person under this Deposit Agreement to holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, the Depositary’s, any Depositary’s Agent, Registrar’s or Transfer Agent’s aggregate liability under this Agreement with respect to, arising from or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amount of fees paid hereunder by the Corporation to the Depositary pursuant to this Agreement during the twelve (12) months immediately preceding the event for which recovery from the Depositary is sought, but not including reimbursable expenses. Notwithstanding anything in this Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if they have been advised of the likelihood of such loss or damage and regardless of the form of action. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be reasonably required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice or opinion of legal counsel or accountantsaccountants in the absence of bad faith on its part, or information from any person presenting Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is does not due to the arise from bad faith, gross negligence, willful misconduct or gross negligence fraud (each as determined by a final non-appealable judgment of the Depositarya court of competent jurisdiction). The Depositary undertakes, and any Registrar and Transfer Agent shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or any Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary it hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, each of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction, as long as any such non-action is not taken in fraud, willful misconduct, gross negligence or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holders of Receipts, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification agreed to in writing between the Depositary and the Corporation in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent under this Agreement. In addition, at any time, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary with respect to any matter arising in connection with the services to be performed by the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, under this Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken, suffered or omitted to be taken by them in reliance upon any instructions from the Corporation or any holder upon the advice or opinion of Receiptssuch counsel, for any action taken by it in accordance with the written instruction absence of bad faith on their part. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 1 contract
Samples: Deposit Agreement (At&t Inc.)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Transfer Agent nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other Person other than for its gross negligence negligence, willful misconduct or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s fraud, recklessness, willful misconductmisconduct or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction), the Depositary’s, any Depositary’s Agent, Registrar’s or Transfer Agent’s aggregate liability under this Deposit Agreement with respect to, arising from or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if they have been advised of the likelihood of such loss or damage and regardless of the form of action. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series D Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon (i) the written advice of legal counsel or accountants, accountants or (ii) information from any person Person presenting Series D Preferred Stock for deposit, any holder Holder of a Receipt or any other person Person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series D Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the result of the Depositary’s gross negligence, willful misconduct or gross negligence bad faith (each as determined by a final non-appealable judgment of the Depositarya court of competent jurisdiction). The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or any Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series D Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent reasonably believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary it hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall reasonably deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person Person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by a duly authorized officer of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction. In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holder of a Receipt, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification set forth in Section 5.7 hereof in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary with respect to any matter arising in connection with the services to be performed by the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, under this Deposit Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken, suffered or omitted to be taken by them in reliance upon any written instructions from the Corporation or any holder upon the advice or opinion of Receipts, for any action taken by it in accordance with the written instruction such counsel. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any Person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s willful misconductmisconduct or bad faith, the Depositary’s aggregate liability under this Deposit Agreement with respect to, arising from or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series S Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series S Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series S Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series S Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, Company may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of Company for instruction, and may consult with legal counsel for the Depositary or Company with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by the Depositary in reliance upon any Company instructions or upon the advice or opinion of such counsel. The Depositary shall not be liable held to have notice of any change of authority of any person, until receipt of written notice thereof from Company. The rights and obligations of the Corporation Depositary set forth in this Section 5.3 shall survive termination of this Deposit Agreement or any holder resignation or succession of Receiptsany Depositary, for any action taken by it in accordance with the written instruction of the CorporationRegistrar or Depositary’s Agent.
