Standard of Care. (a) Repo Custodian shall be obligated to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B. (b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement. (c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions. (d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action. (e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 70 contracts
Samples: Repo Custodian Agreement (Variable Insurance Products Fund Iv), Repo Custodian Agreement (Fidelity Advisor Series Ii), Repo Custodian Agreement (Fidelity Revere Street Trust)
Standard of Care. (a) Repo Custodian shall be obligated to exercise use reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each the Funds and/or Seller only for direct damages resulting from the negligence or willful misconduct of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's its officers, employees and or agents. The parties hereby agree that Repo CustodianCustodian shall not be liable for consequential, at its optionspecial or indirect damages, may insure itself against loss from any cause but shall be under no obligation even if Repo Custodians has been advised as to obtain insurance directly for the benefit of the Fundspossibility thereof. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 69 contracts
Samples: Repo Custodian Agreement (Fidelity Advisor Series Vii), Repo Custodian Agreement (Variable Insurance Products Fund Iv), Repo Custodian Agreement (Fidelity Aberdeen Street Trust)
Standard of Care. (a) Repo Custodian shall be obligated to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner. 11.
Appears in 30 contracts
Samples: Repo Custodian Agreement (Fidelity Aberdeen Street Trust), Repo Custodian Agreement (Fidelity Aberdeen Street Trust), Repo Custodian Agreement (Fidelity Select Portfolios)
Standard of Care. (a) Repo Custodian shall be obligated to exercise use reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each the Funds and/or Seller only for direct damages resulting from the negligence or willful misconduct of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's its officers, employees and or agents. The parties hereby agree that Repo CustodianCustodian shall not be liable for consequential, at its optionspecial or indirect damages, may insure itself against loss from any cause but shall be under no obligation even if Repo Custodians has been advised as to obtain insurance directly for the benefit of the Fundspossibility thereof. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
B. (b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner. 11.
Appears in 25 contracts
Samples: Repo Custodian Agreement (Fidelity Advisor Series I), Repo Custodian Agreement (Fidelity Aberdeen Street Trust), Repo Custodian Agreement (Fidelity Advisor Series Viii)
Standard of Care. (a) Repo Custodian The Adviser shall be obligated to exercise reasonable care responsible for the accuracy and diligence in carrying out the provisions of this Agreement and the Master Agreement completeness (and shall be liable for any material lack thereof) of any information with respect to each the Adviser, its personnel, or a Fund’s strategies contained in the Trust’s offering materials (including the Registration Statement, the Prospectus and advertising and sales materials) or proxy materials if such disclosure has been reviewed and approved by the Adviser.
(b) The Trust shall expect of the Funds Adviser, and Seller for any expenses or damages the Adviser shall give the Trust the benefit of, the Adviser’s best judgment and reasonable efforts in rendering the services to the Funds or Seller for breach of Repo Custodian's standard of care in Trust contemplated under this Agreement. In performing its duties under this Agreement, as further provided the Adviser shall act at all times in this Paragraphthe best interests of the Trust and each Fund. Repo Custodian assumes responsibility for loss to any property held by it pursuant The Adviser shall not be liable hereunder to the provisions Trust, any Fund or any Fund shareholders for any mistake of judgment or mistake of law, for any loss arising out of any investment, or for any act or omission taken or in any event whatsoever in the absence of: (i) bad faith, willful misfeasance or negligence in the performance of the Adviser’s duties or obligations under this Agreement or (ii) the Adviser’s reckless disregard of its duties and obligations under this Agreement. The Adviser acknowledges that federal and state securities laws impose liabilities under certain circumstances on persons who act in good faith and, therefore, nothing herein shall in any way constitute a waiver or limitation of any rights which is occasioned by the negligence ofTrust, a Fund or conversion, misappropriation a Fund’s shareholders may have under applicable federal or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but state securities laws.
(c) The Adviser shall not be under no obligation to obtain insurance directly liable for the benefit errors of the Funds. So long as and other service providers to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligenceTrust, misfeasance including the errors of pricing services, the administrator, the fund accountant, the custodian or misconduct, Repo Custodian the transfer agent to the Trust unless such errors arise from the Adviser’s providing false or misleading information to such service providers. The Adviser shall not be liable to Seller the Trust, a Fund or any of the Funds Fund’s shareholders for (i) any action taken or omitted failure to act in good faith in reliance upon proper instructionsupon: (i) information, instructions or requests, whether oral or written, with respect to the Fund made to the Adviser by a duly authorized officer of the Trust (other than a duly authorized Trust officer that is also a member of, affiliated with or interested person of the Adviser, its affiliates, or successors thereto (each an “Advisory Representative”); (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it the advice of counsel to be genuine the Trust; and to be signed by the proper party or parties, (iii) any delay written instruction or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness certified copy of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality resolution of the purchase Board or sale of any Securities by or to the Participating Funds or Seller or the propriety agent of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.Board.
(bd) Repo Custodian The Adviser shall not be responsible or liable to Seller for any failure or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used delay in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian performance of its obligations under this Agreement arising out of or the Master Agreement.
caused, directly or indirectly, by circumstances beyond its reasonable control including, without limitation, acts of civil or military authority, national emergencies, labor difficulties (c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything other than those related to the contrary hereinAdviser’s employees), Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions fire, mechanical breakdowns, flood or catastrophe, acts of God, insurrection, war, riots or failure of the Participating Fundsmails, transportation, communication or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactionspower supply.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 21 contracts
Samples: Investment Advisory Agreement (Capitol Series Trust), Investment Advisory Agreement (Capitol Series Trust), Investment Advisory Agreement (Capitol Series Trust)
Standard of Care. (a) Repo Custodian A. The Distributor shall be obligated use its best judgment and reasonable efforts in rendering services to exercise reasonable care and diligence in carrying out the provisions of Trust under this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation duty to obtain insurance directly for take any action except as specifically set forth herein or as may be specifically agreed to by the benefit of the FundsDistributor in writing. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian The Distributor shall not be liable to Seller the Trust or any of the Funds Trust’s shareholders for (i) any error of judgment or mistake of law, for any loss arising out of any investment, or for any action or inaction of the Distributor in the absence of bad faith or willful misfeasance in the performance of the Distributor’s duties or obligations under this Agreement or by reason of the Distributor’s reckless disregard of its duties and obligations under this Agreement
B. The Distributor shall not be liable for any action taken or omitted failure to act in good faith in reliance upon proper instructionsupon:
i. the advice of the Trust or of counsel, (who may be counsel to the Trust or counsel to the Distributor;
ii) . any action taken or omitted oral instruction which it receives and which it reasonably believes in good faith was transmitted by the person or persons authorized by the Board to give such oral instruction (the Distributor shall have no duty or obligation to make any inquiry or effort of certification of such oral instruction);
iii. any written instruction or certified copy of any resolution of the Board, and the Distributor may rely upon the genuineness of any noticesuch document or copy thereof reasonably believed in good faith by the Distributor to have been validly executed; or
iv. any signature, instruction, request, certificate letter of transmittal, certificate, opinion of counsel, statement, instrument, report, notice, consent, order, or other instrument document reasonably believed in good faith by it the Distributor to be genuine and to be have been signed or presented by the Trust or other proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under ; and the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian Distributor shall not be under any duty or obligation to ascertain whether inquire into the validity or invalidity or authority or lack thereof of any Securities at statement, oral or written instruction, resolution, signature, request, letter of transmittal, certificate, opinion of counsel, instrument, report, notice, consent, order, or any time delivered other document or instrument which the Distributor reasonably believes in good faith to be genuine.
C. The Distributor shall not be responsible or held liable for any failure or delay in performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary hereincircumstances beyond its reasonable control including, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions without limitation, acts of civil or military authority, national emergencies, labor difficulties, fire, mechanical breakdowns, flood or catastrophe, epidemic, acts of God, insurrection, war, riots or failure of the Participating Fundsmails, transportation, communication or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactionspower supply.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 20 contracts
Samples: Distribution Agreement (Series Portfolios Trust), Distribution Agreement (Series Portfolios Trust), Distribution Agreement (Series Portfolios Trust)
Standard of Care. (a) Repo Custodian A. The Distributor shall be obligated use its best judgment and reasonable efforts in rendering services to exercise reasonable care and diligence in carrying out the provisions of Trust under this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation duty to obtain insurance directly for take any action except as specifically set forth herein or as may be specifically agreed to by the benefit of the FundsDistributor in writing. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian The Distributor shall not be liable to Seller the Trust or any of the Trust’s shareholders for any error of judgment or mistake of law, for any loss arising out of any investment, or for any action or inaction of the Distributor in the absence of bad faith or willful misfeasance in the performance of the Distributor’s duties or obligations under this Agreement or by reason or the Funds Distributor’s reckless disregard of its duties and obligations under this Agreement
B. The Distributor shall not be liable for (i) any action taken or omitted failure to act in good faith in reliance upon proper instructionsupon:
(i) the advice of the Trust or of counsel, who may be counsel to the Trust or counsel to the Distributor;
(ii) any action taken or omitted oral instruction which it receives and which it reasonably believes in good faith was transmitted by the person or persons authorized by the Board to give such oral instruction (the Distributor shall have no duty or obligation to make any inquiry or effort of certification of such oral instruction);
(iii) any written instruction or certified copy of any resolution of the Board, and the Distributor may rely upon the genuineness of any noticesuch document or copy thereof reasonably believed in good faith by the Distributor to have been validly executed; or
(iv) any signature, instruction, request, certificate letter of transmittal, certificate, opinion of counsel, statement, instrument, report, notice, consent, order, or other instrument document reasonably believed in good faith by it the Distributor to be genuine and to be have been signed or presented by the Trust or other proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under ; and the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian Distributor shall not be under any duty or obligation to ascertain whether inquire into the validity or invalidity or authority or lack thereof of any Securities at statement, oral or written instruction, resolution, signature, request, letter of transmittal, certificate, opinion of counsel, instrument, report, notice, consent, order, or any time delivered other document or instrument which the Distributor reasonably believes in good faith to be genuine.
C. The Distributor shall not be responsible or held liable for any failure or delay in performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by it circumstances beyond its reasonable control including, without limitation, acts of civil or military authority, national emergencies, labor difficulties, fire, mechanical breakdowns, flood or catastrophe, acts of God, insurrection, war, riots or failure of the mails, transportation, communication or power supply. In addition, to the extent the Distributor’s obligations hereunder are such as properly may to oversee or monitor the activities of third parties, the Distributor shall not be held liable for any failure or delay in the performance of the Distributor’s duties caused, directly or indirectly, by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, failure or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers delay of such Eligible Securities that may be used third parties in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default performing their respective duties or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above cooperating reasonably and in a commercially reasonable mannertimely manner with the Distributor.
Appears in 19 contracts
Samples: Distribution Agreement (Managed Portfolio Series), Distribution Agreement (Trust for Advised Portfolios), Distribution Agreement (Trust for Advised Portfolios)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or failure omission to act of any Subcustodian to the same extent as may be required under this Agreement or under if the Master Agreement when Custodian committed such delay or failure is due act itself. With respect to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity Custodian shall only be responsible or genuineness liable for losses arising from employment of such Securities System caused by the Custodian's own failure to exercise reasonable care. In the event of any security received, delivered or held loss to the Customer by it pursuant to this Agreement or the Master Agreement, (vi) the legality reason of the purchase failure of the Custodian or sale of any Securities by or a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in an Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in each Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 14 contracts
Samples: Custodian Agreement (Delaware Group Decatur Fund Inc), Custodian Agreement (Wt Mutual Fund), Custodian Agreement (Wt Investment Trust I)
Standard of Care. (a) Repo Custodian A. The Distributor shall be obligated use its best judgment and reasonable efforts in rendering services to exercise reasonable care and diligence in carrying out the provisions of Trust under this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation duty to obtain insurance directly for take any action except as specifically set forth herein or as may be specifically agreed to by the benefit of the FundsDistributor in writing. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian The Distributor shall not be liable to Seller the Trust or any of the Funds Trust’s shareholders for (i) any error of judgment or mistake of law, for any loss arising out of any investment, or for any action or inaction of the Distributor in the absence of bad faith or willful misfeasance in the performance of the Distributor’s duties or obligations under this Agreement or by reason of the Distributor’s reckless disregard of its duties and obligations under this Agreement
B. The Distributor shall not be liable for any action taken or omitted failure to act in good faith in reliance upon proper instructionsupon:
(i) the advice of the Trust or of counsel, who may be counsel to the Trust or counsel to the Distributor;
(ii) any action taken or omitted oral instruction which it receives and which it reasonably believes in good faith was transmitted by the person or persons authorized by the Board to give such oral instruction (the Distributor shall have no duty or obligation to make any inquiry or effort of certification of such oral instruction);
(iii) any written instruction or certified copy of any resolution of the Board, and the Distributor may rely upon the genuineness of any noticesuch document or copy thereof reasonably believed in good faith by the Distributor to have been validly executed; or
(iv) any signature, instruction, request, certificate letter of transmittal, certificate, opinion of counsel, statement, instrument, report, notice, consent, order, or other instrument document reasonably believed in good faith by it the Distributor to be genuine and to be have been signed or presented by the Trust or other proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under ; and the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian Distributor shall not be under any duty or obligation to ascertain whether inquire into the validity or invalidity or authority or lack thereof of any Securities at statement, oral or written instruction, resolution, signature, request, letter of transmittal, certificate, opinion of counsel, instrument, report, notice, consent, order, or any time delivered other document or instrument which the Distributor reasonably believes in good faith to be genuine.
C. The Distributor shall not be responsible or held liable for any failure or delay in performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by it circumstances beyond its reasonable control including, without limitation, acts of civil or military authority, national emergencies, labor difficulties, fire, mechanical breakdowns, flood or catastrophe, epidemic, acts of God, insurrection, war, riots or failure of the mails, transportation, communication or power supply. In addition, to the extent the Distributor’s obligations hereunder are such as properly may to oversee or monitor the activities of third parties, the Distributor shall not be held liable for any failure or delay in the performance of the Distributor’s duties caused, directly or indirectly, by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, failure or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers delay of such Eligible Securities that may be used third parties in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default performing their respective duties or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above cooperating reasonably and in a commercially reasonable mannertimely manner with the Distributor.
Appears in 13 contracts
Samples: Distribution Agreement (Managed Portfolio Series), Distribution Agreement (Professionally Managed Portfolios), Distribution Agreement (Professionally Managed Portfolios)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in the Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or failure omission to act of any Subcustodian to the same extent as may be required under this Agreement or under if the Master Agreement when Custodian committed such delay or failure is due act itself. With respect to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity Custodian shall only be responsible or genuineness liable for losses arising from employment of such Securities System caused by the Custodian's own failure to exercise reasonable care. In the event of any security received, delivered or held loss to the Customer by it pursuant to this Agreement or the Master Agreement, (vi) the legality reason of the purchase failure of the Custodian or sale of any Securities by or a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in the Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in the Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian or hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 13 contracts
Samples: Custodian Agreement (Flag Investors International Fund Inc), Custodian Agreement (Total Return U S Treasury Fund Inc), Custodian Agreement (North American Government Bond Fund Inc)
Standard of Care. (a) Repo Custodian A. The Distributor shall be obligated use its best judgment and reasonable efforts in rendering services to exercise reasonable care and diligence in carrying out the provisions of Trust under this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation duty to obtain insurance directly for take any action except as specifically set forth herein or as may be specifically agreed to by the benefit of the FundsDistributor in writing. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian The Distributor shall not be liable to Seller the Trust or any of the Funds Trust’s shareholders for (i) any error of judgment or mistake of law, for any loss arising out of any investment, or for any action or inaction of the Distributor in the absence of bad faith or willful misfeasance in the performance of the Distributor’s duties or obligations under this Agreement or by reason of the Distributor’s reckless disregard of its duties and obligations under this Agreement
B. The Distributor shall not be liable for any action taken or omitted failure to act in good faith in reliance upon proper instructionsupon:
(i) the advice of the Trust or of counsel, who may be counsel to the Trust or counsel to the Distributor;
(ii) any action taken or omitted oral instruction which it receives and which it reasonably believes in good faith was transmitted by the person or persons authorized by the Board to give such oral instruction (the Distributor shall have no duty or obligation to make any inquiry or effort of certification of such oral instruction);
(iii) any written instruction or certified copy of any resolution of the Board, and the Distributor may rely upon the genuineness of any noticesuch document or copy thereof reasonably believed in good faith by the Distributor to have been validly executed; or
(iv) any signature, instruction, request, certificate letter of transmittal, certificate, opinion of counsel, statement, instrument, report, notice, consent, order, or other instrument document reasonably believed in good faith by it the Distributor to be genuine and to be have been signed or presented by the Trust or other proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under ; and the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian Distributor shall not be under any duty or obligation to ascertain whether inquire into the validity or invalidity or authority or lack thereof of any Securities at statement, oral or written instruction, resolution, signature, request, letter of transmittal, certificate, opinion of counsel, instrument, report, notice, consent, order, or any time delivered other document or instrument which the Distributor reasonably believes in good faith to be genuine.
C. The Distributor shall not be responsible or held liable for any failure or delay in performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary hereincircumstances beyond its reasonable control including, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions without limitation, acts of civil or military authority, national emergencies, labor difficulties, fire, mechanical breakdowns, flood or catastrophe, epidemic, acts of God, insurrection, war, riots or failure of the Participating Fundsmails, transportation, communication or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactionspower supply.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 12 contracts
Samples: Distribution Agreement (Trust for Professional Managers), Distribution Agreement (Managed Portfolio Series), Distribution Agreement (Trust for Professional Managers)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, requestrequest consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or failure omission to act of any Subcustodian to the same extent as may be required under this Agreement or under if the Master Agreement when Custodian committed such delay or failure is due act itself. With respect to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity Custodian shall only be responsible or genuineness liable for losses arising from employment of such Securities System caused by the Custodian's own failure to exercise reasonable care. In the event of any security received, delivered or held loss to the Customer by it pursuant to this Agreement or the Master Agreement, (vi) the legality reason of the purchase failure of the Custodian or sale of any Securities by or a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in an Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in each Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution, strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 10 contracts
Samples: Custodian Agreement (Isi Strategy Fund Inc), Custodian Agreement (Isi Strategy Fund Inc), Custodian Agreement (Total Return U S Treasury Fund Inc)
Standard of Care. In the performance of its responsibilities hereunder, INVESCO (aNY) Repo Custodian shall be obligated to exercise reasonable care and diligence in carrying out the provisions performance of its duties and act in good faith and use its best efforts to ensure the accuracy and completeness of all services under this Agreement. In performing services hereunder, INVESCO (NY):
(a) shall be under no duty to take any action on behalf of the Company or the Funds except as specifically set forth herein or as may be specifically agreed to by INVESCO (NY) in writing, and in computing the net asset value per Share of a Fund, INVESCO (NY) may rely upon any information furnished to it including, without limitation, information (1) as to the accrual of liabilities of a Fund and as to liabilities of a Fund not appearing on the books of account kept by INVESCO (NY), (2) as to the existence, status and proper treatment of reserves, if any, authorized by a Fund, (3) as to the sources of quotations to be used in computing net asset value, (4) as to the fair value to be assigned to any securities or other property for which price quotations are not readily available and (5) as to the sources of information with respect to "corporate actions" affecting portfolio securities of a Fund (information as to "corporate actions" shall include information as to dividends, distributions, interest payments, prepayments, stock splits, stock dividends, rights offerings, conversions, exchanges, recapitalizations, mergers, redemptions, calls, maturity dates and similar actions, including ex-dividend and record dates and the amounts and terms thereof);
(b) shall be responsible and liable for all losses, damages and costs (including reasonable attorneys' fees) incurred by the Company or any Fund which is due to or caused by INVESCO (NY)'s negligence in the performance of its duties under this Agreement and the Master Agreement and shall be liable or for INVESCO (NY)'s negligent failure to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care perform such duties as are specifically assumed by INVESCO (NY) in this Agreement, as further provided that, to the extend that duties, obligations and responsibilities are not expressly set forth in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence ofAgreement, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian INVESCO (NY) shall not be liable to Seller or the Funds for (i) any action taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act or omission that does not constitute willful misfeasance, bad faith or negligence on the part of God INVESCO (NY) or war, reckless disregard by INVESCO (ivNY) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive duties, obligations and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.responsibilities; and
(c) Repo Custodian without limiting the generality of the foregoing, INVESCO (NY) shall not not, in connection with INVESCO (NY)'s duties under this Agreement, be under any duty or obligation to ascertain whether inquire into and shall not be liable for or in respect of:
(1) the validity or invalidity or authority or lack of authority of any Securities at any time delivered to Oral or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything Written Instruction, notice or other instrument which conforms to the contrary hereinapplicable requirements of this Agreement, Repo Custodian shall if any and that INVESCO (NY) reasonably believes to be obligated to act in accordance with the guidelines and proper instructions genuine; and
(2) delays or errors or loss of data occurring by reason of circumstances beyond INVESCO (NY)'s control including, without limitation, acts of civil or military authorities, national emergencies, labor difficulties, fire, mechanical breakdown, denial of access, earthquake, flood or catastrophe, acts of God, insurrection, war, riots, or failure of the Participating Fundsmails, transportation, communication or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactionspower supply.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 10 contracts
Samples: Fund Accounting and Pricing Agent Agreement (Aim Investment Portfolios Inc), Fund Accounting and Pricing Agent Agreement (Aim Series Trust), Fund Accounting and Pricing Agent Agreement (Aim Series Trust)
Standard of Care. (a) Repo Custodian The Bank shall be obligated to exercise reasonable care and diligence perform only such duties as are set forth in carrying out this Agreement or expressly contained in Instructions given to Bank which are consistent with the provisions of this Agreement.
(i) The Bank will use reasonable care with respect to its obligations under this Agreement and the Master Agreement and safekeeping of Property. The Bank shall be liable to each the Fund for any loss which shall occur as the result of the Funds failure of a subcustodian to exercise reasonable care with respect to the safekeeping of such Property to the same extent that the Bank would be liable to the Fund if the Bank were holding such Property in New York. In the event of any loss to the Fund by reason of the failure of the Bank or its subcustodian to exercise reasonable care, the Bank shall be liable to the Fund only to the extent the Fund's direct damages and Seller expenses, to be determined based on, but not limited to, the market value of the Property which is the subject of the loss at the date of discovery of such loss, and without reference to any special conditions or circumstances. For purposes of this Section 12(a)(i), the term "subcustodian" shall not include any securities depository or clearing agency the use of which is compulsory because: (a) its use is required by law or regulation, (b) securities cannot be withdrawn from the depository, or (c) maintaining securities outside the depository is not consistent with prevailing custodial practices in the country which the depository serves.
(ii) The Bank will not be responsible for any expenses act, omission, default or damages for the solvency of any broker or agent (other than as provided herein) which it or a subcustodian appoints and uses unless such appointment and use were made or done negligently or in bad faith.
(iii) The Bank shall be indemnified by, and without liability to, the Fund and the particular Portfolio of the Fund involved for any action taken or omitted by the Bank whether pursuant to Instructions or otherwise within the Funds scope of this Agreement if such act or Seller for breach of Repo Custodian's standard of care omission was in good faith and without negligence. In performing its obligations under this Agreement, as further provided the Bank may rely on the genuineness of any document which it believes in this Paragraph. Repo Custodian assumes responsibility good faith to have been validly executed.
(iv) The Fund, on behalf of the particular Portfolio of the Fund involved, agrees to cause such Portfolio to pay for loss to any property held by it pursuant to and hold the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss Bank harmless from any cause but liability or loss resulting from the imposition or assessment of any taxes or other governmental charges, and any related expenses, with respect to income from or Property in such Portfolio's Custody Account and Deposit Account.
(v) The Bank shall be under no obligation entitled to obtain insurance directly rely, and may act upon the advice of counsel (who may be counsel for the benefit of the Funds. So long as Fund) on all matters and to the extent that Repo Custodian exercises reasonable care and diligence and acts shall be without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds liability for (i) any action reasonably taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it without negligence pursuant to this Agreement or the Master Agreement, such advice.
(vi) The Bank need not maintain any insurance for the legality exclusive benefit of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), Fund.
(vii) Without limiting the due authority foregoing, the Bank shall not be liable for any loss which results from:
(1) the general risk of any person listed on Schedule C investing, or
(2) subject to act on behalf Section 12(a)(i) hereof, investing or holding Property in a particular country including, but not limited to, losses resulting from nationalization, expropriation or other governmental actions; regulation of Custodianthe banking or securities industry; currency restrictions, Seller devaluations or fluctuations; and market conditions which prevent the Funds, as orderly execution of securities transactions or affect the case may be, with respect to this Agreement or value of Property.
(viii) No party shall be liable to the errors other for any loss due to forces beyond its control including but not limited to strikes or work stoppages, acts of the Pricing Serviceswar or terrorism, broker's brokers insurrection, revolution, nuclear fusion, fission or broker dealers set forth in Schedule B.radiation, or acts of God.
(b) Repo Custodian Consistent with and without limiting the first paragraph of this Section 12, it is specifically acknowledged that the Bank shall not be liable have no duty or responsibility to:
(i) Question Instructions or make any suggestions to Seller the Fund or an Authorized Person regarding such Instructions;
(ii) Supervise or make recommendations with respect to investments or the Funds for, retention of Securities;
(iii) Advise the Fund or considered to be the custodian of, an Authorized Person regarding any Eligible Securities or any money to be used default in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of moneyprincipal or income of any Security other than as provided in the last paragraph of Section 5 hereof;
(iv) Subject to Section 12(a)(ii) hereof, until evaluate or report to the Eligible Fund or an Authorized Person regarding the financial condition of any broker, agent or other party to which Securities have been are delivered in accordance with Paragraph 3 or until Repo Custodian actually receives payments are made pursuant to this Agreement; or
(v) Review or reconcile trade confirmations received from brokers. The Fund or its Authorized Persons issuing Instructions shall bear any responsibility to review such confirmations against Instructions issued to and collects such money on behalf of Seller or the Funds directly or statements issued by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master AgreementBank.
(c) Repo Custodian The Bank shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything provide to the contrary hereinFund, Repo Custodian shall be obligated to act on an annual basis, a report confirming that the arrangements hereunder remain in accordance compliance with the guidelines and proper instructions rules of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of Exchange Commission governing such Eligible Securities that may be used in specific repurchase transactionsarrangements.
