The Securities Intermediary. a. The duties, responsibilities and obligations of Securities Intermediary shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied against the Securities Intermediary. The Securities Intermediary shall not be subject to, nor required to comply with, any other agreement to which Pledgor or Secured Party is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from Pledgor or Secured Party or an entity acting on its behalf. The Securities Intermediary shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder. b. If at any time the Securities Intermediary is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Collateral (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Collateral), the Securities Intermediary is authorized to, in good faith, comply therewith in any manner it (in its reasonable determination) or legal counsel of its own choosing reasonably deems appropriate; and if the Securities Intermediary complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, Securities Intermediary shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect. c. The Securities Intermediary shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of negligence or willful misconduct on its part. In no event shall the Securities Intermediary be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from Secured Party, (ii) for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, or (iv) for an amount in excess of the value of the Collateral, but only to the extent of direct money damages. d. If any fees, expenses or costs incurred by, or any obligations owed to, the Securities Intermediary or its counsel hereunder are not promptly paid when due, the Securities Intermediary (i) may reimburse itself therefor from the Collateral consisting of cash (in an aggregate amount not to exceed $100,000) and (ii) may sell, liquidate, convey or otherwise dispose of any investment in respect of the Collateral with an aggregate value not to exceed $100,000 (less the aggregate amount of cash Collateral applied to reimbursement pursuant to clause (i) above) for such purpose. In addition, the Securities Intermediary may in its sole discretion withhold from any distribution of Collateral that would otherwise be released to Pledgor an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Securities Intermediary is entitled to hereunder. e. As security for the due and punctual performance of any and all of Pledgor’s obligations to the Securities Intermediary hereunder, now or hereafter arising, in an aggregate amount not to exceed $100,000, Pledgor hereby pledges, assigns and grants to the Securities Intermediary a continuing security interest in, and a lien on, the Collateral and all distributions thereon or additions thereto. The security interest of the Securities Intermediary shall at all times be valid, perfected and enforceable by the Securities Intermediary against Pledgor and all third parties in accordance with the terms of this Agreement. f. The Securities Intermediary may consult with legal counsel of its own choosing in good faith, at the reasonable expense of Pledgor, as to any matter relating to this Agreement, and the Securities Intermediary shall not incur any liability in acting in good faith in accordance with any advice from such counsel. g. The Securities Intermediary shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Securities Intermediary (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, epidemic, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility); provided that Securities Intermediary shall use commercially reasonable efforts to resume performance as promptly as practicable thereafter. h. The Securities Intermediary shall be entitled to conclusively rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder (subject to Section 13(l) below) without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Securities Intermediary may act in conclusive reliance upon any instrument or signature believed by it to be genuine (subject to Section 13(l) below) and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so. i. The Securities Intermediary shall not be responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any description therein, or for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such document, security or endorsement. The Securities Intermediary shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder. j. The Securities Intermediary shall not be under any duty to give the Collateral held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder. Uninvested funds held hereunder shall not earn or accrue interest. k. When the Securities Intermediary acts on any information, instructions or communications (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by facsimile, email or other form of electronic or data transmission, the Securities Intermediary, absent gross negligence, willful misconduct or bad faith, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of Secured Party or is not in the form Secured Party sent or intended to send (whether due to fraud, distortion or otherwise). The party that sent such communication shall indemnify the Securities Intermediary against any loss, liability, claim or expense (including reasonable and documented legal fees and expenses) it may incur with its acting in accordance with any such communication in accordance with Section 10 of this Agreement. l. The Securities Intermediary shall at all times solely comply with the instructions or entitlement orders of Secured Party. m. The Securities Intermediary does not have any interest in the Collateral deposited hereunder but is serving as securities intermediary and having only possession thereof. Pledgor shall pay or reimburse the Securities Intermediary upon request for any transfer taxes, withholding or other taxes relating to the Collateral incurred in connection herewith and shall indemnify and hold harmless the Securities Intermediary from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Account shall be subject to withholding regulations then in force with respect to United States taxes. Pledgor and Secured Party will provide the Securities Intermediary with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications, to the extent available. It is understood that the Securities Intermediary shall only be responsible for income reporting with respect to income earned on the Collateral and will not be responsible for any other reporting. For all applicable tax reporting and accounting purposes, all dividends, interest, distributions, gains and other income with respect to the Account shall be reported in the name of Pledgor. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Securities Intermediary. n. For purposes of sending and receiving instructions or directions hereunder, all such instructions or directions shall be, and the Securities Intermediary may conclusively rely upon such instructions or directions, delivered and executed by an Authorized Person of Secured Party.