Appears in 1 contract
Samples: Deposit Agreement (PNC Financial Services Group, Inc.)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or willful misconduct, fraud or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including including, but not limited to to, lost profits) even if that party has been advised of or has foreseen the possibility of such damages, other than for its gross negligence, willful misconduct or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series B Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series B Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconductDepositary, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited toAgents, and shall not exceed in any circumstancesRegistrar, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series B Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliatesaffiliates or act in any other capacity for the Corporation or its Affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series B Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. It is intended that the Depositary shall not be deemed to be an “issuer” of the securities under the federal securities laws or applicable state securities laws, it being expressly understood and agreed that the Depositary is acting only in a ministerial capacity as Depositary for the deposited Series B Preferred Stock. The Depositary will not be under any duty or responsibility to ensure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of the Receipts, the shares of Series B Preferred Stock or Depositary Shares. The Depositary assumes no responsibility for the correctness of the description that appears in the Receipts. Notwithstanding any other provision herein or in the Receipts, the Depositary makes no warranties or representations as to the validity or genuineness of the Series B Preferred Stock at any time deposited with the Depositary hereunder or of the Depositary Shares, as to the validity or sufficiency of this Deposit Agreement (except as to due authorization and due execution by the Depositary), as to the value of the Depositary Shares or as to any right, title or interest of the record holders of Receipts in and to the Depositary Shares; nor shall the Depositary be liable or responsible for any failure of the Corporation to comply with any of its obligations relating to any registration statement filed with the U.S. Securities and Exchange Commission, including without limitation obligations under applicable regulation or law, or as to the correctness of any statement made in any such registration statement. The Depositary shall not be liable accountable for the use or application by the Corporation of the Depositary Shares or the Receipts or the proceeds thereof. From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. Neither the Depositary, any Depositary’s Agent nor any Registrar shall be required to take notice or be deemed to have notice of any event or condition hereunder, including any event or condition that may require action by any such Person, unless such Person shall be notified in writing of such event or condition by the relevant party, and all notices or other instruments required by this Deposit Agreement to be delivered to such Persons must, in order to be effective, be given in reasonable compliance with Section 7.4 hereof, and in the absence of such notice so delivered, such Persons may conclusively assume no such event or condition exists. Neither the Depositary, any Depositary’s Agent nor any Registrar shall have any obligation to (a) make payment hereunder unless the Corporation shall have provided the necessary or other immediately available funds or securities or property, as the case may be, to pay in full amounts due and payable with respect thereto; or (b) take any legal or other action hereunder if it determines that the taking of such action might subject or expose it to any expense or liability, unless it shall have been furnished with an indemnity satisfactory to it. Notwithstanding anything contained herein to the contrary, excluding the Depositary’s willful misconduct, fraud or bad faith, the Depositary’s aggregate liability with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation or any holder of Receiptsto the Depositary as fees and charges, but not including reimbursable expenses during the twelve (12) months immediately preceding the event for any action taken by it in accordance with which recovery from the written instruction Depositary is being sought. The rights and obligations of the Corporationparties under this Section 5.3 shall survive any replacement, removal, resignation or succession of any Depositary, Registrar or Depositary’s Agent and the termination of this Deposit Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or willful misconduct, fraud or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if that party has been advised of or has foreseen the possibility of such damages, other than for its gross negligence, willful misconduct or bad faith. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series E Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series E Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series E Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series E Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. Notwithstanding anything contained herein to the contrary, excluding the Depositary’s willful misconduct, fraud or bad faith, the Depositary’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not be liable to exceed, the amounts paid hereunder by the Corporation or any holder of Receiptsto Depositary as fees and charges, but not including reimbursable expenses during the twelve (12) months immediately preceding the event for any action taken by it in accordance with the written instruction which recovery from Depositary is being sought. The rights and obligations of the Corporationparties under this Section 5.3 shall survive any resignation or succession of any Depositary, Registrar or Depositary’s Agent and the termination of this Deposit Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Transfer Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other Person other than for its gross negligence or negligence, willful misconduct, bad faith or fraud (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if that party has been advised of or has foreseen the possibility of such damages and regardless of the form of action. Notwithstanding anything contained herein to the contrary, the Depositary’s, any Depositary’s Agent, Registrar’s or Transfer Agent’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to Depositary as fees and charges, but not including reimbursable expenses. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series D Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be reasonably required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series D Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series D Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar and Transfer Agent shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit AgreementAgreement (or as may subsequently be agreed to in writing by the parties), and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or any Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series D Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary it hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction. In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holders of Receipts, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification set forth in Section 5.6 hereof in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, under this Deposit Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken, suffered or omitted to be taken by them in reliance upon any instructions from the Corporation or any holder upon the advice or opinion of Receipts, for any action taken by it in accordance with the written instruction such counsel. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its willful misconduct or gross negligence or willful misconduct(each as determined by a final, non-appealable judgment by a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if that party has been advised of or has foreseen the possibility of such damages. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series D Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series D Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series D Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the DepositaryDepositary (each as determined by a final, non-appealable judgment from a court of competent jurisdiction). The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series D Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. Notwithstanding anything contained herein to the contrary, the Depositary’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not be liable to exceed, the amounts paid hereunder by the Corporation or any holder of Receiptsto Depositary as fees and charges, but not including reimbursable expenses during the twelve (12) months immediately preceding the event for any action taken by it in accordance with the written instruction which recovery from Depositary is being sought. The rights and obligations of the Corporationparties under this Section 5.3 shall survive any resignation or succession of any Depositary, Registrar or Depositary’s Agent and the termination of this Deposit Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconduct. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series F Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be furnished as often as may be requiredincurred. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series F Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series F Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, its parent, affiliates or subsidiaries, the Depositary’s Agents, and any the Registrar may own own, buy, sell and deal in any class of securities of the Corporation and its affiliates and in ReceiptsReceipts or Depositary Shares or become pecuniarily interested in any transaction in which the Corporation or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary, parent, affiliate or subsidiary or Depositary’s Agent or Registrar hereunder. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series F Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or willful misconduct, fraud or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if that party has been advised of or has foreseen the possibility of such damages, other than for its gross negligence, willful misconduct or bad faith. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series F Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series F Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series F Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series F Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. Notwithstanding anything contained herein to the contrary, excluding the Depositary’s willful misconduct, fraud or bad faith, the Depositary’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not be liable to exceed, the amounts paid hereunder by the Corporation or any holder of Receiptsto Depositary as fees and charges, but not including reimbursable expenses during the twelve (12) months immediately preceding the event for any action taken by it in accordance with the written instruction which recovery from Depositary is being sought. The rights and obligations of the Corporationparties under this Section 5.3 shall survive any resignation or succession of any Depositary, Registrar or Depositary’s Agent and the termination of this Deposit Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other Person other than for its gross negligence negligence, willful misconduct or willful misconductbad faith (each as determined by the final, non-appealable order of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if it has been advised of the likelihood of such loss or damage. Notwithstanding anything in this Agreement to the contrary, the Depositary’s liability under this Agreement will be limited to the amount of fees paid the Depositary pursuant hereto. The provisions of this paragraph shall survive the termination of this Agreement and/or the replacement of the Depositary. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series C Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. The provisions of this paragraph shall survive the termination of this Agreement and/or the replacement of the Depositary. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice or opinion of legal counsel or accountants of its own selection, which legal counsel or accountants may be counsel or accountants, respectively, to one or more of the parties to this Agreement, or information from any person presenting Series C Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconductnegligence, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence bad faith (each as determined by the final, non-appealable order of a court of competent jurisdiction). The provisions of this paragraph shall survive the termination of this Agreement and/or the replacement of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series C Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to taken in bad faith (as determined by the willful misconduct or gross negligence final, non-appealable order of the Depositarya court of competent jurisdiction). The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are expressly and specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. Notwithstanding anything herein to the contrary, no provision of this Agreement shall require the Depositary to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of its rights if there shall be reasonable grounds for believing that repayment of such funds or adequate indemnification against such risk or liability is not reasonably assured to it. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series C Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or willful misconductbad faith (each as determined in a final, non-appealable opinion by a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s gross negligence, willful misconduct or bad faith (each as determined in a final, non-appealable opinion by a court of competent jurisdiction), the Depositary’s aggregate liability under this Agreement with respect to, arising from or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence taken in bad faith (such bad faith as determined in a final, non-appealable opinion by a court of the Depositarycompetent jurisdiction). The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Agreement. The Depositary and its agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken or omitted by the Depositary in reliance upon any instructions from the Corporation or upon the advice or opinion of such counsel. The Depositary shall not be liable held to the Corporation or have notice of any holder change of Receiptsauthority of any person, for any action taken by it in accordance with the until receipt of written instruction of the notice thereof from Corporation.
Appears in 1 contract
Samples: Deposit Agreement (Allstate Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s gross negligence, willful misconductmisconduct or bad faith, the Depositary’s aggregate liability under this Deposit Agreement with respect to, arising from or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series C Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series C Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series C Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series C Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary Depositary, or Computershare, as applicable, shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, Company may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of Company for instruction, and may consult with legal counsel for the Depositary or Company with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by the Depositary in reliance upon any Company instructions or upon the advice or opinion of such counsel. The Depositary shall not be liable held to the Corporation or have notice of any holder change of Receiptsauthority of any person, for any action taken by it in accordance with the until receipt of written instruction notice thereof from Company. The rights and obligations of the Corporationparties under this Section 5.3 shall survive termination of this Agreement.
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence or negligence, willful misconduct, bad faith or fraud. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Notwithstanding anything contained herein to the contrary, the Depositary’s aggregate liability during any term of this Deposit Agreement with respect to, arising from, or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to Depositary as fees and charges, but not including reimbursable expenses; provided, however, that the limitation of liability set forth in this sentence shall not apply to any act or omission of the Depositary constituting recklessness, willful misconduct, bad faith, or fraud. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series H Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series H Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series H Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series H Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Corporation or any holder of Receipts, for any action taken by it in accordance with the written instruction of the Corporation.