(d) Repo Custodian promptly shall notify The Fund authorizes the Fund Agent and Bank to act under this Agreement notwithstanding that the Custodian if Securities held by Repo Custodian Bank or any of its divisions or affiliates may have a material interest in a transaction, or circumstances are such that the Bank may have a potential conflict of duty or interest, including the fact that the Bank or any of its affiliates may provide brokerage services to other customers, act as financial advisor to the issuer of Securities, act as a lender to the issuer of Securities, act in default the same transaction as agent for more than one customer, have a material interest in the issue of Securities, or if payment on earn profits from any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such actionactivities listed herein.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 6 contracts
Samples: Custody Agreement (Excelsior Funds Inc), Custody Agreement (Excelsior Funds Trust), Custody Agreement (Excelsior Funds Trust)
Standard of Care. (a) Repo Custodian shall be obligated responsible for the performance of only such duties as are set forth herein or contained in Instructions given to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant that are not contrary to the provisions of this Agreement which is occasioned by Agreement. Custodian will use reasonable care and diligence with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencediligence, misfeasance or misconduct, Repo Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, reasonable fees and expenses of counsel) incurred by Custodian and arising out of action taken or omitted with reasonable care by Custodian hereunder or under any delay Instructions. Custodian shall be liable to Customer for any act or failure omission to act of any Subcustodian to the same extent as may be required under this Agreement or under the Master Agreement when if Custodian committed such delay or failure is due act itself. With respect to any act of God or war, (iv) the actions or omissions of a Securities System, (v) Custodian shall only be responsible or liable for losses arising from employment of such Securities System caused by Custodian's own failure to exercise reasonable care; provided that in the title, validity or genuineness event of any security receivedsuch loss, delivered or held by Custodian shall take all reasonable steps to enforce such claims as it pursuant may have against the Securities System to this Agreement or protect the Master Agreement, (vi) the legality interests of the purchase or sale Customer. In the event of any Securities loss to Customer by or to the Participating Funds or Seller or the propriety reason of the amount for which the same are purchased failure of Custodian or sold (except a Subcustodian to utilize reasonable care, Custodian shall be liable to Customer to the extent of Repo CustodianCustomer's obligations hereunder actual damages at the time such loss was discovered (including, without limitation, reasonable fees and expenses of counsel) without reference to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller special conditions or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo circumstances. In no event shall Custodian shall not be liable to Seller for any consequential or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo special damages. Custodian shall be obligated entitled to act rely, and may act, on advice of counsel (who may be counsel for Custodian or Customer) on all matters and shall be without liability for any action reasonably taken or omitted in accordance with the guidelines and proper instructions of the Participating Fundsgood faith pursuant to such advice, or the Custodian on behalf of the Participating Funds, provided that with respect to the types performance of Eligible Securities and the issuers any action or omission of any action upon such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and advice, the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action be required to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory conform to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(athis Section 16. In the event Customer subscribes to an electronic on-line service and communications system offered by Custodian, Customer shall be fully responsible for the security of its connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agrees to defend and indemnify Custodian and hold Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) above incurred by Custodian as a result of any improper or unauthorized use of such terminal by Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities in an Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of Customer. Subject to the exercise of reasonable care, Custodian shall have no liability for any loss occasioned by delay in the actual receipt of notice by Custodian or by a Subcustodian of any payment, redemption or other transaction regarding Securities in each Account in respect of which Custodian has agreed to take action as provided in Section 3 hereof. Custodian shall not be liable for any loss resulting from, or caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to the banking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, terrorism, insurrection or revolution; strikes or work stoppages; the inability of a commercially local clearing and settlement system to settle transactions for reasons beyond the control of Custodian; hurricane, cyclone, earthquake, volcanic eruption, nuclear fusion, fission or radioactivity, or other acts of God. Custodian shall have no liability in respect of any loss, damage or expense suffered by Customer, insofar as such loss, damage or expense arises from the performance of Custodian's duties hereunder by reason of Custodian's reliance upon records that were maintained for Customer by entities other than Custodian prior to Custodian's employment under this Agreement. If Custodian does not exercise reasonable mannercare, Custodian shall indemnify Customer for any losses, damages, costs and expenses (including, without limitation, the fees and expenses of counsel) incurred by Customer and arising out of action taken or omitted without reasonable care by Custodian hereunder or under any Instructions.
Appears in 5 contracts
Samples: Custodian Agreement (Forum Funds), Custodian Agreement (Forum Funds), Custodian Agreement (Forum Funds)
Standard of Care. (a) Repo Custodian Vendor acknowledges and agrees that, during the course of its engagement by Named Entity, Vendor may receive or have access to Named Entity Protected Data. Vendor shall comply with the terms and conditions set forth in this Contract, the RFO, and OAG Information Security Standards (Attachment 4 to the RFO) in its collection, receipt, transmission, storage, disposal, use and disclosure of both Named Entity Protected Data and be responsible for the unauthorized collection, receipt, transmission, access, storage, disposal, use and disclosure of Named Entity Protected Data under its control or in its possession by all Authorized Employees and/or Authorized Persons. Vendor shall be obligated to exercise reasonable care responsible for and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be remain liable to each Named Entity for the actions and omissions of all Authorized Persons that are not Authorized Employees concerning the treatment of Named Entity Protected Data as if they were Vendor’s own actions and omissions.
(b) In recognition of the Funds foregoing, Xxxxxx agrees and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard covenants that it shall:
(i) keep and maintain all Named Entity Protected Data in strict confidence, using such degree of care in this Agreementas is appropriate to avoid unauthorized access, as further use or disclosure;
(ii) use and disclose Named Entity Protected Data solely and exclusively for the purposes for which the Named Entity Protected Data, or access to it, is provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions terms and conditions of this Agreement which is occasioned by the negligence ofContract, and not use, sell, rent, transfer, distribute, or conversion, misappropriation otherwise disclose or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly make available Named Entity Protected Data for Vendor’s own purposes or for the benefit of anyone other than the Funds. So long OAG or Named Entity in each case, without Named Entity’s prior written consent or as permitted in subsection (c) below; and
(iii) not, directly or indirectly, disclose Named Entity Protected Data to any person or entity other than its Authorized Employees and/or Authorized Persons (“Unauthorized Third Party”) without the prior express written consent from Named Entity, unless and to the extent that Repo Custodian exercises reasonable care required by applicable law or court order in which case, Vendor shall (1) use best efforts to notify OAG before such disclosure or as soon thereafter as reasonably possible; (2) be responsible for and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be remain liable to Seller or the Funds OAG for (i) any action taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or and omissions of any Unauthorized Third Party concerning the treatment of such Named Entity Protected Data as if they were Vendor’s own actions and omissions; and (3 ) require the Unauthorized Third Party that has access to Personal Information to execute a Securities Systemwritten agreement agreeing to comply with the terms and conditions of this Contract, the RFO, and the OAG Information Security Standards (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or Attachment 4 to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except RFO) relating to the extent treatment of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master AgreementNamed Entity Protected Data.
(c) Repo Custodian Notwithstanding anything in the foregoing subsection (b), Vendor is authorized by Named Entity to utilize Named Entity Protected Data only to the extent such Named Entity Protected Data is related to a Defendant or to a Defendant Status Change (hereinafter “SAVNS Defendant Data”) for the limited purpose of providing or improving Vendor's own existing products and services identified in the Appriss Data Overview to Law Enforcement Agencies and Government Agencies. For the purposes of this paragraph, "utilize" includes, but is not limited to, receiving, maintaining, disseminating, retaining, or otherwise providing access to any information obtained or extrapolated from SAVNS Defendant data obtained under the SAVNS program. "Government Agency" means an organization created by or pursuant to the Constitution of the United States or the constitution of a state of the United States and operated for public purposes. The term "Government Agency" shall not be under include any duty quasi-governmental entity or obligation government-sponsored enterprise or corporation. "Law Enforcement Agency" means a Government Agency or an organizational unit within a Government Agency with authority to ascertain whether any Securities at any time delivered to enforce state or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary hereinfederal criminal laws, Repo Custodian shall be obligated to act in accordance with the guidelines which includes, but is not limited to, prevention, detection, and proper instructions investigation of the Participating Fundscrime, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers apprehension and incarceration of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.alleged offenders;
Appears in 5 contracts
Samples: Addendum to the Participating Entity Services Agreement, Participating Entity Services Agreement, Participating Entity Services Agreement
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not the contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or failure omission to act of any Subcustodian to the same extent as may if the Custodian committed such act itself, PROVIDED THAT if Customer by Instructions selects any U.S. Subcustodian or a non-U.S. Subcustodian which, at the time of selection is no part of the Custodian's existing global custody network, the Custodian shall be required under this Agreement or under the Master Agreement when such delay or failure is due only liable for its own negligence. With respect to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity Custodian shall only be responsible or genuineness liable for losses arising from employment of such Securities System caused by the Custodian's own failure to exercise reasonable care. In the event of any security received, delivered or held loss to the Customer by it pursuant to this Agreement or the Master Agreement, (vi) the legality reason of the purchase failure of the Custodian or sale of any Securities by or a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in an Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in each Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 5 contracts
Samples: Custodian Agreement (Usaa Mutual Fund Inc), Custodian Agreement (Usaa Mutual Fund Inc), Custodian Agreement (Usaa Mutual Fund Inc)
Standard of Care. (a) Repo Custodian shall be obligated to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but Placement Agent shall be under no obligation duty to obtain insurance directly for the benefit of the Funds. So long take any action under this Agreement except as and specifically set forth herein or as may be specifically agreed to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian by Placement Agent in a written amendment to this Agreement.
(b) Neither Placement Agent nor any other Placement Agent Indemnitee (as defined in Section 10) shall not be liable to Seller or the Funds for (i) any action taken or omitted in good faith in for any failure to take an action based on reasonable reliance upon proper instructionsupon:
(i) the written instructions of the Fund (including an officer of the Fund), or of counsel to the Fund; for purposes of this clause, procedures adopted by Placement Agent related to the implementation by Placement Agent of its obligations hereunder and the other activities contemplated to be taken by Placement Agent hereunder (acting individually or through its registered representatives) that have been reviewed and approved by the Fund or counsel to the Fund shall be deemed to be written instructions of the Fund or counsel to the Fund;
(ii) any action taken written instruction or omitted in good faith certified copy of any resolution of the Board of directors, trustees or managers of the Investment Adviser or the Fund, and Placement Agent may rely upon the genuineness of any noticesuch document or copy thereof reasonably believed by Placement Agent to have been validly executed; or
(iii) any signature, instruction, request, certificate letter of transmittal, certificate, opinion of counsel, statement, instrument, report, notice, consent, order, or other instrument document reasonably believed by it Placement Agent to be genuine and to be have been signed or presented by the Investment Adviser or the Fund or other proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian Placement Agent shall not be under any duty or obligation to ascertain whether inquire into the validity or invalidity or authority or lack thereof of any Securities at statement, written instruction, resolution, signature, request, letter of transmittal, certificate, opinion of counsel, instrument, report, notice, consent, order, or any time delivered other document or instrument which Placement Agent reasonably believes to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding genuine.
(c) Notwithstanding anything in this Agreement to the contrary hereincontrary, Repo Custodian Placement Agent shall be obligated liable to act in accordance with the guidelines Fund and proper instructions any of the Participating Funds, or the Custodian on behalf Fund’s Unitholders only for any damages arising out of the Participating Funds, with respect Placement Agent’s failure to perform its duties under this Agreement to the types of Eligible Securities and extent such damages were caused by Placement Agent’s willful misfeasance, gross negligence or reckless disregard in the issuers performance of such Eligible Securities that may be used in specific repurchase transactionsduties.
(d) Repo Custodian promptly Placement Agent shall notify not be liable for the Fund Agent and delays or errors of other service providers to the Custodian if Securities held Fund, including the failure by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions service provider to provide information to Placement Agent when they have a duty to do so (irrespective of the Participating Funds, whether that duty is owed specifically to Placement Agent or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such actiona third party).
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 4 contracts
Samples: Private Placement Agent Agreement (Primark Private Equity Fund), Private Placement Agent Agreement (Conversus StepStone Private Markets), Private Placement Agent Agreement (Infinity Long/Short Equity Fund, LLC)
Standard of Care. (a) Repo Custodian Vendor acknowledges and agrees that, during the course of its engagement by Named Entity, Vendor may receive or have access to Named Entity Protected Data. Vendor shall comply with the terms and conditions set forth in this Contract, the RFO, and OAG Information Security Standards (Attachment 4 to the RFO) in its collection, receipt, transmission, storage, disposal, use and disclosure of both Named Entity Protected Data and be responsible for the unauthorized collection, receipt, transmission, access, storage, disposal, use and disclosure of Named Entity Protected Data under its control or in its possession by all Authorized Employees and/or Authorized Persons. Vendor shall be obligated to exercise reasonable care responsible for and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be remain liable to each Named Entity for the actions and omissions of all Authorized Persons that are not Authorized Employees concerning the treatment of Named Entity Protected Data as if they were Vendor’s own actions and omissions.
(b) In recognition of the Funds foregoing, Vendor agrees and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard covenants that it shall:
(i) keep and maintain all Named Entity Protected Data in strict confidence, using such degree of care in this Agreementas is appropriate to avoid unauthorized access, as further use or disclosure;
(ii) use and disclose Named Entity Protected Data solely and exclusively for the purposes for which the Named Entity Protected Data, or access to it, is provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions terms and conditions of this Agreement which is occasioned by the negligence ofContract, and not use, sell, rent, transfer, distribute, or conversion, misappropriation otherwise disclose or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly make available Named Entity Protected Data for Vendor’s own purposes or for the benefit of anyone other than the Funds. So long OAG or Named Entity in each case, without Named Entity’s prior written consent or as permitted in subsection (c) below; and
(iii) not, directly or indirectly, disclose Named Entity Protected Data to any person or entity other than its Authorized Employees and/or Authorized Persons (“Unauthorized Third Party”) without the prior express written consent from Named Entity, unless and to the extent that Repo Custodian exercises reasonable care required by applicable law or court order in which case, Vendor shall (1) use best efforts to notify OAG before such disclosure or as soon thereafter as reasonably possible; (2) be responsiblefor and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be remain liable to Seller or OAG for the Funds for (i) actionsand omissions of any action taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine Unauthorized Third Party concerning the treatment of such Named Entity Protected Data as if they were Vendor’s own actions and to be signed by the proper party or parties, omissions; and (iii) any delay or failure require the Unauthorized Third Party that has access to act as may be required under Personal Information to execute a written agreement agreeing to comply with the terms and conditions of this Agreement or under Contract, the Master Agreement when such delay or failure is due to any act of God or warRFO, and the OAG Information Security Standards (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or Attachment 4 to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except RFO) relating to the extent treatment of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master AgreementNamed Entity Protected Data.
(c) Repo Custodian Notwithstanding anything in the foregoing subsection (b), Vendor is authorized by Named Entity to utilize Named Entity Protected Data only to the extent such Named Entity Protected Data is related to a Defendant or to a Defendant Status Change (hereinafter “SAVNS Defendant Data”) for the limited purpose of providing or improving Vendor's own existing products and services identified in the Appriss Data Overview to Law Enforcement Agencies and Government Agencies. For the purposes of this paragraph, "utilize" includes, but is not limited to, receiving, maintaining, disseminating, retaining, or otherwise providing access to any information obtained or extrapolated from SAVNS Defendant data obtained under the SAVNS program. "Government Agency" means an organization created by or pursuant to the Constitution of the United States or the constitution of a state of the United States and operated for public purposes. The term "Government Agency" shall not be under any duty includeany quasi-governmental entity or obligation government-sponsored enterprise or corporation. "Law Enforcement Agency" means a Government Agency or an organizational unit within a Government Agency with authority to ascertain whether any Securities at any time delivered to enforce state or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary hereinfederal criminal laws, Repo Custodian shall be obligated to act in accordance with the guidelines which includes, but is not limited to, prevention, detection, and proper instructions investigation of the Participating Fundscrime, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers apprehension and incarceration of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.alleged offenders;
Appears in 4 contracts
Samples: Participating Entity Services Agreement, Participating Entity Services Agreement, Participating Entity Services Agreement
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or omission to act of any Subcustodian to the same extent as if the Custodian committed such act itself. Where, under applicable law, regulation, or practice (in order to facilitate the settlement of transactions related thereto), or where the Customer otherwise elects, Securities are held in a Securities System in a particular market, the Custodian shall only be responsible or liable for losses arising from employment of such Securities System caused by the Custodian's own failure to act as may exercise reasonable care. Where the Custodian otherwise elects to employ a Securities System for holding Securities in a particular market, the Custodian shall be required under this Agreement or under liable to the Master Agreement when such delay or failure is due to Customer for any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale omission of any Securities by or System to the Participating Funds or Seller or same extent as if the propriety Custodian committed such act itself. In the event of any loss to the Customer by reason of the amount for which failure of the same are purchased Custodian or sold (except a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in an Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in each Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 3 contracts
Samples: Custodian Agreement (Bt Advisor Funds), Custodian Agreement (Bt Investment Funds), Custodian Agreement (Bt Pyramid Mutual Funds)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in the Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or omission to act of any Subcustodian to the same extent as if the Custodian committed such act itself. Where, under applicable law, regulation, or practice (in order to facilitate the settlement of transactions related thereto), or where the Customer otherwise elects, Securities are held in a Securities System in a particular market, the Custodian shall only be responsible or liable for losses arising from employment of such Securities System caused by the Custodian's own failure to act as may exercise reasonable care. Where the Custodian otherwise elects to employ a Securities System for holding Securities in a particular market, the Custodian shall be required under this Agreement or under liable to the Master Agreement when such delay or failure is due to Customer for any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale omission of any Securities by or System to the Participating Funds or Seller or same extent as if the propriety Custodian committed such act itself. In the event of any loss to the Customer by reason of the amount for which failure of the same are purchased Custodian or sold (except a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in the Account, including funds involved in third- party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in the Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 3 contracts
Samples: Custodian Agreement (Cash Management Portfolio), Custodian Agreement (Equity 500 Index Portfolio), Custodian Agreement (Treasury Money Portfolio)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in the Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or omission to act of any Subcustodian to the same extent as if the Custodian committed such act itself. Where, under applicable law, regulation, or practice (in order to facilitate the settlement of transactions related thereto), or where the Customer otherwise elects, Securities are held in a Securities System in a particular market, the Custodian shall only be responsible or liable for losses arising from employment of such Securities System caused by the Custodian's own failure to act as may exercise reasonable care. Where the Custodian otherwise elects to employ a Securities System for holding Securities in a particular market, the Custodian shall be required under this Agreement or under liable to the Master Agreement when such delay or failure is due to Customer for any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale omission of any Securities by or System to the Participating Funds or Seller or same extent as if the propriety Custodian committed such act itself. In the event of any loss to the Customer by reason of the amount for which failure of the same are purchased Custodian or sold (except a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in the Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in the Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 3 contracts
Samples: Custodian Agreement (Ny Tax Free Money Portfolio), Custodian Agreement (International Equity Portfolio), Custodian Agreement (Intermediate Tax Free Portfolio)
Standard of Care. (a) Repo The Custodian shall be obligated held to the exercise of reasonable care and diligence in carrying out the provisions of this Agreement Agreement; provided, however, that the Custodian is not responsible or liable for, and the Master Agreement Fund will promptly indemnify and shall hold the Custodian harmless from and against, any and all direct costs, expenses, losses, damages, charges, reasonable counsel fees, payments and liabilities that are incurred by the Custodian or for which the Custodian is held to be liable to each liable, arising out of the Funds and Seller for any expenses or damages attributable to the Funds or Seller for breach of Repo Custodian's standard of care in ’s entrance into this Agreement, as further provided a result of the Custodian following any Proper Instructions, or as a result of any other action or inaction of the Custodian in the performance of its duties under this Paragraph. Repo Custodian assumes responsibility for loss Agreement; and provided, further, that such indemnity and hold harmless obligation shall not apply to any property held by it costs, expenses, losses, damages, charges, reasonable counsel fees, payments or liabilities to the extent arising out of the Custodian’s negligence, bad faith or willful misconduct. Custodian shall be entitled to rely on and may act upon advice of counsel (who may be counsel for the Fund) on all matters, and shall be without liability for any action reasonably taken or omitted pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Fundssuch advice. So long as and to the extent that Repo the Custodian exercises reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds for (i) any action taken or omitted this Agreement and shall be held harmless in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith acting upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, including any futures commission merchant acting pursuant to the terms of a three-party futures or options agreement. Notwithstanding anything herein to the contrary (iii) any delay or failure but subject to act the provisions of the second paragraph of this Section 15.1 and the provisions of Section 15.2 below), and except with respect to Foreign Sub-Custodians in certain countries set forth on a separate written schedule (collectively, the “Non-Standard Countries”), incorporated herein by reference, as such schedule may be required under this Agreement amended by mutual consent of the parties from time to time, Custodian shall be liable to the Fund for any loss which shall occur as the result of the failure of the Custodian or under a Foreign Sub-Custodian to exercise reasonable care and diligence with respect to the Master Agreement when safekeeping of the Fund’s assets to the same extent that the Custodian would be liable to the Fund if the Custodian were holding such delay or failure is due to any act assets in New York; provided, however, that regardless of God or war, (iv) whether assets are maintained in the actions or omissions custody of a Foreign Sub-Custodian or a Foreign Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller for any loss, damage, cost, expense, liability or claim resulting from or caused by nationalization, expropriation, currency restrictions, acts of war, revolution, riots or terrorism where the Funds forForeign Sub-Custodian has otherwise acted with reasonable care; and provided, or considered to be the custodian offurther, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty responsible for the insolvency of a Foreign Sub-Custodian which is not an affiliate or obligation to ascertain whether any Securities at any time delivered to subsidiary of Custodian unless such appointment was made negligently or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything in bad faith. As to the contrary hereinForeign Sub-Custodians employed in the Non-Standard Countries listed on such separate written schedule from time to time, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other more or less responsibility or liability to the Fund on account of any actions or omissions of any such Foreign Sub-Custodian so employed than such duties as are necessary Foreign Sub-Custodian has to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within Custodian; provided, however, that the contract or agreement under which State Street employs such Foreign Sub-Custodian satisfies the standard of care set forth in Paragraph 10(aSection 3.2.3.(b) above of this Agreement. If Custodian reasonably and in good faith determines that any country should be deleted from or added to such separate written schedule due to a commercially change in circumstances, Custodian shall give the Fund written notice thereof, and such separate written schedule shall be deemed to be amended, without having to amend this Agreement, upon mutual consent of the parties and the Fund agrees that such consent shall not be unreasonably withheld or delayed. At the request of the Fund, provided that each such request is reasonable mannerand made in good faith, Custodian agrees to reasonably and in good faith re-evaluate the prevailing circumstances in the countries then listed on such separate written schedule to determine whether any such country should be removed from such schedule.