Appears in 1 contract
The Securities Intermediary. a. (a) The duties, responsibilities and obligations of Securities Intermediary shall be limited to those expressly set forth herein, herein and no duties, responsibilities or obligations shall be inferred or implied against the Securities Intermediary. The Securities Intermediary shall not be subject to, nor required to comply with, any other agreement to which the Pledgor or Secured Party is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Pledgor or Secured Party or an entity acting on its behalf. The Securities Intermediary shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder.
b. (b) If at any time the Securities Intermediary is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Collateral (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Collateral), the Securities Intermediary is authorized to, in good faith, to comply therewith in any manner it (in its reasonable determination) or legal counsel of its own choosing reasonably deems appropriate; and if the Securities Intermediary complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, Securities Intermediary shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
c. (c) The Securities Intermediary shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence or willful misconduct on its part. In no event shall the Securities Intermediary be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Pledgor and Secured Party or any entity acting on behalf of the Pledgor or Secured Party, (ii) for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, (iv) for the investment or reinvestment of any cash held by it hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Collateral, or any loss of interest or income incident to any such delays, or (ivv) for an amount in excess of the value of the Collateral, valued as of the date of deposit, but only to the extent of direct money damages.
d. (d) If any fees, expenses or costs incurred by, or any obligations owed to, the Securities Intermediary or its counsel hereunder are not promptly paid when due, the Securities Intermediary (i) may reimburse itself therefor from the Collateral consisting of cash (in an aggregate amount not to exceed $100,000) and (ii) may sell, liquidate, convey or otherwise dispose of any investment in respect of the Collateral with an aggregate value not to exceed $100,000 (less the aggregate amount of cash Collateral applied to reimbursement pursuant to clause (i) above) for such purpose. In addition, the The Securities Intermediary may in its sole discretion withhold from any distribution of any interest earned in respect of the Collateral that would otherwise be released to Pledgor an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Securities Intermediary is entitled to hereunder.
e. (e) As security for the due and punctual performance of any and all of the Pledgor's and Secured Party’s obligations to the Securities Intermediary hereunder, now or hereafter arising, in an aggregate amount not to exceed $100,000, the Pledgor and Secured Party hereby pledges, assigns and grants to the Securities Intermediary a continuing security interest in, and a lien on, the Collateral and all distributions Distributions thereon or additions thereto. The security interest of the Securities Intermediary shall at all times be valid, perfected and enforceable by the Securities Intermediary against the Pledgor and Secured Party and all third parties in accordance with the terms of this Agreement.
f. (f) The Securities Intermediary may consult with legal counsel of its own choosing in good faithchoosing, at the reasonable expense of Pledgorthe Pledgor and Secured Party, as to any matter relating to this Agreement, and the Securities Intermediary shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
g. (g) The Securities Intermediary shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Securities Intermediary (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, epidemic, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility); provided that Securities Intermediary shall use commercially reasonable efforts to resume performance as promptly as practicable thereafter.
h. (h) The Securities Intermediary shall be entitled to conclusively rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder (subject to Section 13(l) below) without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Securities Intermediary may act in conclusive reliance upon any instrument or signature believed by it to be genuine (subject to Section 13(l) below) and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
i. (i) The Securities Intermediary shall not be responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any description therein, or for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such document, security or endorsement. The Securities Intermediary shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
j. (j) The Securities Intermediary shall not be under any duty to give the Collateral held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunderhereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
k. (k) When the Securities Intermediary acts on any information, instructions or communications instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by facsimile, email or other form of electronic or data transmission, the Securities Intermediary, absent gross negligence, willful misconduct or bad faith, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Pledgor or Secured Party or is not in the form the Pledgor and Secured Party sent or intended to send (whether due to fraud, distortion or otherwise). The party that sent such communication Pledgor and Secured Party shall indemnify the Securities Intermediary against any loss, liability, claim or expense (including reasonable and documented legal fees and expenses) it may incur with its acting in accordance with any such communication in accordance with Section 10 of this Agreementcommunication.