Appears in 1 contract
Samples: Deposit Agreement (Bb&t Corp)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, intentional misconduct, bad faith or willful misconductfraud. Notwithstanding anything in this Deposit Agreement to the contrary, neither None of the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series A Preferred Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense reasonable out-of-pocket expenses and liability be furnished as often as may be requiredincurred. Neither None of the Depositary nor Depositary, any Depositary’s Agent nor Agent, any Registrar nor or the Corporation shall be liable for any action or any failure to act by it in reasonable good faith reliance upon the written advice of legal counsel or accountants, or information from any person presenting the Series A Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote or provide written consent with respect to any of the shares of the Series A Preferred Stock or for the manner or effect of any such vote or written consent made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth taken in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrarbad faith. The Depositary, its parent, affiliates or subsidiaries, the Depositary’s Agents, and any the Registrar may own own, buy, sell and deal in any class of securities of the Corporation and its affiliates and in ReceiptsReceipts or Depositary Shares or become pecuniarily interested in any transaction in which the Corporation or its affiliates may be interested or contract with or lend money to or otherwise act as fully or as freely as if it were not the Depositary, parent, affiliate or subsidiary or Depositary’s Agent or Registrar hereunder. The Depositary may also act as trustee, transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series A Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, in its reasonable judgment, believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The Depositary terms of this Section 5.3 shall not be liable to survive the Corporation termination of this Deposit Agreement and any succession of any Depositary, Registrar or any holder of ReceiptsDepositary’s Agent, for any action taken by it in accordance with the written instruction of the CorporationSection 5.4.
Appears in 1 contract
Samples: Deposit Agreement (Global Geophysical Services Inc)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Transfer Agent nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts or any other Person other than for its gross negligence negligence, willful misconduct or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s fraud, recklessness, willful misconductmisconduct or bad faith (each as determined by a final non-appealable judgment of a court of competent jurisdiction), the Depositary’s, any Depositary’s Agent, Registrar’s or Transfer Agent’s aggregate liability under this Deposit Agreement with respect to, arising from or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Corporation to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits), even if they have been advised of the likelihood of such loss or damage and regardless of the form of action. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor any Transfer Agent nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series E Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity reasonably satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon (i) the written advice of legal counsel or accountants, accountants or (ii) information from any person Person presenting Series E Preferred Stock for deposit, any holder Holder of a Receipt or any other person Person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar or Transfer Agent and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series E Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the result of the Depositary’s gross negligence, willful misconduct or gross negligence bad faith (each as determined by a final non-appealable judgment of the Depositarya court of competent jurisdiction). The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any RegistrarRegistrar or any Transfer Agent. The Depositary, the Depositary’s Agents, and any Registrar or Transfer Agent may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series E Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent reasonably believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary it hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent shall reasonably deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person Person or entity for refraining from taking such action, unless the Depositary Depositary, the Depositary’s Agent, the Registrar or Transfer Agent, as applicable, receives written instructions or a certificate signed by a duly authorized officer of the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary Depositary, the Depositary’s Agent, any Registrar or any Transfer Agent or which proves or establishes the applicable matter to its satisfaction. In the satisfaction event the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall receive conflicting claims, requests or instructions from any Holder of a Receipt, on the one hand, and the Corporation, on the other hand, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent, shall be entitled to act on such claims, requests or instructions received from the Corporation, and shall be entitled to the indemnification set forth in Section 5.7 hereof in connection with any action so taken. From time to time, the Corporation may provide the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary with respect to any matter arising in connection with the services to be performed by the Depositary, Depositary’s Agent, Registrar or Transfer Agent, as applicable, under this Deposit Agreement. The Depositary Depositary, Depositary’s Agent, Registrar, Transfer Agent and their respective agents and subcontractors shall not be liable and shall be indemnified by the Corporation for any action taken, suffered or omitted to be taken by them in reliance upon any written instructions from the Corporation or any holder upon the advice or opinion of Receipts, for any action taken by it in accordance with the written instruction such counsel. None of the Depositary, any Depositary’s Agent, any Registrar or any Transfer Agent shall be held to have notice of any change of authority of any Person, until receipt of written notice thereof from the Corporation.. The Depositary, any Depositary’s Agent, Transfer Agent, and Registrar hereunder:
Appears in 1 contract
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its gross negligence negligence, willful misconduct or bad faith. Notwithstanding anything in this Deposit Agreement to the contrary, excluding the Depositary’s willful misconductmisconduct or bad faith, the Depositary’s aggregate liability under this Deposit Agreement with respect to, arising from or arising in connection with this Deposit Agreement, or from all services provided or omitted to be provided under this Deposit Agreement, whether in contract, tort, or otherwise, is limited to, and shall not exceed, the amounts paid hereunder by the Company to the Depositary as fees and charges, but not including reimbursable expenses. Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits). Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series Q Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series Q Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series Q Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the Depositarytaken in bad faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Series Q Preferred Stock nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. From time to time, Company may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of Company for instruction, and may consult with legal counsel for the Depositary or Company with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. The Depositary and its agents and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by the Depositary in reliance upon any Company instructions or upon the advice or opinion of such counsel. The Depositary shall not be liable held to the Corporation or have notice of any holder change of Receiptsauthority of any person, for any action taken by it in accordance with the until receipt of written instruction of the Corporationnotice thereof from Company.