Appears in 3 contracts
Samples: Master Custodian Agreement (Tiaa Separate Account Va 1), Master Custodian Agreement (Tiaa Cref Institutional Mutual Funds), Master Custodian Agreement (Tiaa Cref Life Fund)
Standard of Care. (a) Repo Custodian In the performance of its responsibilities hereunder, Chancellor LGT shall be obligated to exercise reasonable care and diligence in carrying out the provisions performance of its duties and act in good faith and use its best efforts to ensure the accuracy and completeness of all services under this Agreement. In performing services hereunder, Chancellor LGT:
(a) shall be under no duty to take any action on behalf of the Company or the Funds except as specifically set forth herein or as may be specifically agreed to by Chancellor LGT in writing, and in computing the net asset value per Share of a Fund, Chancellor LGT may rely upon any information furnished to it including, without limitation, information (1) as to the accrual of liabilities of a Fund and as to liabilities of a Fund not appearing on the books of account kept by Chancellor LGT, (2) as to the existence, status and proper treatment of reserves, if any, authorized by a Fund, (3) as to the sources of quotations to be used in computing net asset value, (4) as to the fair value to be assigned to any securities or other property for which price quotations are not readily available and (5) as to the sources of information with respect to "corporate actions" affecting portfolio securities of a Fund (information as to "corporate actions" shall include information as to dividends, distributions, interest payments, prepayments, stock splits, stock dividends, rights offerings, conversions, exchanges, recapitalizations, mergers, redemptions, calls, maturity dates and similar actions, including ex-dividend and record dates and the amounts and terms thereof);
(b) shall be responsible and liable for all losses, damages and costs (including reasonable attorneys' fees) incurred by the Company or any Fund which is due to or caused by Chancellor LGT's negligence in the performance of its duties under this Agreement and the Master Agreement and shall be liable or for Chancellor LGT's negligent failure to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care perform such duties as are specifically assumed by Chancellor LGT in this Agreement, as further provided that, to the extend that duties, obligations and responsibilities are not expressly set forth in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence ofAgreement, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian Chancellor LGT shall not be liable to Seller or the Funds for (i) any action taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act or omission that does not constitute willful misfeasance, bad faith or negligence on the part of God Chancellor LGT or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held reckless disregard by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery Chancellor LGT of such Eligible Securities or the failure to receive duties, obligations and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.responsibilities; and
(c) Repo Custodian without limiting the generality of the foregoing, Chancellor LGT shall not not, in connection with Chancellor LGT's duties under this Agreement, be under any duty or obligation to ascertain whether inquire into and shall not be liable for or in respect of:
(1) the validity or invalidity or authority or lack of authority of any Securities at Oral or Written Instruction, notice or other instrument which conforms to the applicable requirements of this Agreement, if any time delivered and that Chancellor LGT reasonably believes to be genuine; and
(2) delays or held errors or loss of data occurring by it are such as properly may reason of circumstances beyond Chancellor LGT's control including, without limitation, acts of civil or military authorities, national emergencies, labor difficulties, fire, mechanical breakdown, denial of access, earthquake, flood or catastrophe, acts of God, insurrection, war, riots, or failure of the mails, transportation, communication or power supply. Notwithstanding any other provisions of this Agreement, the following provisions shall apply with respect to Chancellor LGT's computation of a Fund's net asset value: Chancellor LGT shall be held to the exercise of reasonable care in computing and determining net asset value as provided in Section 4(a), above, but shall not be held accountable or liable for any losses, damages or expenses of a Fund or any Shareholder or former Shareholder may incur arising from or based upon errors or delays in the determination of such net asset value unless such error or delay was due to Chancellor LGT's negligence or willful misfeasance in the computation and determination of such net asset value. The parties hereto acknowledge, however, that Chancellor LGT causing an error or delay in the determination of net asset value may, but does not in an of itself, constitute negligence or willful misfeasance. In no event shall Chancellor LGT be liable or responsible to the Company or a Fund or any other party for any error or delay which continued or was undetected after the date of an audit of the Company or any Fund performed by the Participating Funds; provided that notwithstanding anything to certified public accountants employed by the contrary hereinCompany if, Repo Custodian shall be obligated to act in the exercise of reasonable care in accordance with generally accepted accounting principles, such accountants should have become aware of such error or delay in the guidelines and proper instructions course of performing such audit. Chancellor LGT's liability for any such negligence or willful misfeasance which results in an error in determination of such net asset value be limited to the direct out- of-pocket loss a Fund and/or any Shareholder or former Shareholder shall actually incur. Without limiting the generality of the Participating Fundsforegoing, Chancellor LGT shall not be held accountable or liable to a Fund a Shareholder or former Shareholder or any other person for any delays or losses, damages or expenses any of them may suffer or incur resulting from (1) Chancellor LGT's failure to receive timely and suitable notification concerning quotations, corporate actions or similar matters relating to or affecting portfolio securities of a Fund or (2) any errors in the Custodian on behalf computation of the Participating Fundsa net asset value based upon or arising out of quotations or information as to corporate actions if received by Chancellor LGT from a source that Chancellor LGT was authorized to rely upon. Nevertheless, with respect Chancellor LGT will use its best judgment in determining whether to the types of Eligible Securities and the issuers of such Eligible Securities verify through other sources any information that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian it has received as to quotations or corporate actions if Securities held by Repo Custodian are in default or if payment on any Securities Chancellor LGT has been refused after due demand and presentation and Repo Custodian shall take action reason to effect collection of believe that any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such actioninformation is incorrect.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 3 contracts
Samples: Fund Accounting and Pricing Agent Agreement (G T Global Growth Series), Fund Accounting and Pricing Agent Agreement (Gt Global Variable Investment Trust), Fund Accounting and Pricing Agent Agreement (Gt Investment Portfolios Inc)
Standard of Care. (a) Repo In performing the services hereunder, the Custodian shall act without negligence, willful misconduct, willful misfeasance, fraud, bad faith, reckless disregard of its duties and obligations under this Agreement and with the reasonable care, prudence, diligence, and skill that may be reasonably expected of a leading provider of custody services in carrying out all of its duties and obligations under this Agreement. The Custodian shall be obligated to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement kept indemnified by and shall be liable to each of the Funds and Seller for any expenses or damages without liability to the Funds or Seller Fund for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action taken or omitted by it in good faith without negligence, including actions or omissions (i) at the request or on the direction of or in reliance upon proper instructionson the advice of the Fund or the Fund’s counsel on behalf of the Fund, or (ii) on Proper Instructions; provided that, the Custodian shall not be indemnified against any action taken liability (or omitted any expenses incident to such liability) arising out of the Custodian’s failure to exercise its standard of care set out in good faith upon this Section 14.1. Except as may arise from the Custodian’s failure to exercise its standard of care, the Custodian shall be without liability to the Fund for any noticeloss, requestliability, certificate claim or expense resulting from or caused by: (i) events or circumstances beyond the reasonable control of the Custodian or any sub-custodian or Securities System or any agent or nominee of any of the foregoing, including, without limitation, the interruption, suspension or restriction of trading on or the closure of any securities market, power or other instrument reasonably believed by it to be genuine and to be signed mechanical or technological failures or interruptions, computer viruses or communications disruptions, work stoppages, natural disasters, or other similar events or acts; (ii) errors by the proper party Fund or parties, its duly authorized investment manager or investment adviser in their instructions to the Custodian provided such instructions have been in accordance with this Agreement; (iii) any delay or failure of any broker, agent or intermediary, central bank or other commercially prevalent payment or clearing system to act as may be required under this Agreement deliver to the Custodian’s sub-custodian or under agent securities purchased or in the Master Agreement when remittance or payment made in connection with securities sold; (iv) any delay or failure of any company, corporation, or other body in charge of registering or transferring securities in the name of the Custodian, the Fund, the Custodian’s sub-custodians, nominees or agents or any consequential losses arising out of such delay or failure is to transfer such securities including non-receipt of bonus, dividends and rights and other accretions or benefits; (v) delays or inability to perform its duties due to any act of God disorder in market infrastructure with respect to any particular security or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, ; and (vi) the legality any provision of any present or future law or regulation or order of the purchase United States of America, or sale any state thereof, or any foreign country, or political subdivision thereof or of any Securities by or to the Participating Funds or Seller or the propriety court of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo competent jurisdiction. The Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect without liability to the types Fund or any Portfolio for any loss, liability, claim or expense resulting from or caused by anything that is part of Eligible Securities and the issuers Country Risk, including without limitation nationalization, expropriation, currency restrictions, acts of such Eligible Securities that may be used in specific repurchase transactionswar, revolution, riots or terrorism.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 3 contracts
Samples: Custodian Agreement (Dfa Investment Trust Co), Custodian Agreement (Dfa Investment Dimensions Group Inc), Custodian Agreement (Dimensional Investment Group Inc)
Standard of Care. (a) Repo Custodian In the performance of its responsibilities hereunder, Chancellor LGT shall be obligated to exercise reasonable care and diligence in carrying out the provisions performance of its duties and act in good faith and use its best efforts to ensure the accuracy and completeness of all services under this Agreement. In performing services hereunder, Chancellor LGT:
(a) shall be under no duty to take any action on behalf of the Company or the Funds except as specifically set forth herein or as may be specifically agreed to by Chancellor LGT in writing, and in computing the net asset value per Share of a Fund, Chancellor LGT may rely upon any information furnished to it including, without limitation, information (1) as to the accrual of liabilities of a Fund and as to liabilities of a Fund not appearing on the books of account kept by Chancellor LGT, (2) as to the existence, status and proper treatment of reserves, if any, authorized by a Fund, (3) as to the sources of quotations to be used in computing net asset value, (4) as to the fair value to be assigned to any securities or other property for which price quotations are not readily available and (5) as to the sources of information with respect to "corporate actions" affecting portfolio securities of a Fund (information as to "corporate actions" shall include information as to dividends, distributions, interest payments, prepayments, stock splits, stock dividends, rights offerings, conversions, exchanges, recapitalizations, mergers, redemptions, calls, maturity dates and similar actions, including ex-dividend and record dates and the amounts and terms thereof);
(b) shall be responsible and liable for all losses, damages and costs (including reasonable attorneys' fees) incurred by the Company or any Fund which is due to or caused by Chancellor LGT's negligence in the performance of its duties under this Agreement and the Master Agreement and shall be liable or for Chancellor LGT's negligent failure to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care perform such duties as are specifically assumed by Chancellor LGT in this Agreement, as further provided that, to the extend that duties, obligations and responsibilities are not expressly set forth in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence ofAgreement, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian Chancellor LGT shall not be liable to Seller or the Funds for (i) any action taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act or omission that does not constitute willful misfeasance, bad faith or negligence on the part of God Chancellor LGT or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held reckless disregard by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery Chancellor LGT of such Eligible Securities or the failure to receive duties, obligations and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.responsibilities; and
(c) Repo Custodian without limiting the generality of the foregoing, Chancellor LGT shall not not, in connection with Chancellor LGT's duties under this Agreement, be under any duty or obligation to ascertain whether inquire into and shall not be liable for or in respect of:
(1) the validity or invalidity or authority or lack of authority of any Securities at Oral or Written Instruction, notice or other instrument which conforms to the applicable requirements of this Agreement, if any time delivered and that Chancellor LGT reasonably believes to be genuine; and
(2) delays or held errors or loss of data occurring by it are such as properly may reason of circumstances beyond Chancellor LGT's control including, without limitation, acts of civil or military authorities, national emergencies, labor difficulties, fire, mechanical breakdown, denial of access, earthquake, flood or catastrophe, acts of God, insurrection, war, riots, or failure of the mails, transportation, communication or power supply. Notwithstanding any other provisions of this Agreement, the following provisions shall apply with respect to Chancellor LGT's computation of a Fund's net asset value: Chancellor LGT shall be held to the exercise of reasonable care in computing and determining net asset value as provided in Section 4(a), above, but shall not be held accountable or liable for any losses, damages or expenses of a Fund or any Shareholder or former Shareholder may incur arising from or based upon errors or delays in the determination of such net asset value unless such error or delay was due to Chancellor LGT's negligence or willful misfeasance in the computation and determination of such net asset value. The parties hereto acknowledge, however, that Chancellor LGT causing an error or delay in the determination of net asset value may, but does not in an of itself, constitute negligence or willful misfeasance. In no event shall Chancellor LGT be liable or responsible to the Company or a Fund or any other party for any error or delay which continued or was undetected after the date of an audit of the Company or any Fund performed by the Participating Funds; provided that notwithstanding anything to certified public accountants employed by the contrary hereinCompany if, Repo Custodian shall be obligated to act in the exercise of reasonable care in accordance with generally accepted accounting principles, such accountants should have become aware of such error or delay in the guidelines and proper instructions course of performing such audit. Chancellor LGT's liability for any such negligence or willful misfeasance which results in an error in determination of such net asset value be limited to the direct out-of-pocket loss a Fund and/or any Shareholder or former Shareholder shall actually incur. Without limiting the generality of the Participating Fundsforegoing, Chancellor LGT shall not be held accountable or liable to a Fund a Shareholder or former Shareholder or any other person for any delays or losses, damages or expenses any of them may suffer or incur resulting from (1) Chancellor LGT's failure to receive timely and suitable notification concerning quotations, corporate actions or similar matters relating to or affecting portfolio securities of a Fund or (2) any errors in the Custodian on behalf computation of the Participating Fundsa net asset value based upon or arising out of quotations or information as to corporate actions if received by Chancellor LGT from a source that Chancellor LGT was authorized to rely upon. Nevertheless, with respect Chancellor LGT will use its best judgment in determining whether to the types of Eligible Securities and the issuers of such Eligible Securities verify through other sources any information that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian it has received as to quotations or corporate actions if Securities held by Repo Custodian are in default or if payment on any Securities Chancellor LGT has been refused after due demand and presentation and Repo Custodian shall take action reason to effect collection of believe that any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such actioninformation is incorrect.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 2 contracts
Samples: Fund Accounting and Pricing Agent Agreement (Gt Global Variable Investment Series), Fund Accounting and Pricing Agent Agreement (G T Investment Funds Inc)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees safekeeping of Property in each Account and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the FundsAgreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted in good faith by the Custodian hereunder or under any delay or Instructions. The Custodian shall be liable to the Customer for any loss which shall occur directly as the result of the failure of any Subcustodian to exercise reasonable care with respect to the safekeeping of such Securities. With respect to Securities Systems, the Custodian shall only be liable for losses arising from the employment of such Securities System caused by the Bank's own failure to act as may be required under this Agreement or under exercise reasonable care. In the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness event of any security received, delivered or held loss to the Customer by it pursuant to this Agreement or the Master Agreement, (vi) the legality reason of failure of the purchase Custodian or sale of any Securities by or Subcustodian to utilize reasonable care, the Custodian shall be liable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except Customer to the extent of Repo Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, assess thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of Securities and any Cash Collateral), (viicounsel) incurred by the due authority Custodian as a result of any person listed on Schedule C to act on behalf improper or unauthorized use of Custodian, Seller such terminal by the Customer or the Funds, as the case may be, with by any others. All collections of funds or other property paid or distributed in respect to this Agreement or (viii) Securities in an Account, including funds involved in third-party foreign exchange transactions, shall be made at the errors risk of the Pricing ServicesCustomer. The Custodian shall have no liability for any loss occasioned by delay in the actual receipt of notice by the Custodian or by its subcustodian of any payment, broker's brokers receipt or broker dealers set forth other transaction regarding Securities in Schedule B.
(b) Repo an Account respect of which the Custodian has agreed to take action as provided in Section 2 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draftcaused by, or other instrument resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; acts of war, terrorism, insurrection or revolution; strikes or work stoppages; the inability of a local clearing and settlement system to settle transactions for reasons beyond the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting control of the Seller Account Custodian; hurricane, cyclone, earthquake, volcanic eruption, nuclear fusion, fission, radioactivity or a Transaction Account through the Securities System, except that other acts of God. The provisions of this Paragraph 10(b) Section shall not be deemed to limit the liability survive termination of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 2 contracts
Samples: Custody Agreement (Philadelphia Fund Inc), Custody Agreement (Eagle Growth Shares Inc)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees safekeeping of Property in each Account and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the reasonable fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or failure omission to act of any Subcustodian to the same extent as may be required under this Agreement or under if the Master Agreement when Custodian committed such delay or failure is due act itself. With respect to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity Custodian shall only be responsible or genuineness liable for losses arising from employment of such Securities System caused by the Custodian's own failure to exercise reasonable care. In the event of any security received, delivered or held loss to the Customer by it pursuant to this Agreement or the Master Agreement, (vi) the legality reason of the purchase failure of the Custodian or sale of any Securities by or a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the reasonable fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in an Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in each Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 2 contracts
Samples: Custodian Agreement (Kent Funds), Custodian Agreement (Kent Funds)
Standard of Care. (a) Repo In performing the services hereunder, the Custodian shall act without negligence, willful misconduct, willful misfeasance, fraud, bad faith, reckless disregard of its duties and obligations under this Agreement and with the reasonable care, prudence, diligence, and skill that may be reasonably expected of a leading provider of custody services in carrying out all of its duties and obligations under this Agreement. The Custodian shall be obligated to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement kept indemnified by and shall be liable to each of the Funds and Seller for any expenses or damages without liability to the Funds or Seller Fund for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action taken or omitted by it in good faith without negligence; provided that, the Custodian shall not be indemnified against any liability (or any expenses incident to such liability) arising out of the Custodian’s failure to exercise its standard of care set out in reliance upon proper instructionsthis Section 16.1. Except as may arise from the Custodian’s failure to exercise its standard of care, the Custodian shall be without liability to the Fund for any loss or expense resulting from or caused by: (i) events or circumstances beyond the reasonable control of the Custodian or any sub-custodian or Securities System or any agent or nominee of any of the foregoing, including, without limitation, the interruption, suspension or restriction of trading on or the closure of any securities market, power or other mechanical or technological failures or interruptions, computer viruses or communications disruptions, work stoppages, natural disasters, or other similar events or acts; (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed errors by the proper party Fund or parties, its duly authorized investment manager or investment adviser in their instructions to the Custodian provided such instructions have been in accordance with this Agreement; (iii) any delay or failure of any broker, agent or intermediary, central bank or other commercially prevalent payment or clearing system to act as may be required under this Agreement deliver to the Custodian’s sub-custodian or under agent securities purchased or in the Master Agreement when remittance or payment made in connection with securities sold; (iv) any delay or failure of any company, corporation, or other body in charge of registering or transferring securities in the name of the Custodian, the Fund, the Custodian’s sub-custodians, nominees or agents or any consequential losses arising out of such delay or failure is to transfer such securities including non-receipt of bonus, dividends and rights and other accretions or benefits; (v) delays or inability to perform its duties due to any act of God disorder in market infrastructure with respect to any particular security or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, ; and (vi) the legality any provision of any present or future law or regulation or order of the purchase United States of America, or sale any state thereof, or any foreign country, or political subdivision thereof or of any Securities by or to the Participating Funds or Seller or the propriety court of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo competent jurisdiction. The Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect without liability to the types Fund or any Portfolio for any loss or expense resulting from or caused by anything that is part of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactionsCountry Risk.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 2 contracts
Samples: Master Custodian Agreement (WisdomTree Digital Trust), Master Custodian Agreement (WisdomTree Digital Trust)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) any delay incurred by the Custodian and arising out of action taken or failure to act as may be required under this Agreement omitted with reasonable care by the Custodian hereunder or under any Instructions. Without limiting the Master Agreement when such delay or failure is due generality of the foregoing, the Custodian shall not have any duty to any act of God or war, (iv) make inquiry as to the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security receivedInstructions furnished by any person authorized as provided above and shall be fully protected in relying on any Instructions furnished by any person signing as, delivered holding or held by it pursuant identifying himself or herself as, or stating that he or she is, a person who has been so authorized The Custodian shall be liable to this Agreement the Customer for any act or the Master Agreement, (vi) the legality of the purchase or sale omission to act of any Securities by or Subcustodian to the Participating Funds or Seller or same extent as if the propriety of Custodian committed such act itself, provided notwithstanding the amount for which foregoing, the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable for any losses due to Seller the insolvency of a Subcustodian as long as it has exercised reasonable care in the selection of such Subcustodian.. With respect to a U.S. Securities System, the Custodian shall only be responsible or liable for losses arising from employment of such Securities System caused by the Funds forCustodian's own failure to exercise reasonable care. With respect to the placement and maintenance of Customer's Foreign Assets with a non-U.S. Securities System, the Custodian shall only be responsible or considered liable for losses caused by its failure to comply with Section 10(c) of this Agreement. With respect to the placement and maintenance of Customer's Foreign Assets with a non-U.S. Subcustodian, the Custodian shall only be responsible or liable for losses caused by its failure to comply with Section 5(b) of this Agreement. In the custodian of, event of any Eligible Securities loss to the Customer by reason of the failure of the Custodian or a Subcustodian to utilize reasonable care (or any money other standard of care provided for in this Agreement), the Custodian shall be liable to the Customer to the extent of the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be used in a repurchase transactionliable for any consequential or special damages. The Custodian shall be entitled to rely, whether and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or not omitted pursuant to such money is represented by any check, draft, advice. In the event the Customer utilizes an electronic or other instrument similar system to communicate with Custodian for any purpose, including, without limitation, the furnishing of Instructions, the Customer shall be fully responsible for the payment security of moneythe connecting terminal utilized by Customer, until access thereto and the Eligible Securities have been delivered proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agrees to defend and indemnify the Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal. Should the Customer authorize, in accordance with Paragraph 3 the terms hereof, any agent to communicate with Custodian and such agent utilizes any such system to so communicate, the Customer shall be responsible for the use of such system and shall defend, indemnify and hold harmless Custodian for such use to the same extent as if such system were being used by the Customer to communicate with the Custodian. In the event Customer or until Repo any agent authorized pursuant to the terms hereof, accesses Account information via a Website, Customer confirms that it is aware that communications over the internet cannot be guaranteed to be secure and that there is a risk that information displayed via the internet or contained within any communication made over the internet, including potentially confidential information, may be intercepted, lost, destroyed or delayed in display or transmission. Customer specifically agrees that the Custodian actually receives and collects such money on behalf shall have no liability whether in contract, tort or otherwise for any direct, indirect or consequential loss or damage which may be suffered by Customer or any agent in connection with access made to Account information via a Website. All collections of Seller funds or other property paid or distributed in respect of Securities in an Account, including funds involved in third-party foreign exchange transactions, shall be made at the Funds directly risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any loss occasioned by delay in the actual receipt of notice by the Custodian or by a Subcustodian of any payment, redemption or other transaction regarding Securities in each Account in respect of which the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed Custodian has agreed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo take action as provided in Section 3 hereof. The Custodian shall not be under liable for any duty loss, liability, claim or obligation to ascertain expense resulting from, or caused by, anything which is a part of Country Risk (as described in Section 5 hereof) or acts of governmental authorities (whether any Securities at any time delivered to de jure or held by it are such as properly may be held by de facto), including in each case, without limitation, (i) nationalization, expropriation, and the Participating Fundsimposition of currency restrictions; provided that notwithstanding anything devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to the contrary herein, Repo Custodian shall be obligated banking or securities industry; (ii) market conditions that prevent the orderly execution of securities transactions or affect the value of Property or the inability of a local clearing and settlement system to act in accordance with settle transactions for reasons beyond the guidelines and proper instructions control of the Participating FundsCustodian; (iii) acts of war, terrorism, insurrection or revolution; strikes or work stoppages; or (iv) hurricane, cyclone, earthquake, volcanic eruption, nuclear fusion, fission or radioactivity, or the Custodian on behalf other acts of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 2 contracts
Samples: Custodian Agreement (Scudder Rreef Real Estate Fund Inc), Custodian Agreement (Scudder Rreef Securities Trust)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in the Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or omission to act of any Subcustodian to the same extent as if the Custodian committed such act itself. Where, under applicable law, regulation, or practice (in order to facilitate the settlement of transactions related thereto), or where the Customer otherwise elects, Securities are held in a Securities System in a particular market, the Custodian shall only be responsible or liable for losses arising from employment of such Securities System caused by the Custodian's own failure to act as may exercise reasonable care. Where the Custodian otherwise elects to employ a Securities System to hold Securities in a particular market, the Custodian shall be required under this Agreement or under liable to the Master Agreement when such delay or failure is due to Customer for any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale omission of any Securities by or System to the Participating Funds or Seller or same extent as if the propriety Custodian committed such act itself. In the event of any loss to the Customer by reason of the amount for which failure of the same are purchased Custodian or sold (except a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in the Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in the Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 2 contracts
Samples: Custodian Agreement (Short Intermediate Us Government Securities Portfolio), Custodian Agreement (Tax Free Money Portfolio)
Standard of Care. (a) Repo Custodian The Bank shall be obligated to exercise reasonable care and diligence perform only such duties as are set forth in carrying out this Agreement or expressly contained in instructions given to Bank which are consistent with the provisions of this Agreement.
(i) The Bank will use reasonable care with respect to its obligations under this Agreement and the Master Agreement and safekeeping of Property. The Bank shall be liable to each the Fund for any loss which shall occur as the result of the Funds failure of a subcustodian or an eligible foreign securities depository to exercise reasonable care with respect to the safekeeping of such Property to the same extent that the Bank would be liable to the Fund if the Bank were holding such Property in New York. In the event of any loss to the Fund by reason of the failure of the Bank or its subcustodian or an eligible foreign securities depository to exercise reasonable care, the Bank shall be liable to the Fund only to the extent the Fund's direct damages and Seller expenses, to be determined based on, but not limited to, the market value of the Property which is the subject of the loss at the date of discovery of such loss, and without reference to any special conditions or circumstances.
(ii) The Bank will not be responsible for any expenses act, omission, default or damages for the solvency of any broker or agent (other than as provided herein) which it or a subcustodian appoints and uses unless such appointment and use were made or done negligently or in bad faith.
(iii) The Bank shall be indemnified by, and without liability to the Funds Fund and the particular Portfolio of the Fund involved for any action taken or Seller for breach omitted by the Bank whether pursuant to Instructions or otherwise within the scope of Repo Custodian's standard of care this Agreement if such act or omission was in good faith and without negligence. In performing its obligations under this Agreement, as further provided the Bank may rely on the genuineness of any document which it believes in this Paragraph. Repo Custodian assumes responsibility good faith and without negligence to have been validly executed.
(iv) The Fund, on behalf of the particular Portfolio of the Fund involved, agrees to cause such Portfolio to pay for loss to any property held by it pursuant to and hold the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss Bank harmless from any cause but liability or loss resulting from the imposition or assessment of any taxes or other governmental charges, and any related expenses with respect to income from or Property in such Portfolio's Custody Account and Deposit Account.
(v) The Bank shall be under no obligation entitled to obtain insurance directly rely, and may act upon the advice of counsel (who may be counsel for the benefit of the Funds. So long as Fund) on all matters and to the extent that Repo Custodian exercises reasonable care and diligence and acts shall be without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds liability for (i) any action reasonably taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it without negligence pursuant to this Agreement or the Master Agreement, such advice.
(vi) The Bank need not maintain any insurance for the legality exclusive benefit of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), Fund.
(vii) Without limiting the due authority foregoing, the Bank shall not be liable for any loss which results from:
1) the general risk of any person listed on Schedule C investing, or
2) subject to act on behalf Section 12(a)(i) hereof, investing or holding Property in a particular country including, but not limited to, losses resulting from nationalization, expropriation or other governmental actions; regulation of Custodianthe banking or securities -20- industry; currency restrictions, Seller devaluations or fluctuations; and market conditions which prevent the Funds, as orderly execution of securities transactions or affect the case may be, with respect to this Agreement or value of Property.
(viii) No party shall be liable to the errors other for any loss due to forces beyond its control including but not limited to strikes or work stoppages, acts of the Pricing Serviceswar or terrorism, broker's brokers insurrection, revolution, nuclear fusion, fission or broker dealers set forth in Schedule B.radiation, or acts of God.
(b) Repo Custodian Consistent with and without limiting the first paragraph of this Section 12, it is specifically acknowledged that the Bank shall not be liable have no duty or responsibility to:
(i) Question Instructions or make any suggestions to Seller the Fund or an Authorized Person regarding such Instructions;
(ii) Supervise or make recommendations with respect to investments or the Funds forretention of Securities;
(iii) Subject to Section 12(a)(ii) hereof, evaluate or considered report to be the custodian ofFund or an Authorized Person regarding the financial condition of any broker, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, agent or other instrument for the payment of money, until the Eligible party to which Securities have been are delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller payments are made pursuant to this Agreement; or
(iv) Review or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results reconcile trade confirmations received from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreementbrokers.
(c) Repo Custodian The Bank shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything provide to the contrary hereinFund, Repo Custodian shall be obligated to act on an annual basis, a report confirming that the arrangements hereunder remain in accordance compliance with the guidelines and proper instructions rules of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of Exchange Commission governing such Eligible Securities that may be used in specific repurchase transactionsarrangements.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 1 contract
Standard of Care. (a) Repo In performing the services hereunder, the Custodian shall act without negligence, willful misconduct, willful misfeasance, fraud, bad faith, reckless disregard of its duties and obligations under this Agreement and with the reasonable care, prudence, diligence, and skill that may be reasonably expected of a leading provider of custody services in carrying out all of its duties and obligations under this Agreement. The Custodian shall be obligated to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement kept indemnified by and shall be liable to each of the Funds and Seller for any expenses or damages without liability to the Funds or Seller Fund for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action taken or omitted by it in good faith without negligence; provided that, the Custodian shall not be indemnified against any liability (or any expenses incident to such liability) arising out of the Custodian’s failure to exercise its standard of care set out in reliance upon proper instructionsthis Section 16.
1. Except as may arise from the Custodian’s failure to exercise its standard of care, the Custodian shall be without liability to the Fund for any loss or expense resulting from or caused by: (i) events or circumstances beyond the reasonable control of the Custodian or any sub-custodian or Securities System or any agent or nominee of any of the foregoing, including, without limitation, the interruption, suspension or restriction of trading on or the closure of any securities market, power or other mechanical or technological failures or interruptions, computer viruses or communications disruptions, work stoppages, natural disasters, or other similar events or acts; (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed errors by the proper party Fund or parties, its duly authorized investment manager or investment adviser in their instructions to the Custodian provided such instructions have been in accordance with this Agreement; (iii) any delay or failure of any broker, agent or intermediary, central bank or other commercially prevalent payment or clearing system to act as may be required under this Agreement deliver to the Custodian’s sub-custodian or under agent securities purchased or in the Master Agreement when remittance or payment made in connection with securities sold; (iv) any delay or failure of any company, corporation, or other body in charge of registering or transferring securities in the name of the Custodian, the Fund, the Custodian’s sub-custodians, nominees or agents or any consequential losses arising out of such delay or failure is to transfer such securities including non-receipt of bonus, dividends and rights and other accretions or benefits; (v) delays or inability to perform its duties due to any act of God disorder in market infrastructure with respect to any particular security or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, ; and (vi) the legality any provision of any present or future law or regulation or order of the purchase United States of America, or sale any state thereof, or any foreign country, or political subdivision thereof or of any Securities by or to the Participating Funds or Seller or the propriety court of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo competent jurisdiction. The Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect without liability to the types Fund or any Portfolio for any loss or expense resulting from or caused by anything that is part of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactionsCountry Risk.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 1 contract
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or failure omission to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or Subcustodian to the Participating Funds or Seller or same extent as if the propriety of Custodian committed such act itself, provided notwithstanding the amount for which foregoing, the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable for any losses due to Seller the insolvency of a Subcustodian as long as it has exercised reasonable care in the selection of such Subcustodian. With respect to a Securities System, the Custodian shall only be responsible or liable for losses arising from employment of such Securities System caused by the Funds forCustodian's own failure to exercise reasonable care. In the event of any loss to the Customer by reason of the failure of the Custodian or a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Customer to the extent of the Customer's actual damages (including losses incurred in connection with the sale or considered redemption of securities issued by the Customer as a direct result of the Custodian's failure to exercise reasonable care in properly crediting Property to an Account pursuant to the terms of this Agreement) at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the custodian of, Customer) on all matters and shall be without liability for any Eligible Securities action reasonably taken or any money omitted pursuant to be used in a repurchase transaction, whether or not such money is represented by any check, draft, advice. In the event the Customer utilizes an electronic or other instrument similar system to communicate with Custodian for any purpose, including, without limitation, the furnishing of Instructions, the Customer shall be fully responsible for the payment security of moneythe connecting terminal utilized by Customer, until access thereto and the Eligible Securities have been delivered proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agrees to defend and indemnify the Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal. Should the Customer authorize, in accordance with Paragraph 3 the terms hereof, any agent to communicate with Custodian and such agent utilizes any such system to so communicate, the Customer shall be responsible for the use of such system and shall defend, indemnify and hold harmless Custodian for such use to the same extent as if such system were being used by the Customer to communicate with the Custodian. All collections of funds or until Repo other property paid or distributed in respect of Securities in an Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian actually receives and collects such money on behalf shall have no liability for any loss occasioned by delay in the actual receipt of Seller or notice by the Funds directly Custodian or by a Subcustodian of any payment, redemption or other transaction regarding Securities in each Account in respect of which the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed Custodian has agreed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo take action as provided in Section 3 hereof. The Custodian shall not be under liable for any duty loss resulting from, or obligation to ascertain caused by, or resulting from acts of governmental authorities (whether any Securities at any time delivered to de jure or held by it are such as properly may be held by de facto), including, without limitation, nationalization, expropriation, and the Participating Fundsimposition of currency restrictions; provided that notwithstanding anything devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to the contrary hereinbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, Repo Custodian shall be obligated terrorism, insurrection or revolution; strikes or work stoppages; the inability of a local clearing and settlement system to act in accordance with settle transactions for reasons beyond the guidelines and proper instructions control of the Participating FundsCustodian; hurricane, cyclone, earthquake, volcanic eruption, nuclear fusion, fission or radioactivity, or the Custodian on behalf other acts of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 1 contract
Standard of Care. (a) Repo Custodian is hereby amended by deleting paragraph (a) thereof in its entirety and substituting therefore the following:
(a) Barclays shall be obligated responsible for the performance only of such duties as are specifically set forth herein or contained in Instructions given to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held Barclays by it pursuant Authorized Persons which are not contrary to the provisions of this Agreement Agreement. Barclays will use reasonable care with respect to the safekeeping of the Assets in the Custody Accounts and Cash Accounts and in the performance of its functions and duties under this Agreement. Barclays shall be liable to, and indemnify and hold harmless, the Custodian and the Customer, for any loss which shall occur as the direct and foreseeable result of the failure of a Subcustodian to exercise reasonable care with respect to the safekeeping of Assets or in the performance of its functions or duties in connection herewith to the same extent that such Subcustodian would be liable to the Custodian and the Customer, as under applicable law if such Subcustodian and the Custodian and the Customer had directly entered into a custodial agreement governed by the law of the country of such Subcustodian. In the event of any loss to the Custodian or the Customer by reason of the failure of Barclays or its Subcustodian to utilize reasonable care, Barclays shall be liable to, and indemnify and hold harmless, the Custodian and the Customer to the extent of such party's direct and foreseeable damages, to be determined (in the case of a loss of property) based on the market value in U.S. dollars of the property which is occasioned the subject of the loss at the date on which actual notice of such loss is received by Barclays, and without reference to any special conditions or circumstances. Barclays shall be held to the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause exercise of reasonable care in carrying out this Agreement but shall be under no obligation to obtain insurance directly indemnified by, and shall be without liability to, the Custodian and the Customer for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action taken or omitted by Barclays in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions without negligence in accordance with this Agreement Agreement. Barclays shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Master Agreement within Custodian) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. Barclays will be subject to the reasonableness standard of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerarticulated above.