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Samples: Deposit Agreement (PNC Financial Services Group, Inc.)
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Corporation. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders Holders of Receipts other than for its willful misconduct or gross negligence or willful misconduct(each as determined by a final, non-appealable judgment by a court of competent jurisdiction). Notwithstanding anything in this Deposit Agreement to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Corporation shall be liable in any event for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including but not limited to lost profits)) even if that party has been advised of or has foreseen the possibility of such damages. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Series C Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary’s Agent nor any Registrar nor the Corporation shall be liable for any action or any failure to act by it in reasonable reliance upon the written advice of legal counsel or accountants, or information from any person presenting Series C Preferred Stock for deposit, any holder Holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary’s Agent, any Registrar and the Corporation may each rely and shall each be protected in acting upon or omitting to act upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary will indemnify the Corporation against any liability which may directly arise out of acts performed or omitted by the Depositary due to its gross negligence or willful misconduct, however, in no event shall the Depositary be liable for consequential, special or indirect damages of any kind regardless of whether the Depositary is put on notice of the possibility of such damages. The Depositary shall not be liable for the acts or omissions due to the gross negligence or willful misconduct of any Depositary’s Agent, so long as such Depositary’s Agent was appointed with due care. Notwithstanding anything to the contrary in this Agreement or otherwise, the Depositary’s aggregate liability to the Corporation, or any of the Corporation’s representatives or agents, under this Section 5.3, or under any other term or provision of this Agreement, whether in contract, tort, or otherwise, is expressly limited to, and shall not exceed in any circumstances, one year’s fees received by the Depositary as fees and charges under this Agreement, but not including reimbursable expenses previously reimbursed to the Depositary by the Corporation hereunder, provided that such limitation on liability shall not apply to any act or omission finally adjudicated to have been caused by the willful misconduct or gross negligence of the Depositary. It is understood that such limitation in the preceding sentence will be applicable only to claims arising out of the Depositary’s role as Depositary and Registrar for the Receipts, and shall not be applicable to any other relationship that the Depositary may have with the Corporation, or to any other agreement. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Series C Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is not due to the willful misconduct or gross negligence of the DepositaryDepositary (each as determined by a final, non-appealable judgment from a court of competent jurisdiction). The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary, the any Depositary’s Agents, and any Registrar may own and deal in any class of securities of the Corporation and its affiliates and in Receipts. The Depositary may also act as transfer agent or registrar of any of the other securities of the Corporation and its affiliates. The Depositary shall not be under any liability for interest on any monies at any time received by it pursuant to any of the provisions of this Deposit Agreement or of the Receipts, the Depositary Shares or the Stock Series C Preferred Stock, nor shall it be obligated to segregate such monies from other monies held by it, except as required by law. The Depositary shall not be responsible for advancing funds on behalf of the Corporation and shall have no duty or obligation to make any payments if it has not timely received sufficient funds to make timely payments. In the event the Depositary believes any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall deem it necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action hereunder, the Depositary may, in its sole discretion upon written notice to the Corporation, refrain from taking any action and shall be fully protected and shall not be liable in any way to the Corporation, any holders Holders of Receipts or any other person or entity for refraining from taking such action, unless the Depositary receives written instructions or a certificate signed by the Corporation which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable matter to the satisfaction of the Depositary. The From time to time, the Corporation may provide the Depositary with instructions concerning the services performed by the Depositary under this Deposit Agreement. In addition, at any time, the Depositary may apply to any officer of the Corporation for instruction, and may consult with legal counsel for the Depositary or the Corporation with respect to any matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. Notwithstanding anything contained herein to the contrary, the Depositary’s aggregate liability during any term of this Agreement with respect to, arising from, or arising in connection with this Agreement, or from all services provided or omitted to be provided under this Agreement, whether in contract, or in tort, or otherwise, is limited to, and shall not be liable to exceed, the amounts paid hereunder by the Corporation or any holder of Receiptsto Depositary as fees and charges, but not including reimbursable expenses during the twelve (12) months immediately preceding the event for any action taken by it in accordance with the written instruction which recovery from Depositary is being sought. The rights and obligations of the Corporationparties under this Section 5.3 shall survive any resignation or succession of any Depositary, Registrar or Depositary’s Agent and the termination of this Deposit Agreement.
Appears in 1 contract