Appears in 1 contract
Standard of Care. 1. The Custodian will use reasonable care, prudence and diligence with respect to its obligations under this Agreement, including its obligation to serve as the Fund’s foreign custody manager pursuant to Section 3A hereof and to report on and monitor risks of foreign depositories as provided in Sections 4(e) and (af) Repo hereof, and the safekeeping of property of the Portfolios. The Custodian shall be obligated liable to, and shall indemnify and hold harmless the Fund from and against any loss which shall occur as the result of the failure of the Custodian or a Sub-Custodian to exercise reasonable care, prudence and diligence with respect to their respective obligations under this Agreement and the safekeeping of such property. The determination of whether the Custodian or Sub-Custodian has exercised reasonable care, prudence and diligence in connection with their obligations under this Agreement shall be made in light of prevailing standards applicable to professional custodians in the jurisdiction in which such custodial services are performed. In the event of any loss to the Fund by reason of the failure of the Custodian or a Sub-Custodian to exercise reasonable care, prudence and diligence, the Custodian shall be liable to the Fund only to the extent of the Fund’s direct damages and expenses, which damages, for purposes of property only, shall be determined based on the market value of the property which is the subject of the loss at the date of discovery of such loss and without reference to any special condition or circumstances.
2. The Custodian will not be responsible for any act, omission, or default of, or for the solvency of, any central securities depository or clearing agency.
3. The Custodian will not be responsible for any act, omission, or default of, or for the solvency of, any broker or agent (not referred to in paragraph (b)(2) above) which it or a Sub-Custodian appoints and uses unless such appointment and use is made or done negligently or in bad faith. In the event such an appointment and use is made or done negligently or in bad faith, the Custodian shall be liable to the Fund only for direct damages and expenses (determined in the manner described in paragraph (b)(1) above) resulting from such appointment and use and, in the case of any loss due to an act, omission or default of such agent or broker, only to the extent that such loss occurs as a result of the failure of the agent or broker to exercise reasonable care (“reasonable care” for this purpose to be determined in light of the prevailing standards applicable to agents or brokers, as appropriate, in the jurisdiction where the services are performed).
4. The Custodian shall be entitled to rely, and diligence in carrying out may act, upon the provisions advice of this Agreement and counsel (who may be counsel for the Master Agreement Fund) on all matters and shall be liable to each of the Funds and Seller without liability for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action reasonably taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith and without negligence pursuant to such advice.
5. The Custodian shall be entitled to rely upon any notice, request, certificate or other instrument Instruction it receives pursuant to the applicable Sections of this Agreement that it reasonably believed by it believes to be genuine and to be signed from an Authorized Person. In the event that the Custodian receives oral Instructions, the Fund or its designee shall cause to be delivered to the Custodian, by the proper party close of business on the same day that such oral Instructions were given to the Custodian, written Instructions confirming such oral Instructions, whether by hand delivery, telex or partiesotherwise. The Fund agrees that the fact that no such confirming written Instructions are received by the Custodian shall in no way affect the validity of the transactions or enforceability of the transactions hereby authorized by the Fund. The Fund agrees that the Custodian shall incur no liability to the Fund in connection with (i) acting upon oral Instructions given to the Custodian hereunder, provided such instructions reasonably appear to have been received from an Authorized Person or (iiiii) any delay or failure deciding not to act as may be required under this Agreement solely upon oral Instructions, provided that the Custodian first contacts the giver of such oral Instructions and requests written confirmation immediately following any such decision not to act.
6. The Custodian shall supply the Fund or under its designee with such daily information regarding the Master Agreement when such delay or failure is due to any act cash and Securities positions and activity of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, each Portfolio as the case may be, with respect Custodian and the Fund or its designee shall from time to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall time agree. It is understood that such information will not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or audited by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any represents that such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it information will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo the best information then available to the Custodian. The Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with responsibility whatsoever under this Agreement for the pricing of Securities, accruing for income, valuing the effect of Corporate Actions, or for the failure of the Fund or its designee to reconcile differences between the information supplied by the Custodian and information obtained by the Fund or its designee from other sources, including but not limited to pricing vendors and the Master Agreement within Fund’s investment adviser. Subject to the standard foregoing, to the extent that any miscalculation by the Fund or its designee of care set forth a Portfolio’s net asset value is attributable to the willful misfeasance, bad faith or negligence of the Custodian (including any Sub-Custodian ) in Paragraph 10(a) above and supplying or omitting to supply the Fund or its designee with information as aforesaid, the Custodian shall be liable to the Fund for any resulting loss (subject to such de minimis rule of change in a commercially reasonable mannervalue as the Board of Directors of the Fund may from time to time adopt).
Appears in 1 contract
Standard of Care. (a) Repo Custodian shall be obligated to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but Placement Agent shall be under no obligation duty to obtain insurance directly for the benefit of the Funds. So long take any action under this Agreement except as and specifically set forth herein or as may be specifically agreed to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian by Placement Agent in a written amendment to this Agreement.
(b) Neither Placement Agent nor any other Placement Agent Indemnitee (as defined in Section 10) shall not be liable to Seller or the Funds for (i) any action taken or omitted in good faith in for any failure to take an action based on reasonable reliance upon proper instructionsupon:
(i) the written instructions of the Fund (including an officer of the Fund), or of counsel to the Fund; for purposes of this clause, procedures adopted by Placement Agent related to the implementation by Placement Agent of its obligations hereunder and the other activities contemplated to be taken by Placement Agent hereunder (acting individually or through its registered representatives) that have been reviewed and approved by the Fund or counsel to the Fund shall be deemed to be written instructions of the Fund or counsel to the Fund;
(ii) any action taken written instruction or omitted in good faith certified copy of any resolution of the Board of directors, trustees or managers of the Investment Adviser or the Fund, and Placement Agent may rely upon the genuineness of any noticesuch document or copy thereof reasonably believed by Placement Agent to have been validly executed; or
(iii) any signature, instruction, request, certificate letter of transmittal, certificate, opinion of counsel, statement, instrument, report, notice, consent, order, or other instrument document reasonably believed by it Placement Agent to be genuine and to be have been signed or presented by the Investment Adviser or the Fund or other proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian Placement Agent shall not be under any duty or obligation to ascertain whether inquire into the validity or invalidity or authority or lack thereof of any Securities at statement, written instruction, resolution, signature, request, letter of transmittal, certificate, opinion of counsel, instrument, report, notice, consent, order, or any time delivered other document or instrument which Placement Agent reasonably believes to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding genuine.
(c) Notwithstanding anything in this Agreement to the contrary hereincontrary, Repo Custodian Placement Agent shall be obligated liable to act in accordance with the guidelines Fund and proper instructions any of the Participating Funds, or the Custodian on behalf Fund’s shareholders only for any damages arising out of the Participating Funds, with respect Placement Agent’s failure to perform its duties under this Agreement to the types of Eligible Securities and extent such damages were caused by Placement Agent’s willful misfeasance, gross negligence or reckless disregard in the issuers performance of such Eligible Securities that may be used in specific repurchase transactionsduties.
(d) Repo Custodian promptly Placement Agent shall notify not be liable for the Fund Agent and delays or errors of other service providers to the Custodian if Securities held Fund, including the failure by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions service provider to provide information to Placement Agent when they have a duty to do so (irrespective of the Participating Funds, whether that duty is owed specifically to Placement Agent or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such actiona third party).
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 1 contract
Samples: Private Placement Agent Agreement (Forum CRE Income Fund)
Standard of Care. (a) Repo Custodian The Bank shall be obligated to exercise reasonable care and diligence perform only such duties as are set forth in carrying out this Agreement or expressly contained in instructions given to Bank which are consistent with the provisions of this Agreement.
(i) The Bank will use reasonable care with respect to its obligations under this Agreement and the Master Agreement and safekeeping of Property. The Bank shall be liable to each the Fund for any loss which shall occur as the result of the Funds failure of a subcustodian or an eligible foreign securities depository to exercise reasonable care with respect to the safekeeping of such Property to the same extent that the Bank would be liable to the Fund if the Bank were holding such Property in New York. In the event of any loss to the Fund by reason of the failure of the Bank or its subcustodian or an eligible foreign securities depository to exercise reasonable care, the Bank shall be liable to the Fund only to the extent the Fund's direct damages and Seller expenses, to be determined based on, but not limited to, the market value of the Property which is the subject of the loss at the date of discovery of such loss, and without reference to any special conditions or circumstances.
(ii) The Bank will not be responsible for any expenses act, omission, default or damages for the solvency of any broker or agent (other than as provided herein) which it or a subcustodian appoints and uses unless such appointment and use were made or done negligently or in bad faith.
(iii) The Bank shall be indemnified by, and without liability to the Funds Fund and the particular Portfolio of the Fund involved for any action taken or Seller for breach omitted by the Bank whether pursuant to Instructions or otherwise within the scope of Repo Custodian's standard of care this Agreement if such act or omission was in good faith and without negligence. In performing its obligations under this Agreement, as further provided the Bank may rely on the genuineness of any document which it believes in this Paragraph. Repo Custodian assumes responsibility good faith and without negligence to have been validly executed.
(iv) The Fund, on behalf of the particular Portfolio of the Fund involved, agrees to cause such Portfolio to pay for loss to any property held by it pursuant to and hold the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss Bank harmless from any cause but liability or loss resulting from the imposition or assessment of any taxes or other governmental charges, and any related expenses with respect to income from or Property in such Portfolio's Custody Account and Deposit Account.
(v) The Bank shall be under no obligation entitled to obtain insurance directly rely, and may act upon the advice of counsel (who may be counsel for the benefit of the Funds. So long as Fund) on all matters and to the extent that Repo Custodian exercises reasonable care and diligence and acts shall be without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds liability for (i) any action reasonably taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it without negligence pursuant to this Agreement or the Master Agreement, such advice.
(vi) The Bank need not maintain any insurance for the legality exclusive benefit of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), Fund.
(vii) Without limiting the due authority foregoing, the Bank shall not be liable for any loss which results from:
1) the general risk of any person listed on Schedule C investing, or
2) subject to act on behalf Section 12(a)(i) hereof, investing or holding Property in a particular country including, but not limited to, losses resulting from nationalization, expropriation or other governmental actions; regulation of Custodianthe banking or securities industry; currency restrictions, Seller devaluations or fluctuations; and market conditions which prevent the Funds, as orderly execution of securities transactions or affect the case may be, with respect to this Agreement or value of Property.
(viii) No party shall be liable to the errors other for any loss due to forces beyond its control including but not limited to strikes or work stoppages, acts of the Pricing Serviceswar or terrorism, broker's brokers insurrection, revolution, nuclear fusion, fission or broker dealers set forth in Schedule B.radiation, or acts of God.
(b) Repo Custodian Consistent with and without limiting the first paragraph of this Section 12, it is specifically acknowledged that the Bank shall not be liable have no duty or responsibility to:
(i) Question Instructions or make any suggestions to Seller the Fund or an Authorized Person regarding such Instructions;
(ii) Supervise or make recommendations with respect to investments or the Funds forretention of Securities;
(iii) Subject to Section 12(a)(ii) hereof, evaluate or considered report to be the custodian ofFund or an Authorized Person regarding the financial condition of any broker, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, agent or other instrument for the payment of money, until the Eligible party to which Securities have been are delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller payments are made pursuant to this Agreement; or
(iv) Review or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results reconcile trade confirmations received from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreementbrokers.
(c) Repo Custodian The Bank shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything provide to the contrary hereinFund, Repo Custodian shall be obligated to act on an annual basis, a report confirming that the arrangements hereunder remain in accordance compliance with the guidelines and proper instructions rules of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of Exchange Commission governing such Eligible Securities that may be used in specific repurchase transactionsarrangements.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 1 contract
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or omission to act of any Subcustodian to the same extent as if the Custodian committed such act itself. Where, under applicable law, regulation, or practice (in order to facilitate the settlement of transactions related thereto), or where the Customer otherwise elects, Securities are held in a Securities System in a particular market, the Custodian shall only be responsible or liable for losses arising from employment of such Securities System caused by the Custodian's own failure to act as may exercise reasonable care. Where the Custodian otherwise elects to employ a Securities System for holding Securities in a particular market, the Custodian shall be required under this Agreement or under liable to the Master Agreement when such delay or failure is due to Customer for any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale omission of any Securities by or System to the Participating Funds or Seller or same extent as if the propriety Custodian committed such act itself. In the event of any loss to the Customer by reason of the amount for which failure of the same are purchased Custodian or sold (except a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in an Account, including funds involved in third- party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in each Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 1 contract
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or failure omission to act of any Subcustodian to the same extent as may be required under this Agreement or under if the Master Agreement when Custodian committed such delay or failure is due act itself. With respect to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity Custodian shall only be responsible or genuineness liable for losses arising from employment of such Securities System caused by the Custodian's own failure to exercise reasonable care. In the event of any security received, delivered or held loss to the Customer by it pursuant to this Agreement or the Master Agreement, (vi) the legality reason of the purchase failure of the Custodian or sale of any Securities by or a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except Customer to the extent of Repo Custodianthe Customer's obligations hereunder actual damages at the time such loss was discovered without reference to determine whether securities are Eligible Securities and to calculate any special conditions or circumstances. In no event shall the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller for any consequential or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo special damages. The Custodian shall be obligated entitled to act in accordance with rely, and may act, on advice of counsel (who may be counsel for the guidelines Customer) on all matters and proper instructions shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Participating FundsCustomer's connecting terminal, or access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to defend and indemnify the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and hold the Custodian if Securities held by Repo Custodian are in default or if payment on harmless from and against any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Fundsall losses, or the Custodian on behalf of the Participating Fundsdamages, and assurances satisfactory to it that it will be reimbursed for its costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in connection with any such action.
(e) Repo Custodian respect of Securities in an Account, including funds involved in third-party foreign exchange transactions, shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and be made at the Master Agreement within the standard risk of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.the
Appears in 1 contract
Samples: Custodian Agreement (Bt Alex Brown Cash Reserve Fund Inc)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees safekeeping of Securities in the Account and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) any delay incurred by the Custodian and arising out of action taken or failure to act as may be required under this Agreement omitted with reasonable care by the Custodian hereunder or under the Master Agreement when such delay or failure is due any Instructions. With respect to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity Custodian shall only be responsible or genuineness liable for losses arising from employment of such Securities System caused by the Custodian's own failure to exercise reasonable care. In the event of any security received, delivered or held loss to the Customer by it pursuant to this Agreement or the Master Agreement, (vi) the legality reason of the purchase failure of the Custodian or sale of any Securities by or its Sub-custodian to utilize reasonable care, the Custodian shall be liable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except Customer to the extent of Repo Custodianthe Customer's obligations hereunder actual damages at the time such loss was discovered without reference to determine whether securities are Eligible Securities and to calculate any special conditions or circumstances. In no event shall the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller for any consequential or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo special damages. The Custodian shall be obligated entitled to act in accordance with rely, and may act, on advice of counsel (who may be counsel for the guidelines Customer) on all matters and proper instructions shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to the Electric On-Line System, the Customer shall be fully responsible for the security of the Participating FundsCustomer's connecting terminal, or access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards and the Customer agrees to defend, indemnify and hold the Custodian harmless from and against any and all liabilities, losses, damages, costs, including attorneys' fees and every other expense of every nature incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by others on behalf the Customer's premises. All collections of funds or other property paid or distributed in respect of Securities in the Account shall be made at the risk of the Participating Funds, with respect Customer. Subject to the types exercise of Eligible Securities and reasonable care, the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no dutiesliability for any loss occasioned by delay in the actual receipt of notice by the Custodian or by its Sub-custodian of any payment, redemption or other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.transaction
Appears in 1 contract
Standard of Care. (a) Repo The Custodian shall be obligated responsible for theperformance of only such duties as are set forth herein or containedin Instructions given to exercise reasonable care and diligence the Custodian which are not the contrary tothe provisions of this Agreement. The Custodian will use reasonablecare with respect to the safekeeping of Property in each Account and,except as otherwise expressly provided herein, in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in itsobligations under this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises thatit has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not beresponsible for the title, validity or genuineness of any Property orother property or evidence of title thereto received by it ordelivered by it pursuant to this Agreement and shall be liable to Seller or the Funds for (i) any action taken or omitted in good faith in reliance upon proper instructionsheld harmlessin acting upon, (ii) any action taken or omitted in good faith upon and may conclusively rely on, without liability forany loss resulting therefrom, any notice, request, consent,certificate or other instrument reasonably believed by it to be genuine begenuine and to be signed or furnished by the proper party or parties,including, without limitation, Instructions, and shall be indemnified by the applicable Portfolio of the Trust for any losses, damages, costsand expenses (iiiincluding, without limitation, the fees and expenses ofcounsel) incurred by the Custodian and arising out of action taken oromitted with reasonable care by the Custodian hereunder or under anyInstructions. The Custodian shall be liable to the applicable Portfolioof the Trust for any delay act or failure omission to act of any Subcustodian to thesame extent as may be required under this Agreement or under if the Master Agreement when Custodian committed such delay or failure is due to any act of God or war, (iv) the actions or omissions of itself. With respectto a Securities System, (v) the title, validity Custodian shall only be responsible or genuineness liablefor losses arising from employment of any security received, delivered or held such Securities System caused by it pursuant theCustodian's own failure to this Agreement or exercise reasonable care. In the Master Agreement, (vi) the legality event of anyloss to a Portfolio of the purchase or sale Trust by reason of any Securities by or the failure of the Custodianor a Subcustodian to utilize reasonable care, the Custodian shall beliable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except applicable Portfolio to the extent of Repo Custodianthe Portfolio's obligations hereunder actualdamages at the time such loss was discovered without reference to determine whether securities are Eligible Securities anyspecial conditions or circumstances. In no event shall the Custodian beliable for any consequential or special damages. The Custodian shall beentitled to rely, and may act, on advice of counsel (who may be counselfor the Trust) on all matters and shall be without liability for anyaction reasonably taken or omitted pursuant to calculate such advice. In the Market Value of Securities and any Cash Collateral)event the Trust, (vii) the due authority of any person listed on Schedule C to act on behalf of Custodianthe Portfolios, Seller or subscribes to anelectronic on-line service and communications system offered by theCustodian, the FundsTrust shall be fully responsible for the security ofthe Trust's connecting terminal, as access thereto and the case may be, proper andauthorized use thereof and the initiation and application ofcontinuing effective safeguards with respect thereto and the Trust, onbehalf of each Portfolio, agrees to this Agreement defend and indemnify the Custodianand hold the Custodian harmless from and against any and all losses,damages, costs and expenses (including the fees and expenses ofcounsel) incurred by the Custodian as a result of any improper orunauthorized use of such terminal by the Trust or (viii) by any others. All collections of funds or other property paid or distributed in respectof Securities in an Account, including funds involved in third-partyforeign exchange transactions, shall be made at the errors risk of the Pricing ServicesapplicablePortfolio of the Trust. Subject to the exercise of reasonable care, broker's brokers the Custodian shall haveno liability for any loss occasioned by delay in the actual receipt ofnotice by the Custodian or broker dealers set forth by a Subcustodian of any payment,redemption or other transaction regarding Securities in Schedule B.
(b) Repo each Accountin respect of which the Custodian has agreed to take action asprovided in Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forforany loss resulting from, or considered caused by, or resulting from acts ofgovernmental authorities (whether de jure or de facto), including,without limitation, nationalization, expropriation, and the impositionof currency restrictions; devaluations of or fluctuations in the valueof currencies; changes in laws and regulations applicable to be thebanking or securities industry; market conditions that prevent theorderly execution of securities transactions or affect the custodian ofvalue ofProperty; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikesor work stoppages; the inability of a local clearing and settlementsystem to be used in a repurchase transactionsettle transactions for reasons beyond the control of theCustodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclearfusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no liability in respect of any loss, damageor expense suffered by the Trust or any Portfolio, insofar as suchloss, damage or expense arises from the performance of the Custodian'sduties hereunder by reason of the Custodian's reliance upon recordsthat were maintained for the Trust or any Portfolio by entities otherthan the Custodian prior to the Custodian's employment under thisAgreement. Except as otherwise provided in this Agreement, the Custodian agreesto indemnify and hold harmless each Portfolio against and from anyloss, damage and expense suffered or incurred by such Portfolio andarising from (i) the bad faith, reckless disregard of duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with willfulmisfeasance, or gross negligence of the Custodian or any Subcustodian;and (ii) any breach of this Agreement and by the Master Agreement within the standard Custodian. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section 13 shall survive termination of thisAgreement.
Appears in 1 contract
Standard of Care. (a) Repo Custodian The Subadviser shall be obligated to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement its best judgment and shall be liable to each of act in good faith in rendering the Funds services listed in paragraphs 2 and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph3 above. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian The Subadviser shall not be liable to Seller or the Funds for (i) any action taken breach by the Manager of any representation or omitted in good faith in reliance upon proper instructionswarranty or material provision of this Agreement, (ii) the Manager’s or the Fund’s violation of any action applicable law or regulation, unless such violation was the result of actions taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed not taken by the proper party Subadviser or partiesinformation provided by the Subadviser, (iii) any delay actual or failure alleged material misstatement or omission in the Prospectus, the Statement, proxy statements or other communications to act as may current or prospective investors, unless the misstatement or omission relates to the Subadviser or services to be required under this Agreement or under provided by the Master Agreement when such delay or failure Subadviser, including the investment strategies and policies to be followed by the Subadviser, and is due to any act of God or warbased on information furnished by the Subadviser, (iv) the actions offer and sale of shares of common stock of the Fund, including without limitation actual or omissions alleged noncompliance with customer suitability, customer identification or anti-money laundering laws or regulations, except that the foregoing shall not apply to liability arising from statements made or documents delivered by the Subadviser in its provision of a Securities System, assistance to the Fund or the Fund’s distributors in their efforts to sell shares of the Fund or (v) any error of judgment or mistake of law or any loss suffered by the title, validity Fund or genuineness of any security received, delivered or held by it pursuant the Manager in connection with the matters to which this Agreement relates, provided that nothing in this Agreement shall be deemed to protect or purport to protect the Master AgreementSubadviser against any liability to the Manager, (vi) the legality of the purchase or sale of any Securities by Trust or to the Participating Funds or Seller or the propriety shareholders of the amount for Fund to which the same are purchased Subadviser would otherwise be subject by reason of willful misfeasance, bad faith or sold (except to gross negligence on its part in the extent performance of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller its duties or the Funds, as the case may be, with respect to this Agreement or (viii) the errors by reason of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian Subadviser’s reckless disregard of its obligations and duties under this Agreement Agreement. The U.S. securities laws impose liabilities under certain circumstances on persons who act in good faith and, therefore, nothing herein shall in any way constitute a waiver or limitation of any rights that the Master Agreement.
(c) Repo Custodian shall not be Fund may have under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactionsU.S. securities laws.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 1 contract
Samples: Subadvisory Agreement (Legg Mason Partners Investment Trust)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care responsible for compliance with the terms and diligence in carrying out the provisions of this Agreement conditions and the Master Agreement and shall be liable to each performance of the Funds and Seller for any expenses only such duties as are set forth herein or damages contained in Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian shall have no implied duties or obligations (fiduciary or otherwise) hereunder. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. Other than as provided herein, neither the Custodian nor any of its directors, officers, agents or failure employees shall be liable for any action or omission to act hereunder except for its or their own negligence or lack of good faith or willful misconduct. In no event shall the Custodian or any of its directors, officers, agents or employees have any responsibility to ascertain or take action except as may expressly provided herein. Without limiting the generality of the foregoing, the Custodian shall not have any duty to make inquiry as to the genuineness of any Instructions furnished by any person authorized as provided above and shall be required under this Agreement fully protected in relying on any Instructions furnished by any person signing as, holding or under the Master Agreement when such delay identifying himself or failure is due herself as, or stating that he or she is, a person who has been so authorized. With respect to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the titleCustodian shall only be responsible or liable for losses arising from employment of such Securities System caused by the Custodian's own failure to exercise reasonable care and failure to comply with the provisions of this Agreement. With respect to the placement and maintenance of Customer's Foreign Assets with a Subcustodian, validity the Custodian shall only be responsible or genuineness liable for losses caused by its failure to comply with the provisions of this Agreement. The Custodian's performance of this Agreement is subject to the relevant local laws, regulations, decrees, orders and government acts, and the rules, operating procedures and practices of any security receivedrelevant stock exchange, delivered clearance system or held by it pursuant to this Agreement market where or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for through which the same transactions are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations carried out under this Agreement or and to which the Master Agreement.
(c) Repo Custodian shall not be under is subject and as exist in the country in which any duty or obligation to ascertain whether Collateral is held. In the event of any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything loss to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions Customer by reason of the Participating Funds, or failure of the Custodian on behalf of the Participating Funds, with respect or a Subcustodian to conform to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the applicable standard of care set forth in Paragraph 10(athis Agreement, the Custodian shall be liable to the Customer to the extent of the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) above on all matters and shall not be held liable for any action reasonably taken or omitted pursuant to such advice; provided such action shall be in compliance with all the terms expressly provided herein. In the event the Customer utilizes an electronic or other similar system to communicate with Custodian for any purpose, including, without limitation, the furnishing of Instructions, the Customer shall be fully responsible for the security of the connecting terminal utilized by Customer, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agrees to defend and indemnify the Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal, excluding any losses, damages, costs and expenses resulting from Custodian's negligence, willful misconduct or fraud. Should the Customer authorize, in accordance with the terms hereof, any agent to communicate with the Custodian and such agent utilizes any such system to so communicate, the Customer shall be responsible for the use of such system and shall defend, indemnify and hold harmless Custodian for such use to the same extent as if such system were being used by the Customer to communicate with the Custodian. In the event the Customer or any agent authorized pursuant to the terms hereof, accesses Account information via a Website, the Customer confirms that it is aware that communications over the internet cannot be guaranteed to be secure and that there is a risk that information displayed via the internet or contained within any communication made over the internet, including potentially confidential information, may be intercepted, lost, destroyed or delayed in display or transmission. Customer specifically agrees that the Custodian shall have no liability whether in contract, tort or otherwise for any direct, indirect or consequential loss or damage which may be suffered by Customer or any agent in connection with access made to Account information via a Website. Provided that the Custodian is not liable for damages in the performance of its duties and obligations hereunder, all collections of funds or other property paid or distributed in respect of Securities in an Account, including funds involved in third party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the standard of care applicable to the Custodian, the Custodian shall have no liability for any loss occasioned by delay in the actual receipt of notice by the Custodian or by a Subcustodian of any payment, redemption or other transaction regarding Securities in each Account in respect of which the Custodian has agreed to take action as provided in Section 3 hereof. The Custodian shall not be liable for any loss, liability, claim or expense resulting from, or caused by, anything which is a part of Country Risk (as described in Section 5 hereof) or acts of governmental authorities (whether de jure or de facto), including in each case, without limitation, (i) nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to the banking or securities industry; (ii) market conditions that prevent the orderly execution of securities transactions or affect the value of Property or the inability of a local clearing and settlement system to settle transactions for reasons beyond the control of the Custodian; (iii) acts of war, terrorism, insurrection or revolution; strikes or work stoppages; or (iv) hurricane, cyclone, earthquake, volcanic eruption, nuclear fusion, fission or radioactivity, or other acts of God. The Custodian shall have no liability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than the Custodian prior to the Custodian's employment under this Agreement. The Custodian may consult with counsel selected by the Custodian with regard to legal questions arising out of or in connection with this Agreement, and the advice or opinion of such counsel selected with due care shall be full and complete authorization and protection in respect of any action reasonably taken, omitted or suffered by Custodian in good faith and in a commercially accordance therewith; provided such action shall be in compliance with all the terms expressly provided herein. No provision of this Agreement shall require the Custodian to expend or risk its own funds or otherwise incur financial liability (other than expenses or liabilities otherwise required to be incurred by the express terms of this Agreement) in the performance of its duties under this Agreement if it shall have reasonable mannergrounds for believing that repayment of such funds is not reasonably likely. The provisions of this Section shall survive termination of this Agreement.
Appears in 1 contract
Samples: Custodial Agreement (Oppenheimer Master Loan Fund, LLC)
Standard of Care. (a) Repo Custodian Vendor acknowledges and agrees that, during the course of its engagement by Named Entity, Vendor may receive or have access to Named Entity Protected Data. Vendor shall comply with the terms and conditions set forth in this Contract, the RFO, and OAG Information Security Standards (Attachment 4 to the RFO) in its collection, receipt, transmission, storage, disposal, use and disclosure of both Named Entity Protected Data and be responsible for the unauthorized collection, receipt, transmission, access, storage, disposal, use and disclosure of Named Entity Protected Data under its control or in its possession by all Authorized Employees and/or Authorized Persons. Vendor shall be obligated to exercise reasonable care responsible for and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be remain liable to each Named Entity for the actions and omissions of all Authorized Persons that are not Authorized Employees concerning the treatment of Named Entity Protected Data as if they were Vendor’s own actions and omissions.
(b) In recognition of the Funds foregoing, Xxxxxx agrees and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard covenants that it shall:
(i) keep and maintain all Named Entity Protected Data in strict confidence, using such degree of care in this Agreementas is appropriate to avoid unauthorized access, as further use or disclosure;
(ii) use and disclose Named Entity Protected Data solely and exclusively for the purposes for which the Named Entity Protected Data, or access to it, is provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions terms and conditions of this Agreement which is occasioned by the negligence ofContract, and not use, sell, rent, transfer, distribute, or conversion, misappropriation otherwise disclose or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly make available Named Entity Protected Data for Vendor’s own purposes or for the benefit of anyone other than the Funds. So long OAG or Named Entity in each case, without Named Entity’s prior written consent or as permitted in subsection (c) below; and
(iii) not, directly or indirectly, disclose Named Entity Protected Data to any person or entity other than its Authorized Employees and/or Authorized Persons (“Unauthorized Third Party”) without the prior express written consent from Named Entity, unless and to the extent that Repo Custodian exercises reasonable care required by applicable law or court order in which case, Vendor shall (1) use best efforts to notify OAG before such disclosure or as soon thereafter as reasonably possible; (2) be responsiblefor and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be remain liable to Seller or OAG for the Funds for (i) actionsand omissions of any action taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine Unauthorized Third Party concerning the treatment of such Named Entity Protected Data as if they were Vendor’s own actions and to be signed by the proper party or parties, omissions; and (iii) any delay or failure require the Unauthorized Third Party that has access to act as may be required under Personal Information to execute a written agreement agreeing to comply with the terms and conditions of this Agreement or under Contract, the Master Agreement when such delay or failure is due to any act of God or warRFO, and the OAG Information Security Standards (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or Attachment 4 to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except RFO) relating to the extent treatment of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master AgreementNamed Entity Protected Data.
(c) Repo Custodian Notwithstanding anything in the foregoing subsection (b), Vendor is authorized by Named Entity to utilize Named Entity Protected Data only to the extent such Named Entity Protected Data is related to a Defendant or to a Defendant Status Change (hereinafter “SAVNS Defendant Data”) for the limited purpose of providing or improving Vendor's own existing products and services identified in the Appriss Data Overview to Law Enforcement Agencies and Government Agencies. For the purposes of this paragraph, "utilize" includes, but is not limited to, receiving, maintaining, disseminating, retaining, or otherwise providing access to any information obtained or extrapolated from SAVNS Defendant data obtained under the SAVNS program. "Government Agency" means an organization created by or pursuant to the Constitution of the United States or the constitution of a state of the United States and operated for public purposes. The term "Government Agency" shall not be under any duty includeany quasi-governmental entity or obligation government-sponsored enterprise or corporation. "Law Enforcement Agency" means a Government Agency or an organizational unit within a Government Agency with authority to ascertain whether any Securities at any time delivered to enforce state or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary hereinfederal criminal laws, Repo Custodian shall be obligated to act in accordance with the guidelines which includes, but is not limited to, prevention, detection, and proper instructions investigation of the Participating Fundscrime, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers apprehension and incarceration of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.alleged offenders;
Appears in 1 contract
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Agreement. The Custodian will act without negligence with respect to the Funds or Seller for breach safekeeping of Repo Custodian's standard of care Trust Account Property in the Trust Accounts and, except as otherwise expressly provided in this Agreement, in carrying out its obligations under this Agreement. The Custodian will give the Trust Account Property in the Trust Accounts equal care and safeguards as further provided in this Paragraph. Repo are afforded similar property owned by the Custodian.
(b) Absent negligence, the Custodian assumes responsibility shall not be responsible for loss to the title, validity or genuineness of any Trust Account Property or other property held or evidence of title thereto received by it or delivered by it pursuant to the provisions of this Agreement which is occasioned and may rely and shall be protected in acting or refraining from acting on any written notice, request, waiver, consent or instrument believed by it to be genuine and to have been signed or presented by the negligence of, proper party or conversion, misappropriation parties. The Custodian shall have no duty to determine or theft by, Repo Custodian's officers, employees inquire into the happening or occurrence of any event or contingency. The Custodian may consult with and agents. Repo Custodian, at obtain advice from legal counsel as to any provision hereof or its option, may insure itself against loss from any cause but duties hereunder and shall be under no obligation to obtain insurance directly fully protected in acting on advice of such counsel. The Custodian may conclusively rely on, without liability for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligenceany loss resulting therefrom, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, (iii) including, without limitation, Instructions. The Custodian shall not be required to expend or risk its own funds in performance of its duties hereunder unless indemnity reasonably satisfactory to Custodian is assured to it. The Issuer agrees to indemnify, defend and hold the Custodian, its officers, directors, employees and agents harmless from and against any delay and all losses, claims, damages, demands, expenses, costs, cause of action, judgments or failure to act as liabilities that may be required under incurred by the Custodian, its officers, directors, employees and agents arising directly or indirectly out of or in connection with the Custodian’s acceptance or appointment as Custodian hereunder, including the reasonable legal costs and expenses as such expenses are incurred (including, without limitation, the expenses of any experts, counsel or agents) of investigating, preparing for or defending itself against any action, claim or liability in connection with its performance hereunder or defending any claim or bringing any claim to enforce the indemnification obligations of the Issuer hereunder. In no event, however, shall the Issuer be obligated to indemnify the Custodian and save the Custodian harmless from any fees, expenses, charges and/or liabilities incurred by the Custodian as a result of its own willful misconduct, bad faith or negligence. Anything in this Agreement notwithstanding, in no event shall the Custodian be liable for special, indirect or under the Master Agreement when such delay consequential loss or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness damage of any security receivedkind whatsoever (including but not limited to loss of profits), delivered even if the Custodian has been advised of such loss or held by it pursuant to damage and regardless of the form of action. The indemnification in favor of the Custodian in this Agreement shall survive any resignation or the Master Agreement, (vi) the legality removal of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold Custodian (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities indemnified liabilities, costs, expenses and to calculate other indemnified amounts arising or incurred prior to, or arising as a result of actions or omissions occurring prior to, such resignation or removal) and the Market Value termination of Securities and this Agreement.
(c) In no event shall the Custodian be liable for any Cash Collateral)consequential, (vii) special, punitive or indirect damages. The Custodian shall have no liability for loss arising from any cause beyond its control, including but not limited to, the due authority act, failure or neglect of any person listed on Schedule C agent or correspondent selected by the Custodian for the remittance of funds; any delay, error, omission or default of any mail, telegraph, cable or wireless agency or operator; or the acts or edicts of any government or governmental agency or other group or entity exercising governmental powers.
(d) In the event the Issuer subscribes to act on behalf of an electronic on-line service and communications system offered by the Custodian, Seller or the FundsIssuer shall be fully responsible for the security of the Issuer’s connecting terminal, as access thereto and the case may be, proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agrees to this Agreement defend and indemnify the Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the reasonable fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Issuer or by any others (viiiincluding the costs and expenses of enforcing such indemnification obligation) unless the errors loss, damage, cost or expense is a result of the Pricing Services, broker's brokers Custodian’s negligence or broker dealers set forth in Schedule B.misconduct.
(be) Repo All collections of funds or other property to be paid in respect of Trust Account Property in a Trust Account shall be made for the account of, and at the risk of, the Issuer, and the Custodian shall not be liable to Seller the Issuer in the event that the obligor on any Trust Account Property (other than Trust Account Property issued by the Custodian) fails to make any payment due thereunder. The Custodian may hold funds uninvested (without any requirement to pay for interest or earnings) in the Funds forabsence of written investment direction. For the avoidance of doubt, such written investment direction may include standing directions.
(f) Absent negligence, the Custodian shall have no liability for any loss occasioned by delay in the actual receipt of notice by the Custodian of any payment, redemption or other transaction regarding Trust Account Property in a Trust Account in respect of which the Custodian has agreed to take action as provided in Section 3 hereof. The Custodian shall not be liable for any loss resulting from, or considered caused by, acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Trust Account Property; acts of war, terrorism, insurrection or revolution; strikes or work stoppages; the inability of a local clearing and settlement system to settle transactions for reasons beyond the control of the Custodian or hurricane, cyclone, earthquake, volcanic eruption, nuclear fusion, fission or radioactivity or other acts of God.
(g) The Custodian shall have no liability in respect of any Eligible Securities loss, damage or expense suffered by the Issuer, insofar as such loss, damage or expense arises from the performance of the Custodian’s duties hereunder by reason of the Custodian’s reliance upon records that were maintained for the Issuer by entities other than the Custodian prior to the Custodian’s employment under this Agreement.
(h) The Custodian shall have no responsibility or liability to the Indenture Trustee for releasing any money to be used of the Trust Account Property held in a repurchase transaction, whether Trust Account at the direction of the Issuer or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered its authorized representatives in accordance with Paragraph 3 Section 9 hereof or, subject to Section 4 hereof, complying with Entitlement Orders concerning a Trust Account from the Issuer or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or its authorized representatives, which are received by the final crediting Custodian before the Custodian receives a Notice of Exclusive Control from the Indenture Trustee or its authorized representatives. The Custodian shall have no responsibility or liability to the Issuer for complying with a Notice of Exclusive Control or complying at any time with Entitlement Orders concerning a Trust Account originated by the Indenture Trustee. The Custodian shall have no duty to investigate or make any determination as to whether a Default or Event of Default exists under the Indenture, and shall comply with a Notice of Exclusive Control without investigation even if the Custodian receives a claim that no such Default or Event of Default exists or believes that no such Default or Event of Default exists. In no event shall the Custodian be deemed to have notice of any Event of Default or Default unless notice of such event has been sent to a Custodian Authorized Officer. This Agreement does not create any obligation or duty on the part of the Seller Account or Custodian other than those expressly set forth herein. Upon receipt of a Transaction Account through Notice of Exclusive Control with respect to a Trust Account, the Securities SystemCustodian shall notify the Issuer, except that this Paragraph 10(bwith a copy to the Servicer, of its receipt of such Notice of Exclusive Control. The Custodian may fully rely, and may take the actions herein set forth, notwithstanding any notice of dispute between the Indenture Trustee and the Issuer.
(i) The Custodian shall not be deemed responsible for determining whether the investment Instructions delivered by the Servicer to limit the liability Custodian pursuant to Section 2.2(f) of Repo the Servicing Agreement direct the Custodian to Seller invest in Permitted Investments. The Custodian shall have no liability for any determination of Permitted Investment or Instruction made by the Funds if the non-delivery Servicer thereunder.
(j) The provisions of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian this Section shall survive termination of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty earlier resignation or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions removal of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactionsCustodian.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 1 contract
Samples: Custody and Control Agreement (Synchrony Card Issuance Trust)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in the Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or failure omission to act of any Subcustodian to the same extent as may be required under this Agreement or under if the Master Agreement when Custodian committed such delay or failure is due act itself. With respect to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity Custodian shall only be responsible or genuineness liable for losses arising from employment of such Securities System caused by the Custodian's own failure to exercise reasonable care. In the event of any security received, delivered or held loss to the Customer by it pursuant to this Agreement or the Master Agreement, (vi) the legality reason of the purchase failure of the Custodian or sale of any Securities by or a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in the Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in the Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 1 contract
Standard of Care. (a) Repo In performing the services hereunder, the Custodian shall act without negligence, willful misconduct, willful misfeasance, fraud, bad faith, reckless disregard of its duties and obligations under this Agreement and with the reasonable care, prudence, diligence, and skill that may be reasonably expected of a leading provider of custody services in carrying out all of its duties and obligations under this Agreement. The Custodian shall be obligated to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement kept indemnified by and shall be liable to each of the Funds and Seller for any expenses or damages without liability to the Funds or Seller Fund for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action taken or omitted by it in good faith without negligence; provided that, the Custodian shall not be indemnified against any liability (or any expenses incident to such liability) arising out of the Custodian’s failure to exercise its standard of care set out in reliance upon proper instructionsthis Section 16.1. Except as may arise from the Custodian’s failure to exercise its standard of care, the Custodian shall be without liability to the Fund for any loss or expense resulting from or caused by: (i) events or circumstances beyond the reasonable control of the Custodian or any sub-custodian or Securities System or any agent or nominee of any of the foregoing, including, without limitation, the interruption, suspension or restriction of trading on or the closure of any securities market, power or other mechanical or technological failures or interruptions, computer viruses or communications disruptions, work stoppages, natural disasters, or other similar events or acts; (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed errors by the proper party Fund or parties, its duly authorized investment manager or Sponsor in their instructions to the Custodian provided such instructions have been in accordance with this Agreement; (iii) any delay or failure of any broker, agent or intermediary, central bank or other commercially prevalent payment or clearing system to act as may be required under this Agreement deliver to the Custodian’s sub-custodian or under agent securities purchased or in the Master Agreement when remittance or payment made in connection with securities sold; (iv) any delay or failure of any company, corporation, or other body in charge of registering or transferring securities in the name of the Custodian, the Fund, the Custodian’s sub-custodians, nominees or agents or any consequential losses arising out of such delay or failure is to transfer such securities including non-receipt of bonus, dividends and rights and other accretions or benefits; (v) delays or inability to perform its duties due to any act of God disorder in market infrastructure with respect to any particular security or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, ; and (vi) the legality any provision of any present or future law or regulation or order of the purchase United States of America, or sale any state thereof, or any foreign country, or political subdivision thereof or of any Securities by or to the Participating Funds or Seller or the propriety court of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo competent jurisdiction. The Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect without liability to the types Fund for any loss or expense resulting from or caused by anything that is part of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactionsCountry Risk.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 1 contract
Standard of Care. (a) Repo Custodian The Subadviser shall be obligated to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement its best judgment and shall be liable to each of act in good faith in rendering the Funds services listed in paragraphs 2 and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph3 above. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian The Subadviser shall not be liable to Seller or the Funds for (i) any action taken breach by the Manager of any representation or omitted in good faith in reliance upon proper instructionswarranty or material provision of this Agreement, (ii) the Manager's or the Fund's violation of any action applicable law or regulation, unless such violation was the result of actions taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed not taken by the proper party Subadviser or partiesinformation provided by the Subadviser, (iii) any delay actual or failure alleged material misstatement or omission in the Prospectus, the Statement, proxy statements or other communications to act as may current or prospective investors, unless the misstatement or omission relates to the Subadviser or services to be required under this Agreement or under provided by the Master Agreement when such delay or failure Subadviser, including the investment strategies and policies to be followed by the Subadviser, and is due to any act of God or warbased on information furnished by the Subadviser, (iv) the actions offer and sale of shares of common stock of the Fund, including without limitation actual or omissions alleged noncompliance with customer suitability, customer identification or anti-money laundering laws or regulations, except that the foregoing shall not apply to liability arising from statements made or documents delivered by the Subadviser in its provision of a Securities System, assistance to the Fund or the Fund's distributors in their efforts to sell shares of the Fund or (v) any error of judgment or mistake of law or any loss suffered by the title, validity Fund or genuineness of any security received, delivered or held by it pursuant the Manager in connection with the matters to which this Agreement relates, provided that nothing in this Agreement shall be deemed to protect or purport to protect the Master AgreementSubadviser against any liability to the Manager, (vi) the legality of the purchase or sale of any Securities by Company or to the Participating Funds or Seller or the propriety shareholders of the amount for Fund to which the same are purchased Subadviser would otherwise be subject by reason of willful misfeasance, bad faith or sold (except to gross negligence on its part in the extent performance of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller its duties or the Funds, as the case may be, with respect to this Agreement or (viii) the errors by reason of the Pricing Services, brokerSubadviser's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian reckless disregard of its obligations and duties under this Agreement Agreement. The U.S. securities laws impose liabilities under certain circumstances on persons who act in good faith and, therefore, nothing herein shall in any way constitute a waiver or limitation of any rights that the Master Agreement.
(c) Repo Custodian shall not be Fund may have under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactionsU.S. securities laws.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 1 contract
Samples: Subadvisory Agreement (Legg Mason Partners Investment Funds, Inc.)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care responsible for compliance with the terms and diligence in carrying out the provisions of this Agreement ----------------- conditions and the Master Agreement and shall be liable to each performance of the Funds and Seller for any expenses only such duties as are set forth herein or damages contained in Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian shall have no implied duties or obligations (fiduciary or otherwise) hereunder. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. Other than as provided herein, neither the Custodian nor any of its directors, officers, agents or failure employees shall be liable for any action or omission to act hereunder except for its or their own negligence or lack of good faith or willful misconduct. In no event shall the Custodian or any of its directors, officers, agents or employees have any responsibility to ascertain or take action except as may be required under this Agreement or under expressly provided herein. Without limiting the Master Agreement when such delay or failure is due generality of the foregoing, the Custodian shall not have any duty to any act of God or war, (iv) make inquiry as to the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security receivedInstructions furnished by any person authorized as provided above and shall be fully protected in relying on any Instructions furnished by any person signing as, delivered holding or held by it pursuant identifying himself or herself as, or stating that he or she is, a person who has been so authorized the Custodian shall be liable to this Agreement the Customer for any act or the Master Agreement, (vi) the legality of the purchase or sale omission to act of any Securities by or Subcustodian to the Participating Funds or Seller or same extent as if the propriety of Custodian committed such act itself, provided notwithstanding the amount for which foregoing, the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable for any losses due to Seller or the Funds forinsolvency of a Subcustodian (excluding Custodian's affiliates, or considered subsidiaries, divisions, etc.) as long as it has exercised reasonable care in the selection of such Subcustodian. With respect to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the U.S. Securities System, except that this Paragraph 10(b) the Custodian shall not only be deemed responsible or liable for losses arising from employment of such Securities System caused by the Custodian's own failure to limit exercise reasonable care. With respect to the liability placement and maintenance of Repo Custodian to Seller or the Funds if the Customer's Foreign Assets with a non-delivery of such Eligible U.S. Securities System, the Custodian shall only be responsible or the liable for losses caused by its failure to receive comply with Section 10 of this Agreement. With respect to the placement and collect such money results from maintenance of Customer's Foreign Assets with a non-U.S. Subcustodian, the breach Custodian shall only be responsible or liable for losses caused by Repo Custodian its failure to comply with Section 5 of its obligations this Agreement. The Custodian's performance of this Agreement is subject to the relevant local laws, regulations, decrees, orders and government acts, and the rules, operating procedures and practices of any relevant stock exchange, clearance system or market where or through which transactions are to be carried out under this Agreement or and to which the Master Agreement.
(c) Repo Custodian shall not be under is subject and as exist in the country in which any duty or obligation to ascertain whether Collateral is held. In the event of any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything loss to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions Customer by reason of the Participating Funds, or failure of the Custodian on behalf of the Participating Funds, with respect or a Subcustodian to conform to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the applicable standard of care set forth in Paragraph 10(athis Agreement, the Custodian shall be liable to the Customer to the extent of the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) above on all matters and shall not be held liable for any action reasonably taken or omitted pursuant to such advice. In the event the Customer utilizes an electronic or other similar system to communicate with Custodian for any purpose, including, without limitation, the furnishing of Instructions, the Customer shall be fully responsible for the security of the connecting terminal utilized by Customer, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agrees to defend and indemnify the Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal. Should the Customer authorize, in accordance with the terms hereof, any agent to communicate with the Custodian and such agent utilizes any such system to so communicate, the Customer shall be responsible for the use of such system and shall defend, indemnify and hold harmless Custodian for such use to the same extent as if such system were being used by the Customer to communicate with the Custodian. In the event the Customer or any agent authorized pursuant to the terms hereof, accesses Account information via a Website, the Customer confirms that it is aware that communications over the internet cannot be guaranteed to be secure and that there is a risk that information displayed via the internet or contained within any communication made over the internet, including potentially confidential information, may be intercepted, lost, destroyed or delayed in display or transmission. Customer specifically agrees that the Custodian shall have no liability whether in contract, tort or otherwise for any direct, indirect or consequential loss or damage which may be suffered by Customer or any agent in connection with access made to Account information via a Website. Provided that the Custodian is not liable for damages in the performance of its duties and obligations hereunder, all collections of funds or other property paid or distributed in respect of Securities in an Account, including funds involved in third party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the standard of care applicable to the Custodian, the Custodian shall have no liability for any loss occasioned by delay in the actual receipt of notice by the Custodian or by a Subcustodian of any payment, redemption or other transaction regarding Securities in each Account in respect of which the Custodian has agreed to take action as provided in Section 3 hereof. The Custodian shall not be liable for any loss, liability, claim or expense resulting from, or caused by, anything which is a part of Country Risk (as described in Section 5 hereof) or acts of governmental authorities (whether de jure or de facto), including in each case, without limitation, (i) nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to the banking or securities industry; (ii) market conditions that prevent the orderly execution of securities transactions or affect the value of Property or the inability of a local clearing and settlement system to settle transactions for reasons beyond the control of the Custodian; (iii) acts of war, terrorism, insurrection or revolution; strikes or work stoppages; or (iv) hurricane, cyclone, earthquake, volcanic eruption, nuclear fusion, fission or radioactivity, or other acts of God. The Custodian shall have no liability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than the Custodian prior to the Custodian's employment under this Agreement. The Custodian may consult with counsel selected by the Custodian with regard to legal questions arising out of or in connection with this Agreement, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action reasonably taken, omitted or suffered by Custodian in good faith and in a commercially accordance therewith; provided such action shall be in compliance with all the terms expressly provided herein. No provision of this Agreement shall require the Custodian to expend or risk its own funds or otherwise incur financial liability (other than expenses or liabilities otherwise required to be incurred by the express terms of this Agreement) in the performance of its duties under this Agreement if it shall have reasonable mannergrounds for believing that repayment of such funds is not reasonably likely. The provisions of this Section shall survive termination of this Agreement.
Appears in 1 contract
Samples: Custodian Agreement (Oppenheimer Senior Floating Rate Fund)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in the Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of actionstaken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or omission to act of any Subcustodian to the same extent as if the Custodian committed such act itself. Where, under applicable law, regulation, or practice (in order to facilitate the settlement of transactions related thereto), or where the Customer otherwise elects, Securities are held in a Securities System in a particular market, the Custodian shall only be responsible or liable for losses arising from employment of such Securities System caused by the Custodian's own failure to act as may exercise reasonable care. Where the Custodian otherwise elects to employ a Securities System for holding Securities in a particular market, the Custodian shall be required under this Agreement or under liable to the Master Agreement when such delay or failure is due to Customer for any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale omission of any Securities by or System to the Participating Funds or Seller or same extent as if the propriety Custodian committed such act itself. In the event of any loss to the Customer by reason of the amount for which failure of the same are purchased Custodian or sold (except a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in the Account including funds involved in third-party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in the Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 1 contract
Standard of Care. (a) Repo Custodian shall be obligated to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises it is in the exercise of reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo Custodian shall not be liable responsible for the title, validity or genuineness of any Property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds for (i) any action taken or omitted this Agreement and shall be held harmless in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith acting upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, (iii) . Custodian shall be under no duty to take any delay action except as specifically set forth herein or failure to act as may be required under specifically agreed to by Custodian in writing. Custodian shall use its best judgment and efforts in rendering the services described in this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo . Custodian shall not be liable to Seller Customer for any action or inaction of Custodian relating to any event whatsoever in the Funds forabsence of bad faith, willful misfeasance or considered to be negligence in the custodian of, any Eligible Securities performance of Custodian's duties or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or Custodian's reckless disregard of its duties and obligations under this Agreement. Customer agrees to indemnify and hold harmless Custodian, its employees, agents, directors, officers and managers and any person who controls the Master Agreement.
Custodian within the meaning of Section 15 of the Securities Act of 1933, as amended (cthe "1933 Act"), or Section 20 of the Securities Exchange Act of 1934, as amended (the "1934 Act") Repo ("Custodian shall not be under Indemnitees"), against and from any duty and all claims, demands, actions, suits, judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees and other expenses of every nature and character arising out of or obligation in any way related to ascertain whether any Securities at any time delivered to Custodian's actions taken or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated failures to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with under this Agreement and the Master Agreement within that are consistent with the standard of care set forth in Paragraph 10(a) above Section 15 of this Agreement, or Customer's instructions, provided those instructions are followed accurately, or any breach of Customer's representations set forth in Section 23 of this Agreement (a "Custodian Claim"). Customer shall not be required to indemnify any Bank Indemnitee if, prior to confessing any Custodian Claim against the Custodian Indemnitee, Custodian or the Custodian Indemnitee does not give Customer written notice of and reasonable opportunity to defend against the Custodian Claim in its own name or in the name of the Custodian Indemnitee. Custodian agrees to indemnify and hold harmless Customer, its employees, agents, directors, officers and managers and any person who controls Customer within the meaning of Section 15 of the 1933 Act or section 23 of the 1934 Act ("Customer Indemnitees"), against and from any and all claims, demands, actions, suits, judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees and other expenses of every nature and character arising out of or in any way related to Custodian's actions taken or failures to act under this Agreement that are not consistent with the standard of care set forth in Section 15 of this Agreement or any breach of Custodian's representations set forth in Section 23 of this Agreement (a "Customer Claim"). Custodian shall not be required to indemnify any Company Indemnitee if, prior to confessing any Customer Claim against the Customer Indemnitee, Customer or the Customer Indemnitee does not give Custodian written notice of and reasonable opportunity to defend against the Customer Claim in its own name or in the name of the Customer Indemnitee. If Customer requires Custodian to take any action with respect to securities, which action involves the payment of money or which action may, in the opinion of Custodian, result in Custodian or its nominee assigned to the Trust or a Fund being liable for the payment of money or incurring liability of some other form, Customer as a prerequisite to requiring Custodian to take such action, shall provide indemnity to Custodian in an amount and form satisfactory to it. If Customer requires Custodian to advance cash or securities for any purpose for the benefit of a Fund or in the event that Custodian or its nominee shall incur or be assessed any taxes, charges, expenses, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, Custodian promptly shall notify Customer of the existence of any such advances, their amount and the Fund to which the advance applies. Customer shall on behalf of the Fund repay Custodian on demand and in a commercially reasonable mannerfull such advances in the amounts as presented by Custodian as correct amounts, on the first business day following Customer's receipt of notice of such demand.
Appears in 1 contract
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care (i.e., act without negligence or willful misconduct) with respect to the negligence ofsafekeeping of Property in the Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or failure omission to act of any Subcustodian to the same extent as may be required under this Agreement or under if the Master Agreement when Custodian committed such delay or failure is due act itself. With respect to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity Custodian shall only be responsible or genuineness liable for losses arising from employment of such Securities System caused by the Custodian's own failure to exercise reasonable care. In the event of any security received, delivered or held loss to the Customer by it pursuant to this Agreement or the Master Agreement, (vi) the legality reason of the purchase failure of the Custodian or sale of any Securities by or a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in the Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in the Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency transactions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, quake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian to effectuate repurchase transactions in accordance with the Custodian's employment. The provisions of this Agreement and the Master Agreement within the standard Section shall survive termination of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Agreement.
Appears in 1 contract
Samples: Custodian Agreement (General American Investors Co Inc)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach Custodian which are within the scope of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant its duties and not contrary to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agentsAgreement. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and The Custodian will use reasonable care with respect to the extent that Repo Custodian exercises reasonable care safekeeping of Property in the Account and diligence and acts without negligence, misfeasance or misconduct, Repo in carrying out its obligations under this Agreement. The Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of any delay action taken or failure omitted by the Custodian hereunder and without gross negligence, bad faith or willful misconduct on the part of the Custodian. With respect to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the titleCustodian shall only be responsible or liable for losses arising from employment of such Securities System caused by the Custodian's gross negligence, validity bad faith or genuineness willful misconduct. In the event of any security received, delivered or held loss to the Customer by it pursuant to this Agreement or the Master Agreement, (vi) the legality reason of the purchase gross negligence, bad faith or sale willful misconduct of any Securities by the Custodian or its Sub-custodian, the Custodian shall be liable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except Customer to the extent of Repo Custodianthe Customer's obligations hereunder actual damages at the time such loss was discovered without reference to determine whether securities are Eligible Securities and to calculate any special conditions or circumstances. To the Market Value extent that the Custodian obtains or provides market values of Securities in the Account to the Customer, the Customer hereby acknowledges that the Custodian now obtains and any Cash Collateral)will in the future obtain information on such values from outside sources which the Custodian deems to be reliable, (vii) and confirms that the due authority Custodian does not verify nor represent or warrant either the accuracy or the completeness of any person listed such information furnished, and the Custodian shall be without liability in selecting and using such sources and furnishing any information derived therefrom. In no event shall the Custodian be liable for any indirect, incidental, special, consequential or punitive damages. The Custodian shall be entitled to rely, and may act, on Schedule C advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to act on behalf of Custodiansuch advice. In the event the Customer subscribes to the Electronic On-Line System, Seller or the Funds, as Customer shall be fully responsible for the case may be, with respect to this Agreement or (viii) the errors security of the Pricing ServicesCustomer's connecting terminal, brokeraccess thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards and the Customer agrees to defend, indemnify and hold the Custodian harmless from and against any and all liabilities, losses, damages, costs, including attorneys' fees and every other expense of every nature incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by others on the Customer's brokers premises. All collections of funds or broker dealers set forth other property paid or distributed in Schedule B.
(b) Repo respect of Securities in the Account shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any loss occasioned by delay in the actual receipt of notice by the Custodian or by its Sub-custodian of any payment, redemption or other transaction regarding Securities in the Account in respect of which the Custodian has agreed to take action as provided in Section 2 hereof The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; acts of war, terrorism, insurrection or revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be settle transactions for reasons beyond the custodian ofcontrol of the Custodian; hurricane, any Eligible Securities or any money to be used in a repurchase transactioncyclone, whether or not such money is represented by any checkearthquake, draftvolcanic eruption, nuclear fusion, fission, radioactivity or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis section shall survive termination of this Agreement.
Appears in 1 contract
Samples: Custodial Agreement (DMR Mortgage Opportunity Fund LP)
Standard of Care. (a) Repo Custodian shall be obligated to exercise reasonable care Each Manager shall, in fulfilling its duties and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in obligations under this Agreement, act in a manner consistent with an appropriate standard of care, efficiency, quality and diligence typically exercised by first-class companies performing similar types of services for projects of a quality comparable to the CityCenter Project and consistent with the fiduciary relationship of trust and confidence between Owner and Manager, which evidences such Manager’s good faith and fair dealing and the application of its reasonable business judgment in the best interest of the Resort Hotel and Casino, the Hotel Assets and the Other Project Component, as further provided applicable. Furthermore, the Managers acknowledge that the General Manager is, as of the Effective Date, the Managing Member of Owner, and, as such, the Managers shall, in this Paragraphfulfilling their respective obligations hereunder (including, but not limited to, any decisions regarding whether or not the Resort Hotel and Casino will participate in specialized initiatives, including, but not limited to, Purchasing Programs), act at all times in a manner that is consistent with the fiduciary duty owed by the General Manager, as the Managing Member, to Owner and consistent with the fiduciary relationship of trust and good faith and confidence between Owner and each Manager. Repo Custodian assumes responsibility for loss The Managers acknowledge and affirm to Owner, and each of its Members, respectively, that the actions, duties and obligations contemplated herein to be performed and/or undertaken by the Managers are not in any property held way intended, nor will such actions, duties and obligations supplant any duty or obligation to be performed by it the MGM Member in its capacity as Managing Member pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit terms of the FundsJoint Venture Agreement. So long as and to the extent The General Manager acknowledges that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action all actions taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, request, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, whether on its own behalf or through its Affiliates and subsidiaries (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateralincluding, without limitation, each Manager), (vii) are and shall be deemed actions taken by the due authority of any person listed on Schedule C to act MGM Member for and on behalf of CustodianOwner as if taken by the MGM Member as the Managing Member under the Joint Venture Agreement (and the MGM Member shall be responsible and liable for all such actions or omissions as if taken by the MGM Member itself); provided, Seller however, that any action or omission of a Manager made under this Agreement shall not constitute a breach of the Joint Venture Agreement by the MGM Member unless such action or omission, if made by the MGM Member, would constitute a breach under the Joint Venture Agreement. During the Term, neither the Resort Hotel and Casino Operator nor the General Manager shall manage or operate any business unrelated to the Resort Hotel and Casino or the Funds, as the case may be, with respect to this Agreement or (viii) the errors other Components of the Pricing ServicesCityCenter Project. Owner acknowledges, broker's brokers or broker dealers set forth however, that Affiliates of MGM MIRAGE (excluding General Manager and Resort Hotel and Casino Operator and its subsidiaries) do and will engage in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds foroperations, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draftownership, or other instrument for activities or businesses that compete with the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives operations and collects such money on behalf of Seller or the Funds directly or by the final crediting business of the Seller Account or a Transaction Account through Resort Hotel and Casino and/or the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions other Components of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating FundsCityCenter Project, and assurances satisfactory to it that it will be reimbursed for its costs such actions and expenses in connection with any such actionconduct are expressly permitted.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 1 contract
Samples: Hotel and Casino Operations and Hotel Assets Management Agreement (CityCenter Holdings, LLC)
Standard of Care. (ai) Repo Custodian shall be obligated to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises it is in the exercise of reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo Custodian Bank shall not be liable responsible for the title, validity or genuineness of any Property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds for (i) any action taken or omitted this Agreement and shall be held harmless in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith acting upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed by the proper party or parties, .
(iiiii) Bank shall be under no duty to take any delay action except as specifically set forth herein or failure to act as may be required under specifically agreed to by Bank in writing. Bank shall use its best judgment and efforts in rendering the services described in this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian . Bank shall not be liable to Seller Forum for any action or inaction of Bank relating to any event whatsoever in the Funds forabsence of bad faith, willful misfeasance or considered to be negligence in the custodian of, any Eligible Securities performance of Bank's duties or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master by reason of Bank's reckless disregard of its duties and obligations under this Agreement.
(ciii) Repo Custodian shall not be under Forum agrees to indemnify and hold harmless Bank, its employees, agents, directors, officers and managers and any duty person who controls the Bank within the meaning of section 15 of the Securities Act of 1933, as amended (the "1933 Act"), or obligation section 20 of the Securities Exchange Act of 1934, as amended (the "1934 Act") ("Bank Indemnitees"), against and from any and all claims, demands, actions, suits, judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees and other expenses of every nature and character arising out of or in any way related to ascertain whether any Securities at any time delivered to Bank's actions taken or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated failures to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with under this Agreement and the Master Agreement within that are consistent with the standard of care set forth in Paragraph 10(a15(ii) above of this Agreement, or Forum's instructions, provided those instructions are followed accurately, or any breach of Forum's representations set forth in Paragraph 20 of this Agreement (a "Bank Claim"). Forum shall not be required to indemnify any Bank Indemnitee if, prior to confessing any Bank Claim against the Bank Indemnitee, Bank or the Bank Indemnitee does not give Forum written notice of and reasonable opportunity to defend against the Bank Claim in its own name or in the name of the Bank Indemnitee.
(iv) Bank agrees to indemnify and hold harmless Forum, its employees, agents, directors, officers and managers and any person who controls Forum within the meaning of section 15 of the 1933 Act or section 20 of the 1934 Act ("Forum Indemnitees"), against and from any and all claims, demands, actions, suits, judgments, liabilities, losses, damages, costs, charges, reasonable counsel fees and other expenses of every nature and character arising out of or in any way related to Bank's actions taken or failures to act under this Agreement that are not consistent with the standard of care set forth in Paragraph 15(ii) of this Agreement or any breach of Bank's representations set forth in Paragraph 20 of this Agreement (a "Forum Claim"). Bank shall not be required to indemnify any Forum Indemnitee if, prior to confessing any Forum Claim against the Forum Indemnitee, Forum or the Forum Indemnitee does not give Bank written notice of and reasonable opportunity to defend against the Forum Claim in its own name or in the name of the Forum Indemnitee.
(v) If Forum requires Bank to take any action with respect to securities, which action involves the payment of money or which action may, in the opinion of Bank, result in Bank or its nominee assigned to the Trust or a Portfolio being liable for the payment of money or incurring liability of some other form, Forum as a prerequisite to requiring Bank to take such action, shall provide indemnity to Bank in an amount and form satisfactory to it.
(vi) If Forum requires Bank to advance cash or securities for any purpose for the benefit of a Portfolio or in the event that Bank or its nominee shall incur or be assessed any taxes, charges, expenses, assessments, claims or liabilities in connection with the performance of this Agreement, except such as may arise from its or its nominees own negligent action, negligent failure to act or willful misconduct, Bank promptly shall notify Forum of the existence of any such advances, their amount and the Portfolio to which the advance applies. Forum shall on behalf of the Portfolio repay Bank on demand and in a commercially reasonable mannerfull such advances in the amounts as presented by Bank as correct amounts, on the first business day following Forum's receipt of notice of such demand; provided, however, that Forum shall not be obligated to pay any amount in excess of that payable to Forum under the Custody Agreement between Forum and the Trust with respect to such Portfolio.
Appears in 1 contract
Standard of Care. (a) Repo Custodian shall be obligated to exercise reasonable care Schroder, in performing under the terms and diligence in carrying out the provisions conditions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, shall use its best judgment and efforts in rendering the services described herein, and shall incur no liability for its status under this agreement or for any reasonable actions taken or omitted in good faith. As an inducement to Schroder's undertaking to render these services, the Trust hereby agrees to indemnify and hold harmless Schroder, its employees, agents, officers and directors, from any and all loss, liability and expense, including any legal expenses, arising out of Schroder's performance under this Agreement, or status, or any act or omission of Schroder, its employees, agents, officers and directors; provided that this indemnification shall not apply to Schroder's actions taken or failures to act in cases of Schroder's own bad faith, willful misconduct or gross negligence in the performance of its duties under this Agreement; and further provided, that Schroder shall give the Trust notice and reasonable opportunity to defend against any such loss, claim, damage, liability or expense in the name of the Trust or Schroder, or both. The Trust will be entitled to assume the defense of any suit brought to enforce any such claim or demand, and to retain counsel of good standing chosen by the Trust and approved by Schroder,such approval not to which approval shall be unreasonably withheldnot be withheld unreasonably. In the event the Trust does elect to assume the defense of any such suit and retain counsel of good standing approved by Schroder, the defendant or defendants in such suit shall bear the fees and expenses of any additional counsel retained by any of them; but in case the Trust does not elect to assume the defense of any such suit, or in case Schroder does not approve of counsel chosen by the Trust or Schroder has been advised that it may have available defenses or claims which are not available or conflict with those available to the Trust, the Trust will reimburse Schroder, its employees, agents, officers and directors for the fees and expenses of any one counsellaw firm retained as further provided counsel by Schroder or them. Schroder may, at any time, waive its right to indemnification under this agreement and assume its own defense. The provisions of paragraphs (b) through (d) of this Section 4 should not in this Paragraph. Repo Custodian assumes responsibility any way limit the foregoing:
(b) Schroder may rely upon the advice of the Trust or of counsel, who may be counsel for loss to any property held the Trust or counsel for Schroder, and upon statements of accountants, brokers and other persons believed by it pursuant in good faith to be expert in the provisions of this Agreement matters upon which is occasioned by the negligence ofthey are consulted, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian Schroder shall not be liable to Seller or the Funds anyone for (i) any action actions taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon such statements.
(c) Schroder may act upon any noticeoral instruction which it receives and which it believes in good faith was transmitted by the person or persons authorized by the Board of the Trust to give such oral instruction. Schroder shall have no duty or obligation to make any inquiry or effort of certification of such oral instruction.
(d) Xxxxxxxx shall not be liable for any action taken in good faith reliance upon any written instruction or certified copy of any resolution of the Board of the Trust, and Schroder may rely upon the genuineness of any such document or copy thereof reasonably believed in good faith by Schroder to have been validly executed.
(e) Schroder may rely and shall be protected in acting upon any signature, instruction, request, certificate letter of transmittal, certificate, opinion of counsel, statement, instrument, report, notice, consent, order, or other instrument reasonably paper document believed by it to be genuine and to be have been signed or presented by the purchaser, Trust or other proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 1 contract
Samples: Administration Agreement (Schroder Capital Funds /Delaware/)
Standard of Care. (a) Repo Custodian shall be obligated to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but Placement Agent shall be under no obligation duty to obtain insurance directly for the benefit of the Funds. So long take any action under this Agreement except as and specifically set forth herein or as may be specifically agreed to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian by Placement Agent in a written amendment to this Agreement.
(b) Neither Placement Agent nor any other Placement Agent Indemnitee (as defined in Section 11) shall not be liable for any action taken or for any failure to Seller or take an action based on reasonable reliance upon, and shall be indemnified by the Funds Fund for (i) any action taken or omitted by it in good faith in reasonable reliance upon proper instructionsupon:
(i) The written instructions of the Fund (including an officer of the Fund), or of counsel to the Fund; for purposes of this clause, procedures adopted by Placement Agent related to the implementation by Placement Agent of its obligations hereunder and the other activities contemplated to be taken by Placement Agent hereunder (acting individually or through its registered representatives) that have been reviewed and approved by the Fund or counsel to the Fund shall be deemed to be written instructions of the Fund or counsel to the Fund;
(ii) any action taken written instruction or omitted in good faith certified copy of any resolution of the Board of directors, trustees or managers of the Fund, and Placement Agent may rely upon the genuineness of any noticesuch document or copy thereof reasonably believed by Placement Agent to have been validly executed; or
(iii) any signature, instruction, request, certificate letter of transmittal, certificate, opinion of counsel, statement, instrument, report, notice, consent, order, or other instrument document reasonably believed by it Placement Agent to be genuine and to be have been signed or presented by the Investment Adviser or the Fund or other proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities ; and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian Placement Agent shall not be under any duty or obligation to ascertain whether inquire into the validity or invalidity or authority or lack thereof of any Securities at statement, written instruction, resolution, signature, request, letter of transmittal, certificate, opinion of counsel, instrument, report, notice, consent, order, or any time delivered other document or instrument which Placement Agent reasonably believes to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding genuine.
(c) Notwithstanding anything in this Agreement to the contrary hereincontrary, Repo Custodian Placement Agent shall be obligated liable to act in accordance with the guidelines Fund and proper instructions any of the Participating Funds, or the Custodian on behalf Fund’s interest holders only for any damages arising out of the Participating Funds, with respect Placement Agent’s failure to perform its duties under this Agreement to the types of Eligible Securities and extent such damages were caused by Placement Agent’s willful misfeasance, gross negligence or reckless disregard in the issuers performance of such Eligible Securities that may be used in specific repurchase transactionsduties.
(d) Repo Custodian promptly Placement Agent shall notify not be liable for the Fund Agent and delays or errors of other service providers to the Custodian if Securities held Fund, including the failure by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions service provider to provide information to Placement Agent when they have a duty to do so (irrespective of the Participating Funds, whether that duty is owed specifically to Placement Agent or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such actiona third party).
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 1 contract
Standard of Care. (a) Repo 1. The Custodian will use reasonable care, prudence and diligence with respect to its obligations under this Agreement and the safekeeping of property of the Portfolios. The Custodian shall be obligated liable to, and shall indemnify and hold harmless the Fund from and against any loss which shall occur as the result of the failure of the Custodian or a Sub-Custodian to exercise reasonable care, prudence and diligence with respect to their respective obligations under this Agreement and the safekeeping of such property. The determination of whether the Custodian or Sub-Custodian has exercised reasonable care, prudence and diligence in connection with their obligations under this Agreement shall be made in light of prevailing standards applicable to professional custodians in the jurisdiction in which such custodial services are performed. In the event of any loss to the Fund by reason of the failure of the Custodian or a Sub-Custodian to exercise reasonable care, prudence and diligence, the Custodian shall be liable to the Fund onJy to the extent of the Fund's direct damages and expenses, which damages, for purposes of property only, shall be determined based on the market value of the property which is the subject of the loss at the date of discovery of such loss and without reference to any special condition or circumstances.
2. The Custodian will not be responsible for any act, omission, or default of, or for the solvency of, any central securities depository or clearing agency.
3. The Custodian will not be responsible for any act, omission, or default of, or for the solvency o(pound) any broker or agent (not referred to in paragraph (b)(2) above) which it or a Sub-Custodian appoints and uses unless such appointment and use is made or done negligently or in bad faith. In the event such an appointment and use is made or done negligently or in bad faith, the Custodian shall be liable to the Fund only for direct damages and expenses (determined in the manner described in paragraph (b)(l) above) resulting from such appointment and use and, in the case of any loss due to an act, omission or default of such agent or broker, only to the extent that such loss occurs as a result of the failure of the agent or broker to exercise reasonable care ("reasonable care" for this purpose to be determined in light of the prevailing standards applicable to agents or brokers, as appropriate, in the jurisdiction where the services are performed).
4. The Custodian shall be entitled to rely, and diligence in carrying out may act, upon the provisions advice of this Agreement and counsel (who may be counsel for the Master Agreement Fund) on all matters and shall be liable to each of the Funds and Seller without liability for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action reasonably taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith and without negligence pursuant to such advice.
5. The Custodian shall be entitled to rely upon any notice, request, certificate or other instrument Instruction it receives pursuant to the applicable Sections of this Agreement that it reasonably believed by it believes to be genuine and to be signed from an Authorized Person. In the event that the Custodian receives oral Instructions, the Fund or its designee shall cause to be delivered to the Custodian, by the proper party close of business on the same day that such oral Instructions were given to the Custodian, written Instructions confirming such oral Instructions, whether by hand delivery, telex or partiesotherwise. The Fund agrees that the fact that no such confirming written Instructions are received by the Custodian shall in no way affect the validity of the transactions or enforceability of the transactions hereby authorized by the Fund. The Fund agrees that the Custodian shall incur no liability to the Fund in connection with (i) acting upon oral Instructions given to the Custodian hereunder, provided such instructions reasonably appear to have been received from an Authorized Person or (iiiii) any delay or failure deciding not to act as may be required under this Agreement solely upon oral Instructions, provided that the Custodian first contacts the giver of such oral Instructions and requests written confirmation immediately following any such decision not to act.
6. The Custodian shall supply the Fund or under its designee with such daily information regarding the Master Agreement when such delay or failure is due to any act cash and Securities positions and activity of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, each Portfolio as the case may be, with respect Custodian and the Fund or its designee shall from time to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall time agree. It is understood that such information will not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or audited by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any represents that such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it information will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo the best information then available to the Custodian, The Custodian shall have no dutiesresponsibility whatsoever for the pricing of Securities, accruing for income, valuing the effect of Corporate Actions, or for the failure of the Fund or its designee to reconcile differences between the information supplied by the Custodian, and information obtained by the Fund or its designee from other than such duties as are necessary sources, including but not limited to effectuate repurchase transactions in accordance with this Agreement pricing vendors and the Master Agreement within Fund's investment adviser. Subject to the standard foregoing, to the extent that any miscalculation by the Fund or its designee of care set forth a Portfolio's net asset value is attributable to the willful misfeasance, bad faith or negligence of the Custodian (including any Sub-Custodian ) in Paragraph 10(a) above and supplying or omitting to supply the Fund or its designee with information as aforesaid, the Custodian shall be liable to the Fund for any resulting loss (subject to such de minimis rule of change in a commercially reasonable mannervalue as the Board of Directors may from time to time adopt).
Appears in 1 contract
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care responsible for compliance with the terms and diligence in carrying out the provisions of this Agreement conditions and the Master Agreement and shall be liable to each performance of the Funds and Seller for any expenses only such duties as are set forth herein or damages contained in Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian shall have no implied duties or obligations (fiduciary or otherwise) hereunder. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. Other than as provided herein, neither the Custodian nor any of its directors, officers, agents or failure employees shall be liable for any action or omission to act hereunder except for its or their own negligence or lack of good faith or willful misconduct. In no event shall the Custodian or any of its directors, officers, agents or employees have any responsibility to ascertain or take action except as may be required under this Agreement or under expressly provided herein. Without limiting the Master Agreement when such delay or failure is due generality of the foregoing, the Custodian shall not have any duty to any act of God or war, (iv) make inquiry as to the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security receivedInstructions furnished by any person authorized as provided above and shall be fully protected in relying on any Instructions furnished by any person signing as, delivered holding or held by it pursuant identifying himself or herself as, or stating that he or she is, a person who has been so authorized. The Custodian shall be liable to this Agreement the Customer for any act or the Master Agreement, (vi) the legality of the purchase or sale omission to act of any Securities by or Subcustodian to the Participating Funds or Seller or same extent as if the propriety of Custodian committed such act itself, provided notwithstanding the amount for which foregoing, the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable for any losses due to Seller or the Funds for, or considered insolvency of a Subcustodian as long as it has exercised reasonable care in the selection of such Subcustodian. With respect to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the U.S. Securities System, except that this Paragraph 10(b) the Custodian shall not only be deemed responsible or liable for losses arising from employment of such Securities System caused by the Custodian’s own failure to limit exercise reasonable care. With respect to the liability placement and maintenance of Repo Custodian to Seller or the Funds if the Customer’s Foreign Assets with a non-delivery of such Eligible U.S. Securities System, the Custodian shall only be responsible or the liable for losses caused by its failure to receive comply with Section 10 of this Agreement. With respect to the placement and collect such money results from maintenance of Customer’s Foreign Assets with a non-U.S. Subcustodian, the breach Custodian shall only be responsible or Liable for losses caused by Repo Custodian its failure to comply with Section 5 of its obligations this Agreement. The Custodian’s performance of this Agreement is subject to the relevant local laws, regulations, decrees, orders and government acts, and the rules, operating procedures and practices of any relevant stock exchange, clearance system or market where or through which transactions are to be carried out under this Agreement or and to which the Master Agreement.
(c) Repo Custodian shall not be under is subject and as exist in the country in which any duty or obligation to ascertain whether Collateral is held. In the event of any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything loss to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions Customer by reason of the Participating Funds, or failure of the Custodian on behalf of the Participating Funds, with respect or a Subcustodian to conform to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the applicable standard of care set forth in Paragraph 10(athis Agreement, the Custodian shall be liable to the Customer to the extent of the Customer’s actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any indirect, incidental, punitive, consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) above on all matters and shall not be held liable for any action reasonably taken or omitted pursuant to such advice. In the event the Customer utilizes an electronic or other similar system to communicate with Custodian for any purpose, including, without limitation, the furnishing of Instructions, the Customer shall be fully responsible for the security of the connecting terminal utilized by Customer, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agrees to defend and indemnify the Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal. Should the Customer authorize, in accordance with the terms hereof, any agent to communicate with the Custodian and such agent utilizes any such system to so communicate, the Customer shall be responsible for the use of such system and shall defend, indemnify and hold harmless Custodian for such use to the same extent as if such system were being used by the Customer to communicate with the Custodian. In the event the Customer or any agent authorized pursuant to the terms hereof, accesses Account information via a Website, the Customer confirms that it is aware that communications over the internet cannot be guaranteed to be secure and that there is a risk that information displayed via the internet or contained within any communication made over the internet, including potentially confidential information, may be intercepted, lost, destroyed or delayed in display or transmission. Customer specifically agrees that the Custodian shall have no liability whether in contract, tort or otherwise for any direct, indirect or consequential loss or damage which may be suffered by Customer or any agent in connection with access made to Account information via a Website. Provided that the Custodian is not liable for damages in the performance of its duties and obligations hereunder, all collections of funds or other property paid or distributed in respect of Securities in an Account, including funds involved in third party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the standard of care applicable to the Custodian, the Custodian shall have no liability for any loss occasioned by delay in the actual receipt of notice by the Custodian or by a Subcustodian of any payment, redemption or other transaction regarding Securities in each Account in respect of which the Custodian has agreed to take action as provided in Section 3 hereof. The Custodian shall not be liable for any loss, liability, claim or expense resulting from, or caused by, anything which is a part of Country Risk (as described in Section 5 hereof) or acts of governmental authorities (whether de jure or de facto), including in each case, without limitation, (i) nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to the banking or securities industry; (ii) market conditions that prevent the orderly execution of securities transactions or affect the value of Property or the inability of a local clearing and settlement system to settle transactions for reasons beyond the control of the Custodian; (iii) acts of war, terrorism, insurrection or revolution; strikes or work stoppages; or (iv) hurricane, cyclone, earthquake, volcanic eruption, nuclear fusion, fission or radioactivity, or other acts of God. The Custodian shall have no liability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian’s duties hereunder by reason of the Custodian’s reliance upon records that were maintained for the Customer by entities other than the Custodian prior to the Custodian’s employment under this Agreement. The Custodian may consult with counsel selected by the Custodian with regard to legal questions arising out of or in connection with this Agreement, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action reasonably taken, omitted or suffered by Custodian in good faith and in a commercially accordance therewith; provided such action shall be in compliance with all the terms expressly provided herein. No provision of this Agreement shall require the Custodian to expend or risk its own funds or otherwise incur financial liability (other than expenses or liabilities otherwise required to be incurred by the express terms of this Agreement) in the performance of its duties under this Agreement if it shall have reasonable mannergrounds for believing that repayment of such funds is not reasonably likely. The provisions of this Section shall survive termination of this Agreement.
Appears in 1 contract
Samples: Custodian Agreement (Oppenheimer Senior Floating Rate Plus Fund)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in the Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or omission to act of any Subcustodian to the same extent as if the Custodian committed such act itself. Where, under applicable law, regulation, or practice (in order to facilitate the settlement of transactions related thereto), or where the Customer otherwise elects, Securities are held in a Securities System in a particular market, the Custodian shall only be responsible or liable for losses arising from employment of such Securities System caused by the Custodian's own failure to act as may exercise reasonable care. Where the Custodian otherwise elects to employ a Securities System for holding Securities in a particular market, the Custodian shall be required under this Agreement or under liable to the Master Agreement when such delay or failure is due to Customer for any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale omission of any Securities by or System to the Participating Funds or Seller or same extent as if the propriety Custodian committed such act itself. In the event of any loss to the Customer by reason of the amount for which failure of the same are purchased Custodian or sold (except a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in the Account including funds involved in third-party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in the Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 1 contract
Samples: Custodian Agreement (Capital Appreciation Portfolio)
Standard of Care. (a) Repo Custodian shall be obligated responsible for the performance of only such duties as are set forth herein or contained in Instructions given to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant that are not contrary to the provisions of this Agreement which is occasioned by Agreement. Custodian will use reasonable care and diligence with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencediligence, misfeasance or misconduct, Repo Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions unless Custodian acted with willful malfeasance or with bad faith, or was negligent, with respect to such action or omission (iii"Standard of Care"). Custodian shall be indemnified by Customer for any losses, damages, costs and expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by Custodian and arising out of action taken or omitted by Custodian hereunder or under any delay Instructions, unless Custodian acted with willful malfeasance or failure with bad faith, or was negligent, with respect to such action or omission. Custodian shall be liable to Customer for any act or omission to act of any Subcustodian to the same extent as may be required under this Agreement if Custodian committed such act or under the Master Agreement when such delay or failure is due omission itself. With respect to any act of God or war, (iv) the actions or omissions of a Securities System, (v) Custodian shall only be responsible or liable for losses arising from employment of such Securities System caused by Custodian's own failure to exercise reasonable care in selecting such Securities System; provided that in the title, validity or genuineness event of any security receivedsuch loss, delivered or held Custodian shall take all reasonable steps to enforce such claims as it may have against the Securities System to protect the interests of Customer. In the event of any loss to Customer by it pursuant to this Agreement or the Master Agreement, (vi) the legality reason of the purchase breach by Custodian or sale any Subcustodian of any Securities by or Custodian's Standard of Care, Custodian shall be liable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except Customer to the extent of Repo CustodianCustomer's obligations hereunder actual damages at the time such loss was discovered (including, without limitation, reasonable fees and expenses of counsel) without reference to determine whether securities are Eligible Securities any special conditions or circumstances. In no event shall Custodian be liable for any consequential or special damages. Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for Custodian or Customer) on all matters and shall be without liability for any action reasonably taken or omitted in good faith pursuant to calculate the Market Value of Securities and any Cash Collateral)such advice, (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, provided that with respect to the performance of any action or omission of any action upon such advice, the Custodian shall be required to conform to the provisions of this Agreement or (viii) Agreement, including the errors Standard of the Pricing Services, broker's brokers or broker dealers Care set forth in Schedule B.
this Section 16. In the event Customer subscribes to an electronic on-line service and communications system offered by Custodian, Customer shall be fully responsible for the security of its connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agrees to defend and indemnify Custodian and hold Custodian harmless from and against any and all losses, damages, costs and expenses (bincluding the fees and expenses of counsel) Repo incurred by Custodian as a result of any improper or unauthorized use of such terminal by Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities in an Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of Customer, provided, Custodian has acted in accordance with the Standard of Care set forth in this Section 16. Unless Custodian or any Subcustodian breaches the Custodian's standard of care, Custodian shall have no liability for any loss occasioned by delay in the actual receipt of notice by Custodian or by a Subcustodian of any payment, redemption or other transaction regarding Securities in each Account in respect of which Custodian has agreed to take action as provided in Section 3 hereof. Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether DE JURE or DE FACTO), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the reasonable control of Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by Customer, insofar as such loss, damage or expense arises from the performance of Custodian's duties hereunder by reason of Custodian's reliance upon records that were maintained for Customer by entities other than such duties as are necessary Custodian prior to effectuate repurchase transactions in accordance with Custodian's employment under this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerAgreement.
Appears in 1 contract
Samples: Custodian Agreement (Rydex Capital Partners Sphinx Fund)
Standard of Care. (a) Repo Custodian shall be obligated responsible for the performance of only such duties as are set forth herein or contained in Instructions given to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant that are not contrary to the provisions of this Agreement which is occasioned by Agreement. Custodian will use reasonable care and diligence with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencediligence, misfeasance or misconduct, Repo Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions unless Custodian acted with willful malfeasance or with bad faith, or was negligent, with respect to such action or omission (iii"Standard of Care"). Custodian shall be indemnified by Customer for any losses, damages, costs and expenses (including, without limitation, reasonable fees and expenses of counsel) incurred by Custodian and arising out of action taken or omitted by Custodian hereunder or under any delay Instructions, unless Custodian acted with willful malfeasance or failure with bad faith, or was negligent, with respect to such action or omission. Custodian shall be liable to Customer for any act or omission to act of any Subcustodian to the same extent as may be required under this Agreement if Custodian committed such act or under the Master Agreement when such delay or failure is due omission itself. With respect to any act of God or war, (iv) the actions or omissions of a Securities System, (v) Custodian shall only be responsible or liable for losses arising from employment of such Securities System caused by Custodian's own failure to exercise reasonable care in selecting such Securities System; provided that in the title, validity or genuineness event of any security receivedsuch loss, delivered or held Custodian shall take all reasonable steps to enforce such claims as it may have against the Securities System to protect the interests of Customer. In the event of any loss to Customer by it pursuant to this Agreement or the Master Agreement, (vi) the legality reason of the purchase breach by Custodian or sale any Subcustodian of any Securities by or Custodian's Standard of Care, Custodian shall be liable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except Customer to the extent of Repo CustodianCustomer's obligations hereunder actual damages at the time such loss was discovered (including, without limitation, reasonable fees and expenses of counsel) without reference to determine whether securities are Eligible Securities any special conditions or circumstances. In no event shall Custodian be liable for any consequential or special damages. Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for Custodian or Customer) on all matters and shall be without liability for any action reasonably taken or omitted in good faith pursuant to calculate the Market Value of Securities and any Cash Collateral)such advice, (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, PROVIDED that with respect to the performance of any action or omission of any action upon such advice, the Custodian shall be required to conform to the provisions of this Agreement or (viii) Agreement, including the errors Standard of the Pricing Services, broker's brokers or broker dealers Care set forth in Schedule B.
this Section 16. In the event Customer subscribes to an electronic on-line service and communications system offered by Custodian, Customer shall be fully responsible for the security of its connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agrees to defend and indemnify Custodian and hold Custodian harmless from and against any and all losses, damages, costs and expenses (bincluding the fees and expenses of counsel) Repo incurred by Custodian as a result of any improper or unauthorized use of such terminal by Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities in an Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of Customer, provided, Custodian has acted in accordance with the Standard of Care set forth in this Section 16. Unless Custodian or any Subcustodian breaches the Custodian's standard of care, Custodian shall have no liability for any loss occasioned by delay in the actual receipt of notice by Custodian or by a Subcustodian of any payment, redemption or other transaction regarding Securities in each Account in respect of which Custodian has agreed to take action as provided in Section 3 hereof. Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether DE JURE or DE FACTO), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the reasonable control of Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by Customer, insofar as such loss, damage or expense arises from the performance of Custodian's duties hereunder by reason of Custodian's reliance upon records that were maintained for Customer by entities other than such duties as are necessary Custodian prior to effectuate repurchase transactions in accordance with Custodian's employment under this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerAgreement.
Appears in 1 contract
Samples: Custodian Agreement (Rydex Capital Partners Sphinx Fund)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care responsible for compliance with the terms and diligence in carrying out the provisions of this Agreement conditions and the Master Agreement and shall be liable to each performance of the Funds and Seller for any expenses only such duties as are set forth herein or damages contained in Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian shall have no implied duties or obligations (fiduciary or otherwise) hereunder. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. Other than as provided herein, neither the Custodian nor any of its directors, officers, agents or failure employees shall be liable for any action or omission to act hereunder except for its or their own negligence or lack of good faith or willful misconduct. In no event shall the Custodian or any of its directors, officers, agents or employees have any responsibility to ascertain or take action except as may be required under this Agreement or under expressly provided herein. Without limiting the Master Agreement when such delay or failure is due generality of the foregoing, the Custodian shall not have any duty to any act of God or war, (iv) make inquiry as to the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security receivedInstructions furnished by any person authorized as provided above and shall be fully protected in relying on any Instructions furnished by any person signing as, delivered holding or held by it pursuant identifying himself or herself as, or stating that he or she is, a person who has been so authorized. The Custodian shall be liable to this Agreement the Customer for any act or the Master Agreement, (vi) the legality of the purchase or sale omission to act of any Securities by or Subcustodian to the Participating Funds or Seller or same extent as if the propriety of Custodian committed such act itself, provided notwithstanding the amount for which foregoing, the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable for any losses due to Seller or the Funds for, or considered insolvency of a Subcustodian as long as it has exercised reasonable care in the selection of such Subcustodian. With respect to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the U.S. Securities System, except that this Paragraph 10(b) the Custodian shall not only be deemed responsible or liable for losses arising from employment of such Securities System caused by the Custodian’s own failure to limit exercise reasonable care. With respect to the liability placement and maintenance of Repo Custodian to Seller or the Funds if the Customer’s Foreign Assets with a non-delivery of such Eligible U.S. Securities System, the Custodian shall only be responsible or the liable for losses caused by its failure to receive comply with Section 10 of this Agreement. With respect to the placement and collect such money results from maintenance of Customer’s Foreign Assets with a non-U.S. Subcustodian, the breach Custodian shall only be responsible or Liable for losses caused by Repo Custodian its failure to comply with Section 5 of its obligations this Agreement. The Custodian’s performance of this Agreement is subject to the relevant local laws, regulations, decrees, orders and government acts, and the rules, operating procedures and practices of any relevant stock exchange, clearance system or market where or through which transactions are to be carried out under this Agreement or and to which the Master Agreement.
(c) Repo Custodian shall not be under is subject and as exist in the country in which any duty or obligation to ascertain whether Collateral is held. In the event of any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything loss to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions Customer by reason of the Participating Funds, or failure of the Custodian on behalf of the Participating Funds, with respect or a Subcustodian to conform to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the applicable standard of care set forth in Paragraph 10(athis Agreement, the Custodian shall be liable to the Customer to the extent of the Customer’s actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any indirect, incidental, punitive, consequential or special damages . The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) above on all matters and shall not be held liable for any action reasonably taken or omitted pursuant to such advice. In the event the Customer utilizes an electronic or other similar system to communicate with Custodian for any purpose, including, without limitation, the furnishing of Instructions, the Customer shall be fully responsible for the security of the connecting terminal utilized by Customer, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agrees to defend and indemnify the Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal. Should the Customer authorize, in accordance with the terms hereof, any agent to communicate with the Custodian and such agent utilizes any such system to so communicate, the Customer shall be responsible for the use of such system and shall defend, indemnify and hold harmless Custodian for such use to the same extent as if such system were being used by the Customer to communicate with the Custodian. In the event the Customer or any agent authorized pursuant to the terms hereof, accesses Account information via a Website, the Customer confirms that it is aware that communications over the internet cannot be guaranteed to be secure and that there is a risk that information displayed via the internet or contained within any communication made over the internet, including potentially confidential information, may be intercepted, lost, destroyed or delayed in display or transmission. Customer specifically agrees that the Custodian shall have no liability whether in contract, tort or otherwise for any direct, indirect or consequential loss or damage which may be suffered by Customer or any agent in connection with access made to Account information via a Website. Provided that the Custodian is not liable for damages in the performance of its duties and obligations hereunder, all collections of funds or other property paid or distributed in respect of Securities in an Account, including funds involved in third party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the standard of care applicable to the Custodian, the Custodian shall have no liability for any loss occasioned by delay in the actual receipt of notice by the Custodian or by a Subcustodian of any payment, redemption or other transaction regarding Securities in each Account in respect of which the Custodian has agreed to take action as provided in Section 3 hereof. The Custodian shall not be liable for any loss, liability, claim or expense resulting from, or caused by, anything which is a part of Country Risk (as described in Section 5 hereof) or acts of governmental authorities (whether de jure or de facto), including in each case, without limitation, (i) nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to the banking or securities industry; (ii) market conditions that prevent the orderly execution of securities transactions or affect the value of Property or the inability of a local clearing and settlement system to settle transactions for reasons beyond the control of the Custodian; (iii) acts of war, terrorism, insurrection or revolution; strikes or work stoppages; or (iv) hurricane, cyclone, earthquake, volcanic eruption, nuclear fusion, fission or radioactivity, or other acts of God. The Custodian shall have no liability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian’s duties hereunder by reason of the Custodian’s reliance upon records that were maintained for the Customer by entities other than the Custodian prior to the Custodian’s employment under this Agreement. The Custodian may consult with counsel selected by the Custodian with regard to legal questions arising out of or in connection with this Agreement, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action reasonably taken, omitted or suffered by Custodian in good faith and in a commercially accordance therewith; provided such action shall be in compliance with all the terms expressly provided herein. No provision of this Agreement shall require the Custodian to expend or risk its own funds or otherwise incur financial liability (other than expenses or liabilities otherwise required to be incurred by the express terms of this Agreement) in the performance of its duties under this Agreement if it shall have reasonable mannergrounds for believing that repayment of such funds is not reasonably likely. The provisions of this Section shall survive termination of this Agreement.
Appears in 1 contract
Samples: Custodian Agreement (Oppenheimer Senior Floating Rate Plus Fund)
Standard of Care. (a) Repo Custodian shall be obligated to exercise reasonable care and diligence in carrying out the provisions Neither Fleet nor any of this Agreement and the Master Agreement and its officers, directors, employees, agents or affiliates shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action taken or omitted not taken by it under, or in good faith connection with, this Agreement, except for gross negligence or willful misconduct by Fleet as determined by a final and non-appealable judgment of a court of competent jurisdiction. IN NO EVENT SHALL FLEET BE LIABLE FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING LOST PROFITS AND LOST BUSINESS OPPORTUNITIES) EVEN IF IT IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION IN WHICH ANY SUCH DAMAGES MAY BE CLAIMED. SO LONG AS FLEET SHALL HAVE ACTED (OR REFRAINED FROM ACTING) IN GOOD FAITH, IT SHALL NOT BE LIABLE FOR ANY ERROR OF JUDGMENT IN ANY ACTION TAKEN, SUFFERED OR OMITTED BY, OR FOR ANY MISTAKE OF FACT OR LAW, UNLESS SUCH ACTION IS FOUND TO CONSTITUTE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY A FINAL AND NON-APPEALABLE JUDGMENT OF A COURT OF COMPETENT JURISDICTION. Fleet will not incur any liability hereunder by acting or not acting in reliance upon proper instructions, (ii) any action taken or omitted in good faith upon any notice, requestconsent, certificate certificate, statement or other instrument reasonably or writing believed by it to be genuine and to be signed or sent by the proper party or parties. Fleet shall not incur liability hereunder for any notice, (iii) consent, certificate, wire instruction, telecopy, or other writing which is delayed, canceled or changed without the actual knowledge of Fleet. Fleet shall not incur any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions liability for acts or omissions of a Securities System, (v) any domestic or foreign depository or book-entry system for the central handling of financial assets or any domestic or foreign custodian or subcustodian. Fleet shall not be responsible for the title, value, validity or genuineness of any security received, delivered or held by it pursuant Collateral subject to this Agreement Agreement. Fleet shall have no liability to the Pledgor or the Master Agreement, (vi) the legality any other person or entity for remitting any portion of the purchase or sale Collateral in the Collateral Account to Ableco after the delivery by Fleet of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities Termination Notice even if contrary instructions have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or to Fleet by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive Pledgor and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian Fleet shall have no duties, other than such duties as are necessary duty to effectuate repurchase transactions in accordance with this Agreement investigate whether and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerto what extent any Ableco Obligations shall then be outstanding.
Appears in 1 contract
Samples: Deposit Account Control and Intercreditor Agreement (Clean Harbors Inc)
Standard of Care. 1. The Custodian will use reasonable care, prudence and diligence with respect to its obligations under this Agreement, including its obligation to serve as the Fund’s foreign custody manager pursuant to Section 3A hereof and to report on and monitor risks of foreign depositories as provided in Sections 4(e) and (af) Repo hereof, and the safekeeping of property of the Portfolios. The Custodian shall be obligated liable to, and shall indemnify and hold harmless the Fund from and against any loss which shall occur as the result of the failure of the Custodian or a Sub-Custodian to exercise reasonable care, prudence and diligence with respect to their respective obligations under this Agreement and the safekeeping of such property. The determination of whether the Custodian or Sub-Custodian has exercised reasonable care, prudence and diligence in connection with their obligations under this Agreement shall be made in light of prevailing standards applicable to professional custodians in the jurisdiction in which such custodial services are performed. In the event of any loss to the Fund by reason of the failure of the Custodian or a Sub-Custodian to exercise reasonable care, prudence and diligence, the Custodian shall be liable to the Fund only to the extent of the Fund’s direct damages and expenses, which damages, for purposes of property only, shall be determined based on the market value of the property which is the subject of the loss at the date of discovery of such loss and without reference to any special condition or circumstances.
2. The Custodian will not be responsible for any act, omission, or default of, or for the solvency of, any central securities depository or clearing agency.
3. The Custodian will not be responsible for any act, omission, or default of, or for the solvency of, any broker or agent (not referred to in paragraph (b)(2) above) which it or a Sub-Custodian appoints and uses unless such appointment and use is made or done negligently or in bad faith. In the event such an appointment and use is made or done negligently or in bad faith, the Custodian shall be liable to the Fund only for direct damages and expenses (determined in the manner described in paragraph (b)(1) above) resulting from such appointment and use and, in the case of any loss due to an act, omission or default of such agent or broker, only to the extent that such loss occurs as a result of the failure of the agent or broker to exercise reasonable care (“reasonable care” for this purpose to be determined in light of the prevailing standards applicable to agents or brokers, as appropriate, in the jurisdiction where the services are performed).
4. The Custodian shall be entitled to rely, and diligence in carrying out may act, upon the provisions advice of this Agreement and counsel (who may be counsel for the Master Agreement Fund) on all matters and shall be liable to each of the Funds and Seller without liability for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action reasonably taken or omitted in good faith in reliance and without negligence pursuant to such advice.
5. The Custodian shall be entitled to rely upon proper instructions, (iix) any action taken or omitted in good faith upon any notice, request, certificate or other instrument Instruction it receives pursuant to the applicable Sections of this Agreement that it reasonably believed by it believes to be genuine and to be signed from an Authorized Person and (y) information it receives from a Custodial Agent or Sub-custodian in relation to Off-Book Cash Accounts. In the event that the Custodian receives oral Instructions, the Fund or its designee shall cause to be delivered to the Custodian, by the proper party close of business on the same day that such oral Instructions were given to the Custodian, written Instructions confirming such oral Instructions, whether by hand delivery, telex or partiesotherwise. The Fund agrees that the fact that no such confirming written Instructions are received by the Custodian shall in no way affect the validity of the transactions or enforceability of the transactions hereby authorized by the Fund. The Fund agrees that the Custodian shall incur no liability to the Fund in connection with (i) acting upon oral Instructions given to the Custodian hereunder, provided such instructions reasonably appear to have been received from an Authorized Person or (iiiii) any delay or failure deciding not to act solely upon oral Instructions, provided that the Custodian first contacts the giver of such oral Instructions and requests written confirmation immediately following any such decision not to act.
6. The Custodian shall supply the Fund or its designee with such daily information regarding the Cash and Securities positions and activity of each Portfolio as may be required under this Agreement the Custodian and the Fund or under the Master Agreement when such delay or failure is due its designee shall from time to any act time agree and details of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness all receipts and disbursements of any security receivedOff-Book Cash Account, delivered which shall be a reflection of information received from the relevant Custodial Agent or held Sub-Custodian by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall . It is understood that such information will not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or audited by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any represents that such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it information will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo the best information then available to the Custodian. The Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with responsibility whatsoever under this Agreement for the pricing of Securities, pricing of Off-Book Cash Accounts, accruing for income, valuing the effect of Corporate Actions, or for the failure of the Fund or its designee to reconcile differences between the information supplied by the Custodian and information obtained by the Fund or its designee from other sources, including but not limited to pricing vendors and the Master Agreement within Fund’s investment adviser. Subject to the standard foregoing, to the extent that any miscalculation by the Fund or its designee of care set forth a Portfolio’s net asset value is attributable to the willful misfeasance, bad faith or negligence of the Custodian (including any Sub-Custodian ) in Paragraph 10(a) above and supplying or omitting to supply the Fund or its designee with information as aforesaid, the Custodian shall be liable to the Fund for any resulting loss (subject to such de minimis rule of change in a commercially reasonable mannervalue as the Board of Directors of the Fund may from time to time adopt).
Appears in 1 contract
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care responsible for compliance with the terms and diligence in carrying out the provisions of this Agreement conditions and the Master Agreement and shall be liable to each performance of the Funds and Seller for any expenses only such duties as are set forth herein or damages contained in Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian shall have no implied duties or obligations (fiduciary or otherwise) hereunder. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. Other than as provided herein, neither the Custodian nor any of its directors, officers, agents or failure employees shall be liable for any action or omission to act hereunder except for its or their own negligence or lack of good faith or willful misconduct. In no event shall the Custodian or any of its directors, officers, agents or employees have any responsibility to ascertain or take action except as may be required under this Agreement or under expressly provided herein. Without limiting the Master Agreement when such delay or failure is due generality of the foregoing, the Custodian shall not have any duty to any act of God or war, (iv) make inquiry as to the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security receivedInstructions furnished by any person authorized as provided above and shall be fully protected in relying on any Instructions furnished by any person signing as, delivered holding or held by it pursuant identifying himself or herself as, or stating that he or she is, a person who has been so authorized the Custodian shall be liable to this Agreement the Customer for any act or the Master Agreement, (vi) the legality of the purchase or sale omission to act of any Securities by or Subcustodian to the Participating Funds or Seller or same extent as if the propriety of Custodian committed such act itself, provided notwithstanding the amount for which foregoing, the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable for any losses due to Seller or the Funds forinsolvency of a Subcustodian (excluding Custodian’s affiliates, or considered subsidiaries, divisions, etc.) as long as it has exercised reasonable care in the selection of such Subcustodian. With respect to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the U.S. Securities System, except that this Paragraph 10(b) the Custodian shall not only be deemed responsible or liable for losses arising from employment of such Securities System caused by the Custodian's own failure to limit exercise reasonable care. With respect to the liability placement and maintenance of Repo Custodian to Seller or the Funds if the Customer’s Foreign Assets with a non-delivery of such Eligible U.S. Securities System, the Custodian shall only be responsible or the liable for losses caused by its failure to receive comply with Section 10 of this Agreement. With respect to the placement and collect such money results from maintenance of Customer’s Foreign Assets with a non-U.S. Subcustodian, the breach Custodian shall only be responsible or liable for losses caused by Repo Custodian its failure to comply with Section 5 of its obligations this Agreement. The Custodian's performance of this Agreement is subject to the relevant local laws, regulations, decrees, orders and government acts, and the rules, operating procedures and practices of any relevant stock exchange, clearance system or market where or through which transactions are to be carried out under this Agreement or and to which the Master Agreement.
(c) Repo Custodian shall not be under is subject and as exist in the country in which any duty or obligation to ascertain whether Collateral is held. In the event of any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything loss to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions Customer by reason of the Participating Funds, or failure of the Custodian on behalf of the Participating Funds, with respect or a Subcustodian to conform to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the applicable standard of care set forth in Paragraph 10(athis Agreement, the Custodian shall be liable to the Customer to the extent of the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) above on all matters and shall not be held liable for any action reasonably taken or omitted pursuant to such advice. In the event the Customer utilizes an electronic or other similar system to communicate with Custodian for any purpose, including, without limitation, the furnishing of Instructions, the Customer shall be fully responsible for the security of the connecting terminal utilized by Customer, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agrees to defend and indemnify the Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal. Should the Customer authorize, in accordance with the terms hereof, any agent to communicate with the Custodian and such agent utilizes any such system to so communicate, the Customer shall be responsible for the use of such system and shall defend, indemnify and hold harmless Custodian for such use to the same extent as if such system were being used by the Customer to communicate with the Custodian. In the event the Customer or any agent authorized pursuant to the terms hereof, accesses Account information via a Website, the Customer confirms that it is aware that communications over the internet cannot be guaranteed to be secure and that there is a risk that information displayed via the internet or contained within any communication made over the internet, including potentially confidential information, may be intercepted, lost, destroyed or delayed in display or transmission. Customer specifically agrees that the Custodian shall have no liability whether in contract, tort or otherwise for any direct, indirect or consequential loss or damage which may be suffered by Customer or any agent in connection with access made to Account information via a Website. Provided that the Custodian is not liable for damages in the performance of its duties and obligations hereunder, all collections of funds or other property paid or distributed in respect of Securities in an Account, including funds involved in third party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the standard of care applicable to the Custodian, the Custodian shall have no liability for any loss occasioned by delay in the actual receipt of notice by the Custodian or by a Subcustodian of any payment, redemption or other transaction regarding Securities in each Account in respect of which the Custodian has agreed to take action as provided in Section 3 hereof. The Custodian shall not be liable for any loss, liability, claim or expense resulting from, or caused by, anything which is a part of Country Risk (as described in Section 5 hereof) or acts of governmental authorities (whether de jure or de facto), including in each case, without limitation, (i) nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to the banking or securities industry; (ii) market conditions that prevent the orderly execution of securities transactions or affect the value of Property or the inability of a local clearing and settlement system to settle transactions for reasons beyond the control of the Custodian; (iii) acts of war, terrorism, insurrection or revolution; strikes or work stoppages; or (iv) hurricane, cyclone, earthquake, volcanic eruption, nuclear fusion, fission or radioactivity, or other acts of God. The Custodian shall have no liability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than the Custodian prior to the Custodian's employment under this Agreement. The Custodian may consult with counsel selected by the Custodian with regard to legal questions arising out of or in connection with this Agreement, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action reasonably taken, omitted or suffered by Custodian in good faith and in a commercially accordance therewith; provided such action shall be in compliance with all the terms expressly provided herein. No provision of this Agreement shall require the Custodian to expend or risk its own funds or otherwise incur financial liability (other than expenses or liabilities otherwise required to be incurred by the express terms of this Agreement) in the performance of its duties under this Agreement if it shall have reasonable mannergrounds for believing that repayment of such funds is not reasonably likely. The provisions of this Section shall survive termination of this Agreement.
Appears in 1 contract
Samples: Custodian Agreement (Oppenheimer Senior Floating Rate Fund)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in the Account and, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at except as otherwise expressly provided herein in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or failure omission to act of any Subcustodian to the same extent as may be required under this Agreement or under if the Master Agreement when Custodian committed such delay or failure is due act itself. With respect to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity Custodian shall only be responsible or genuineness liable for losses arising from employment of such Securities System caused by the Custodian's own failure to exercise reasonable care. In the event of any security received, delivered or held loss to the Customer by it pursuant to this Agreement or the Master Agreement, (vi) the legality reason of the purchase failure of the Custodian or sale of any Securities by or a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in the Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in the Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties the Custodian prior to the Custodian's employment under this Agreement. The Customer hereby agrees to hold the Custodian harmless from any liability or loss resulting from any taxes or other governmental charges, and any expense related thereto, which may be imposed, or assessed with respect to any Property in the Account and also agrees to hold the Custodian, its Subcustodians, and their respective nominees harmless from any liability as are necessary to effectuate repurchase transactions a record holder of Property in accordance with the Account. The provisions of this Agreement and the Master Agreement within the standard Section shall survive termination of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Agreement.
Appears in 1 contract
Samples: Custodian Agreement (Ark Funds/Ma)
Standard of Care. (a) Repo Custodian Barclays shall be obligated responsible for the performance only of such duties-as are specifically forth herein or contained in Instructions given to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant Authorized Persons which are not contrary to the provisions of this Agreement Agreement. Barclays will use reasonable care with respect to the safekeeping of the Assets in the Custody Accounts and Cash Accounts and in the performance of its functions and duties under this Agreement. Barclays shall be liable to the Custodian for any loss which shall occur as the direct and foreseeable result of the failure of a Subcustodian to exercise reasonable care with respect to the safekeeping of Assets or in the performance of its functions or duties in connection herewith to the same extent that such Subcustodian would be liable to the Custodian under applicable law if such Subcustodian and the Custodian had directly entered into a custodial agreement governed by the law of the country of such Subcustodian. In the event of any loss to the Custodian by reason of the failure of Barclays or its Subcustodian to utilize reasonable care, Barclays shall be liable to the Custodian to the extent of the Custodian's direct and foreseeable damages, to be determined (in the case of a loss of property) based on the market value in U.S. dollars of the property which is occasioned the subject of the loss at the date on which actual notice of such loss is received by Barclays, and without reference to any special conditions or circumstances. Barclays shall be held to the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause exercise of reasonable care in carrying out this Agreement but shall be under no obligation to obtain insurance directly indemnified by, and shall be without liability to, the Custodian for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action taken or omitted by Barclays in good faith without negligence in reliance upon proper instructionsaccordance with the terms of this Agreement. Barclays shall be entitled to rely, and may act, on advice of counsel (iiwho may be counsel for the Custodian) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. Barclays will be subject to the reasonableness standard articulated above.
(b) Except as otherwise specifically agreed to herein, Barclays shall have no liability for any loss occasioned by any mistakes contained in, or errors in the transmission of, any Instruction, or by delay in the actual receipt of any Instruction or any notice to Barclays or by or to its Subcustodian of any payment, redemption or other transaction regarding Securities in the Custody Accounts in respect of which Barclays has agreed to take action as provided in Section 8 hereof. Barclays shall not be liable for any action taken or omitted in good faith upon any notice, request, certificate Instructions or other instrument reasonably believed by it in reliance upon the designation of "Authorized Persons" referred to be genuine in Section 10 hereof and to be signed by may rely on the proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security receivedsuch documents which it may in good faith believe to be validly executed. Barclays shall not be liable for any loss or damage resulting from or caused by nationalization, delivered expropriation, currency or held other regulatory restrictions, labor unrest, acts of war, civil war or terrorism, insurrection, revolution, military or usurped powers, nuclear fusion, fission or radiation, earthquake, storm or other disturbance of nature or acts of God.
(c) Without limiting the generality of the foregoing, neither Barclays nor any Subcustodian shall be under any duty or obligation to inquire into, or be liable for:
(i) the validity of the issue of any Securities purchased by it pursuant to this Agreement or for any Customer, the legality of the purchase thereof, or the Master Agreement, propriety of the amount paid therefor; or
(viii) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller for any Customer, or the propriety of the amount for which the same are purchased sold; or
(iii) any default in the payment of principal or sold income of any security other than as provided in Section 7 of this Agreement; or
(except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (viiiv) the due authority financial condition of any person listed on Schedule C broker, agent or other party to act on behalf of Custodian, Seller which Securities are delivered or the Funds, as the case may be, with respect payments are made pursuant to this Agreement or Agreement; or
(viiiv) the errors existence or content of any trade confirmations received from brokers; the Pricing Services, broker's brokers Custodian or broker dealers set forth in Schedule B.its Authorized Persons issuing Instructions shall bear any responsibility to review such confirmations against Instructions issued to and statements issued by Barclays.
(bd) Repo Custodian Neither Barclays nor any Subcustodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money received by it on behalf of Seller any Customer, until Barclays or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect Subcustodian actually receives such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreementmoney.
(ce) Repo Neither Barclays nor any Subcustodian shall be under any duty or obligation to take action to effect collection of any amount, if the Securities upon which such amount is payable are in default, or if payment is refused after due demand or presentation, unless and until (i) it shall be directed to take such action by Instructions, and (ii) it shall be assured to its satisfaction of reimbursement of its costs and expenses by the Custodian in connection with any such action.
(f) Neither Barclays nor any Subcustodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it in any Custody Account are such as may properly may be held by a Customer.
(g) It is understood and agreed that Barclays is not under any duty to maintain any insurance for the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions benefit of the Participating Funds, any Customer or the Custodian on behalf of or to supervise the Participating Fundsinvestment of, or to advise or make any recommendation to any Customer or the Custodian with respect to the types sale or other disposition of Eligible any Securities and at any time held hereunder or to advise or recommend the issuers purchase of such Eligible any Securities that may be used in specific repurchase transactionsat any time.
(dh) Repo The Custodian promptly shall notify will indemnify Barclays for any direct and foreseeable damages to Barclays with respect to the Fund Agent performance of Barclays, obligations under this Agreement (including, but not limited to, Barclays, legal fees and the Custodian if Securities held by Repo Custodian are in default or if payment on expenses and any Securities has been refused after due demand other legal fees and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Fundsexpenses for which Barclays is liable, and assurances satisfactory to it that it will be reimbursed for its costs and expenses any loss or liability in connection with a claim settled by Barclays, which agreement is accepted by the Custodian) unless such direct and foreseeable damages arises from any such actionfailure by Barclays or any Subcustodian to exercise reasonable care with respect to any assets in any Custody or Cash Account or from any negligence, fraud, bad faith, willful misconduct or reckless disregard of duties on the part of Barclays or any Subcustodian which maintains any Securities.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 1 contract
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in each Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or failure omission to act of any Subcustodian to the same extent as may be required under this Agreement or under if the Master Agreement when Custodian committed such delay or failure is due act itself. With respect to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity Custodian shall only be responsible or genuineness liable for losses arising from employment of such Securities System caused by the Custodian's own failure to exercise reasonable care. In the event of any security received, delivered or held loss to the Customer by it pursuant to this Agreement or the Master Agreement, (vi) the legality reason of the purchase failure of the Custodian or sale of any Securities by or a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and All collections of funds or other property paid or distributed in respect of Securities and in an Account, including funds involved in third-party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in each Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 1 contract
Samples: Custodian Agreement (FMB Funds Inc)
Standard of Care. (a) Repo Custodian 1. The Subcustodian will use reasonable care with respect to its obligations under this Agreement and the safekeeping of property of the Portfolios. The Subcustodian shall be obligated liable to, and shall indemnify and hold harmless the Custodian from and against any loss which shall occur as the result of the failure of the Subcustodian or a Sub-Agent (other than a foreign securities depository or clearing agency) to exercise reasonable care and diligence in carrying out the provisions of with respect to their respective obligations under this Agreement and the Master safekeeping of such property. The determination of whether the Subcustodian or Sub-Agent has exercised reasonable care in connection with their other obligations under this Agreement and shall be made in light of prevailing standards applicable to professional custodians in the jurisdiction in which such custodial services are performed. In the event of any loss to the Custodian by reason of the failure of the Subcustodian or a Sub-Agent (other than a foreign securities depository or clearing agency) to exercise reasonable care, the Subcustodian shall be liable to each the Custodian only to the extent of the Funds Custodian's direct damages and Seller expenses, which damages, for purposes of property only, shall be determined based on the market value of the property which is the subject of the loss at the date of discovery of such loss and without reference to any special condition or circumstances.
2. The Subcustodian will not be responsible for any expenses act, omission, or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence default of, or conversionfor the solvency of, misappropriation any foreign securities depository or theft byclearing agency approved by the Board of Directors or a Delegate of the Fund pursuant to Section (1)(m) or Section 3 hereof.
3. The Subcustodian will not be responsible for any act, Repo Custodian's officersomission, employees or default of, or for the solvency of, any broker or agent (not referred to in paragraph (b)(2) above) which it or a Sub-Agent appoints and agentsuses unless such appointment and use is made or done negligently or in bad faith. Repo CustodianIn the event such an appointment and use is made or done negligently or in bad faith, at its option, may insure itself against loss from any cause but the Subcustodian shall be under no obligation liable to obtain insurance directly the Custodian only for direct damages and expenses (determined in the benefit manner described in paragraph (b)(1) above) resulting from such appointment and use and, in the case of the Funds. So long as and any loss due to an act, omission or default of such agent or broker, only to the extent that Repo Custodian exercises such loss occurs as a result of the failure of the agent or broker to exercise reasonable care ("reasonable care" for this purpose to be determined in light of the prevailing standards applicable to agents or brokers, as appropriate, in the jurisdiction where the services are performed).
4. The Subcustodian shall be entitled to rely, and diligence and acts without negligencemay act, misfeasance or misconduct, Repo upon the advice of counsel (who may be counsel for the Custodian shall not be liable to Seller or the Funds Fund) on all matters and shall be without liability for (i) any action reasonably taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith and without negligence pursuant to such advice.
5. The Subcustodian shall be entitled to rely upon any notice, request, certificate or other instrument Instruction it receives pursuant to the applicable Sections of this Agreement that it reasonably believed by it believes to be genuine and to be signed from an Authorized Person. In the event that the Subcustodian receives oral Instructions, the Custodian or its designee shall cause to be delivered to the Subcustodian, by the proper party close of business on the same day that such oral Instructions were given to the Subcustodian, written Instructions confirming such oral Instructions, whether by hand delivery, telex or partiesotherwise. The Custodian agrees that the fact that no such confirming written Instructions are received by the Subcustodian shall in no way affect the validity of the transactions or enforceability of the transactions hereby authorized by the Custodian. The Custodian agrees that the Subcustodian shall incur no liability to the Custodian in connection with (i) acting upon oral Instructions given to the Subcustodian hereunder, provided such instructions reasonably appear to have been received from an Authorized Person or (iiiii) any delay or failure deciding not to act solely upon oral Instructions, provided that the Subcustodian first contacts the giver of such oral Instructions and requests written confirmation immediately following any such decision not to act.
6. The Subcustodian shall supply the Custodian or its designee with such daily information regarding the cash and Securities positions and activity of each Portfolio as may the Subcustodian and the Custodian or its designee shall from time to time agree. It is understood that such information will not be required under this Agreement audited by the Subcustodian and the Subcustodian represents that such information will be the best information then available to the Subcustodian. The Subcustodian shall have no responsibility whatsoever for the pricing of Securities, accruing for income, valuing the effect of Corporate Actions, or under for the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase Custodian or sale of any Securities its designee to reconcile differences between the information supplied by the Subcustodian and information obtained by the Custodian or its designee from other sources, including but not limited to pricing vendors and the Fund's investment adviser. Subject to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except foregoing, to the extent that any miscalculation by the Custodian or its designee of Repo Custodiana Portfolio's obligations hereunder net asset value is attributable to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral)willful misfeasance, (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller bad faith or the Funds, as the case may be, with respect to this Agreement or (viii) the errors negligence of the Pricing ServicesSubcustodian (including any Sub-Agent other than a foreign securities depository or clearing agency) in supplying or omitting to supply the Custodian or its designee with information as aforesaid, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian the Subcustodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf for any resulting loss (subject to such de minimis rule of change in value as the Participating Funds, Board of Directors may from time to time adopt with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactionsFund).
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 1 contract
Standard of Care. (a) Repo Custodian shall be obligated to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but Placement Agent shall be under no obligation duty to obtain insurance directly for the benefit of the Funds. So long take any action under this Agreement except as and specifically set forth herein or as may be specifically agreed to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian by Placement Agent in a written amendment to this Agreement.
(b) Neither Placement Agent nor any other Placement Agent Indemnitee (as defined in Section 10) shall not be liable for any action taken or for any failure to Seller or take an action based on reasonable reliance upon, and shall be indemnified by the Funds Fund for (i) any action taken or omitted by it in good faith in reliance upon proper instructionsreasonable reliable upon:
(i) the written instructions of the Fund (including an officer of the Fund), or of counsel to the Fund; for purposes of this clause, procedures adopted by Placement Agent related to the implementation by Placement Agent of its obligations hereunder and the other activities contemplated to be taken by Placement Agent hereunder (acting individually or through its registered representatives) that have been reviewed and approved by the Fund or counsel to the Fund shall be deemed to be written instructions of the Fund or counsel to the Fund;
(ii) any action taken written instruction or omitted in good faith certified copy of any resolution of the Board of directors, trustees or managers of the Investment Adviser or the Fund, and Placement Agent may rely upon the genuineness of any noticesuch document or copy thereof reasonably believed by Placement Agent to have been validly executed; or
(iii) any signature, instruction, request, certificate letter of transmittal, certificate, opinion of counsel, statement, instrument, report, notice, consent, order, or other instrument document reasonably believed by it Placement Agent to be genuine and to be have been signed or presented by the Investment Adviser or the Fund or other proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian Placement Agent shall not be under any duty or obligation to ascertain whether inquire into the validity or invalidity or authority or lack thereof of any Securities at statement, written instruction, resolution, signature, request, letter of transmittal, certificate, opinion of counsel, instrument, report, notice, consent, order, or any time delivered other document or instrument which Placement Agent reasonably believes to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding genuine.
(c) Notwithstanding anything in this Agreement to the contrary hereincontrary, Repo Custodian Placement Agent shall not be obligated liable to act in accordance with the guidelines and proper instructions Fund or any of the Participating FundsFund’s Unitholders for any damages arising out of Placement Agent’s failure to perform its duties under this Agreement, or the Custodian on behalf of the Participating Funds, with respect except to the types of Eligible Securities and extent that such damages were caused by Placement Agent’s willful misfeasance, gross negligence or reckless disregard in the issuers performance of such Eligible Securities that may be used in specific repurchase transactionsduties.
(d) Repo Custodian promptly Placement Agent shall notify not be liable for the Fund Agent and delays or errors of other service providers to the Custodian if Securities held Fund, including the failure by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions service provider to provide information to Placement Agent when they have a duty to do so (irrespective of the Participating Funds, whether that duty is owed specifically to Placement Agent or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such actiona third party).
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 1 contract
Samples: Private Placement Agent Agreement (Ellington Income Opportunities Fund)
Standard of Care. (a) Repo 1. The Custodian will use reasonable care, prudence and diligence with respect to its obligations under this Agreement and the safekeeping of property of the Portfolios. The Custodian shall be obligated liable to, and shall indemnify and hold harmless the Fund from and against any loss, damage, cost, expense (including reasonable attorneys' fees and disbursements), liability or claim which shall occur as a result of: the failure of the Custodian or a Sub-Custodian to exercise reasonable care, prudence and diligence with respect to their respective obligations under this Agreement and the safekeeping of such property; the negligence, bad faith, or willful misconduct on the part of the Custodian or Sub-Custodian or any nominee of the Custodian or Sub-Custodian; and a breach of this Agreement by the Custodian that is not the result of actions of third parties not under the control of the Custodian. The determination of whether the Custodian or Sub-Custodian has exercised reasonable care, prudence and diligence in connection with their obligations under this Agreement shall be made in light of prevailing standards applicable to professional custodians in the jurisdiction in which such custodial services are performed. In the event of any loss to the Fund by reason of the failure of the Custodian or a Sub-Custodian to exercise reasonable care, prudence and diligence, the Custodian shall be liable to the Fund only to the extent of the Fund's direct damages and expenses, which damages, for purposes of property only, shall be determined based on the market value of the property which is the subject of the loss at the date of discovery of such loss by the Fund and without reference to any special condition or circumstances.
2. The Custodian will not be responsible for any act, omission, or default of, or for the solvency of, any central securities depository or clearing agency.
3. The Custodian will not be responsible for any act, omission, or default of, or for the solvency of, any broker or agent (not referred to in paragraph (b)(2) above) which it or a Sub-Custodian appoints and uses unless such appointment and use is made or done negligently or in bad faith. In the event such an appointment and use is made or done negligently or in bad faith, the Custodian shall be liable to the Fund only for direct damages and expenses (determined in the manner described in paragraph (b)(1) above) resulting from such appointment and use and, in the case of any loss due to an act, omission or default of such agent or broker, only to the extent that such loss occurs as a result of the failure of the agent or broker to exercise reasonable care ("reasonable care" for this purpose to be determined in light of the prevailing standards applicable to agents or brokers, as appropriate, in the jurisdiction where the services are performed).
4. The Custodian shall be entitled to rely, and diligence in carrying out may act, upon the provisions advice of this Agreement and counsel (who may be counsel for the Master Agreement Fund) on all matters and shall be liable to each of the Funds and Seller without liability for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but shall be under no obligation to obtain insurance directly for the benefit of the Funds. So long as and to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian shall not be liable to Seller or the Funds for (i) any action reasonably taken or omitted in good faith in reliance upon proper instructions, (ii) any action taken or omitted in good faith and without negligence pursuant to such advice.
5. The Custodian shall be entitled to rely upon any notice, request, certificate or other instrument Instruction it receives pursuant to the applicable Sections of this Agreement that it reasonably believed by it believes to be genuine and to be signed from an Authorized Person. In the event that the Custodian receives oral Instructions, the Fund or its designee shall cause to be delivered to the Custodian, by the proper party close of business on the same day that such oral Instructions were given to the Custodian, written Instructions confirming such oral Instructions, whether by hand delivery, telex or partiesotherwise. The Fund agrees that the fact that no such confirming written Instructions are received by the Custodian shall in no way affect the validity of the transactions or enforceability of the transactions hereby authorized by the Fund. The Fund agrees that the Custodian shall incur no liability to the Fund in connection with (i) acting upon oral Instructions given to the Custodian hereunder, provided such instructions reasonably appear to have been received from an Authorized Person or (iiiii) any delay or failure deciding not to act solely upon oral Instructions, provided that the Custodian first contacts the giver of such oral Instructions and requests written confirmation immediately following any such decision not to act.
6. The Custodian shall supply the Fund or its designee with such daily information regarding the cash and Securities positions and activity of each Portfolio as may the Custodian and the Fund or its designee shall from time to time agree. It is understood that such information will not be required under this Agreement audited by the Custodian and the Custodian represents that such information will be the best information then available to the Custodian. The Custodian shall cooperate with and supply necessary information to the entity or under entities appointed by the Master Agreement when such delay or failure is due Fund to any act keep the books of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality account of the purchase or sale of any Securities by or to Fund and/or compute the Participating Funds or Seller or the propriety value of the amount for which assets of the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, Fund. The Custodian shall take all such reasonable actions as the case Fund may befrom time to time request to enable the Fund to obtain, with respect from year to this Agreement or (viii) the errors of the Pricing Servicesyear, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results opinions from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, Fund's independent accountants with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses Custodian's activities hereunder in connection with (a) the preparation of the Fund's reports on Form N-1A and Form N-SAR and any such action.
other reports required by the Securities and Exchange Commission, and (eb) Repo the fulfillment by the Fund of any other requirements of the Securities and Exchange Commission. The Custodian shall have no dutiesresponsibility whatsoever for the pricing of Securities, accruing for income, valuing the effect of Corporate Actions, or for the failure of the Fund or its designee to reconcile differences between the information supplied by the Custodian and information obtained by the Fund or its designee from other than such duties as are necessary sources, including but not limited to effectuate repurchase transactions in accordance with this Agreement pricing vendors and the Master Agreement within Fund's investment adviser. Subject to the standard foregoing, to the extent that any miscalculation by the Fund or its designee of care set forth a Portfolio's net asset value is attributable to the willful misfeasance, bad faith or negligence of the Custodian (including any Sub-Custodian ) in Paragraph 10(a) above and supplying or omitting to supply the Fund or its designee with information as aforesaid, the Custodian shall be liable to the Fund for any resulting loss (subject to such de minimis rule of change in a commercially reasonable mannervalue as the Board of Directors may from time to time adopt).
Appears in 1 contract
Standard of Care. (a) Repo Custodian shall be obligated to exercise reasonable care and diligence in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant to the provisions of this Agreement which is occasioned by the negligence of, or conversion, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at its option, may insure itself against loss from any cause but Placement Agent shall be under no obligation duty to obtain insurance directly for the benefit of the Funds. So long take any action under this Agreement except as and specifically set forth herein or as may be specifically agreed to the extent that Repo Custodian exercises reasonable care and diligence and acts without negligence, misfeasance or misconduct, Repo Custodian by Placement Agent in a written amendment to this Agreement.
(b) Neither Placement Agent nor any other Placement Agent Indemnitee (as defined in Section 11) shall not be liable for any action taken or for any failure to Seller or take an action based on reasonable reliance upon, and shall be indemnified by the Funds Fund for (i) any action taken or omitted by it in good faith in reasonable reliance upon proper instructionsupon:
(i) The written instructions of the Fund (including an officer of the Fund), or of counsel to the Fund; for purposes of this clause, procedures adopted by Placement Agent related to the implementation by Placement Agent of its obligations hereunder and the other activities contemplated to be taken by Placement Agent hereunder (acting individually or through its registered representatives) that have been reviewed and approved by the Fund or counsel to the Fund shall be deemed to be written instructions of the Fund or counsel to the Fund;
(ii) any action taken written instruction or omitted in good faith certified copy of any resolution of the Board of directors, trustees or managers of the Investment Adviser or the Fund, and Placement Agent may rely upon the genuineness of any noticesuch document or copy thereof reasonably believed by Placement Agent to have been validly executed; or
(iii) any signature, instruction, request, certificate letter of transmittal, certificate, opinion of counsel, statement, instrument, report, notice, consent, order, or other instrument document reasonably believed by it Placement Agent to be genuine and to be have been signed or presented by the Investment Adviser or the Fund or other proper party or parties, (iii) any delay or failure to act as may be required under this Agreement or under the Master Agreement when such delay or failure is due to any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale of any Securities by or to the Participating Funds or Seller or the propriety of the amount for which the same are purchased or sold (except to the extent of Repo Custodian's obligations hereunder to determine whether securities are Eligible Securities ; and to calculate the Market Value of Securities and any Cash Collateral), (vii) the due authority of any person listed on Schedule C to act on behalf of Custodian, Seller or the Funds, as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth in Schedule B.
(b) Repo Custodian shall not be liable to Seller or the Funds for, or considered to be the custodian of, any Eligible Securities or any money to be used in a repurchase transaction, whether or not such money is represented by any check, draft, or other instrument for the payment of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian Placement Agent shall not be under any duty or obligation to ascertain whether inquire into the validity or invalidity or authority or lack thereof of any Securities at statement, written instruction, resolution, signature, request, letter of transmittal, certificate, opinion of counsel, instrument, report, notice, consent, order, or any time delivered other document or instrument which Placement Agent reasonably believes to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding genuine.
(c) Notwithstanding anything in this Agreement to the contrary hereincontrary, Repo Custodian Placement Agent shall be obligated liable to act in accordance with the guidelines Fund and proper instructions any of the Participating Funds, or the Custodian on behalf Fund’s interest holders only for any damages arising out of the Participating Funds, with respect Placement Agent’s failure to perform its duties under this Agreement to the types of Eligible Securities and extent such damages were caused by Placement Agent’s willful misfeasance, gross negligence or reckless disregard in the issuers performance of such Eligible Securities that may be used in specific repurchase transactionsduties.
(d) Repo Custodian promptly Placement Agent shall notify not be liable for the Fund Agent and delays or errors of other service providers to the Custodian if Securities held Fund, including the failure by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions service provider to provide information to Placement Agent when they have a duty to do so (irrespective of the Participating Funds, whether that duty is owed specifically to Placement Agent or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such actiona third party).
(e) Repo Custodian shall have no duties, other than such duties as are necessary to effectuate repurchase transactions in accordance with this Agreement and the Master Agreement within the standard of care set forth in Paragraph 10(a) above and in a commercially reasonable manner.
Appears in 1 contract
Samples: Private Placement Agent Agreement (Infinity Core Alternative Fund)
Standard of Care. (a) Repo The Custodian shall be obligated to exercise reasonable care and diligence responsible for the performance of only such duties as are set forth herein or contained in carrying out the provisions of this Agreement and the Master Agreement and shall be liable to each of the Funds and Seller for any expenses or damages Instructions given to the Funds or Seller for breach of Repo Custodian's standard of care in this Agreement, as further provided in this Paragraph. Repo Custodian assumes responsibility for loss to any property held by it pursuant which are not contrary to the provisions of this Agreement which is occasioned by Agreement. The Custodian will use reasonable care with respect to the negligence ofsafekeeping of Property in the Account and, or conversionexcept as otherwise expressly provided herein, misappropriation or theft by, Repo Custodian's officers, employees and agents. Repo Custodian, at in carrying out its option, may insure itself against loss from any cause but shall be obligations under no obligation to obtain insurance directly for the benefit of the Fundsthis Agreement. So long as and to the extent that Repo Custodian exercises it has exercised reasonable care and diligence and acts without negligencecare, misfeasance or misconduct, Repo the Custodian shall not be liable responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to Seller or the Funds this Agreement and shall be held harmless in acting upon, and may conclusively rely on, without liability for (i) any action taken or omitted in good faith in reliance upon proper instructionsloss resulting therefrom, (ii) any action taken or omitted in good faith upon any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions, and shall be indemnified by the Customer for any losses, damages, costs and expenses (iiiincluding, without limitation, the fees and expenses of counsel) incurred by the Custodian and arising out of action taken or omitted with reasonable care by the Custodian hereunder or under any delay Instructions. The Custodian shall be liable to the Customer for any act or omission to act of any Subcustodian to the same extent as if the Custodian committed such act itself. Where, under applicable law, regulation, or practice (in order to facilitate the settlement of transactions related thereto), or where the Customer otherwise elects, Securities are held in a Securities System in a particular market, the Custodian shall only be responsible or liable for losses arising from employment of such Securities System caused by the Custodian's own failure to act as may exercise reasonable care. Where the Custodian otherwise elects to employ a Securities System to hold Securities in a particular market, the Custodian shall be required under this Agreement or under liable to the Master Agreement when such delay or failure is due to Customer for any act of God or war, (iv) the actions or omissions of a Securities System, (v) the title, validity or genuineness of any security received, delivered or held by it pursuant to this Agreement or the Master Agreement, (vi) the legality of the purchase or sale omission of any Securities by or System to the Participating Funds or Seller or same extent as if the propriety Custodian committed such act itself. In the event of any loss to the Customer by reason of the amount for which failure of the same are purchased Custodian or sold (except a Subcustodian to utilize reasonable care, the Custodian shall be liable to the Customer to the extent of Repo the Customer's actual damages at the time such loss was discovered without reference to any special conditions or circumstances. In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall be entitled to rely, and may act, on advice of counsel (who may be counsel for the Customer) on all matters and shall be without liability for any action reasonably taken or omitted pursuant to such advice. In the event the Customer subscribes to an electronic on-line service and communications system offered by the Custodian, the Customer shall be fully responsible for the security of the Customer's obligations hereunder connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agree to determine whether securities are Eligible Securities defend and to calculate indemnify the Market Value Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Customer or by any others. All collections of funds or other property paid or distributed in respect of Securities and in the Account, including funds involved in third- party foreign exchange transactions, shall be made at the risk of the Customer. Subject to the exercise of reasonable care, the Custodian shall have no liability for any Cash Collateral), (vii) loss occasioned by delay in the due authority actual receipt of notice by the Custodian or by a Subcustodian of any person listed on Schedule C payment, redemption or other transaction regarding Securities in the Account in respect of which the Custodian has agreed to act on behalf of Custodian, Seller or the Funds, take action as the case may be, with respect to this Agreement or (viii) the errors of the Pricing Services, broker's brokers or broker dealers set forth provided in Schedule B.
(b) Repo Section 3 hereof. The Custodian shall not be liable to Seller or the Funds forfor any loss resulting from, or considered caused by, or resulting from acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation, and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to be the custodian ofbanking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, any Eligible Securities terrorism, insurrection or any money revolution; strikes or work stoppages; the inability of a local clearing and settlement system to be used in a repurchase transactionsettle transactions for reasons beyond the control of the Custodian; hurricane, whether cyclone, earthquake, volcanic eruption, nuclear fusion, fission or not such money is represented by any check, draftradioactivity, or other instrument for the payment acts of money, until the Eligible Securities have been delivered in accordance with Paragraph 3 or until Repo Custodian actually receives and collects such money on behalf of Seller or the Funds directly or by the final crediting of the Seller Account or a Transaction Account through the Securities System, except that this Paragraph 10(b) shall not be deemed to limit the liability of Repo Custodian to Seller or the Funds if the non-delivery of such Eligible Securities or the failure to receive and collect such money results from the breach by Repo Custodian of its obligations under this Agreement or the Master Agreement.
(c) Repo Custodian shall not be under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it are such as properly may be held by the Participating Funds; provided that notwithstanding anything to the contrary herein, Repo Custodian shall be obligated to act in accordance with the guidelines and proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, with respect to the types of Eligible Securities and the issuers of such Eligible Securities that may be used in specific repurchase transactions.
(d) Repo Custodian promptly shall notify the Fund Agent and the Custodian if Securities held by Repo Custodian are in default or if payment on any Securities has been refused after due demand and presentation and Repo Custodian shall take action to effect collection of any such amounts upon the proper instructions of the Participating Funds, or the Custodian on behalf of the Participating Funds, and assurances satisfactory to it that it will be reimbursed for its costs and expenses in connection with any such action.
(e) Repo God. The Custodian shall have no dutiesliability in respect of any loss, damage or expense suffered by the Customer, insofar as such loss, damage or expense arises from the performance of the Custodian's duties hereunder by reason of the Custodian's reliance upon records that were maintained for the Customer by entities other than such duties as are necessary the Custodian prior to effectuate repurchase transactions in accordance with the Custodian's employment under this Agreement and the Master Agreement within the standard Agreement. The provisions of care set forth in Paragraph 10(a) above and in a commercially reasonable mannerthis Section shall survive termination of this Agreement.
Appears in 1 contract