l. (l) In the event of any dispute between or conflicting claims among the Pledgor and Secured Party and any other person or entity with respect to any Collateral, the Securities Intermediary shall be entitled, in its sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such Collateral so long as such dispute or conflict shall continue, and the Securities Intermediary shall not be or become liable in any way to the Pledgor and Secured Party for failure or refusal to comply with such conflicting claims, demands or instructions. The Securities Intermediary shall at be entitled to refuse to act until, in its sole discretion, either (i) such conflicting or adverse claims or demands shall have been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Securities Intermediary or (ii) the Securities Intermediary shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all times solely comply losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Securities Intermediary, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Securities Intermediary shall act on such court order and legal opinions without further question. The Securities Intermediary may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed a joint and several obligation of, the instructions or entitlement orders of Pledgor and Secured Party.
m. (m) The Securities Intermediary shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may conclusively rely without any liability upon the contents thereof.
(n) The Securities Intermediary does not have any interest in the Collateral deposited hereunder but is serving as securities intermediary and escrow holder only and having only possession thereof. The Pledgor and Secured Party shall pay or reimburse the Securities Intermediary upon request for any transfer taxes, withholding taxes or other taxes relating to the Collateral incurred in connection herewith and shall indemnify and hold harmless the Securities Intermediary from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the this Escrow Account shall be subject to withholding regulations then in force with respect to United States taxes. The Pledgor and Secured Party will provide the Securities Intermediary with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications, to the extent available. It is understood that the Securities Intermediary shall only be responsible for income reporting with respect to income earned on the Collateral and will not be responsible for any other reporting. For all applicable tax reporting and accounting purposes, all dividends, interest, distributions, gains and other income with respect to the Account shall be reported in the name of Pledgor. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Securities Intermediary.
n. (o) For purposes of sending and receiving instructions or directions hereunder, all such instructions or directions shall be, and the Securities Intermediary may conclusively rely upon such instructions or directions, delivered delivered, and executed by representatives of the Pledgor or Secured designated on Scheduled I attached hereto and made a part hereof (each such representative, an Authorized Person Person) which such designation shall include specimen signatures of Secured Partysuch representatives, as such Schedule 2 may be updated from time to time.
Appears in 1 contract
Sources: Account Control Agreement (Arrow Investments Trust)
The Securities Intermediary. a. The duties, responsibilities and obligations of Securities Intermediary shall be limited to those expressly set forth herein, and no duties, responsibilities or obligations shall be inferred or implied against the Securities Intermediary. The Securities Intermediary shall not be subject to, nor required to comply with, any other agreement to which Pledgor or Secured Party is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from Pledgor or Secured Party or an entity acting on its behalf. The Securities Intermediary shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder.
b. If at any time the Securities Intermediary is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Collateral (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Collateral), the Securities Intermediary is authorized to, in good faith, comply therewith in any manner it (in its reasonable determination) or legal counsel of its own choosing reasonably deems appropriate; and if the Securities Intermediary complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, Securities Intermediary shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
c. The Securities Intermediary shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of negligence or willful misconduct on its part. In no event shall the Securities Intermediary be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Secured Party, (ii) for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, or (iv) for an amount in excess of the value of the Collateral, but only to the extent of direct money damages.
d. If any fees, expenses or costs incurred by, or any obligations owed to, the Securities Intermediary or its counsel hereunder are not promptly paid when due, the Securities Intermediary (i) may reimburse itself therefor from the Collateral consisting of cash (in an aggregate amount not to exceed $100,000) and (ii) may sell, liquidate, convey or otherwise dispose of any investment in respect of the Collateral with an aggregate value not to exceed $100,000 (less the aggregate amount of cash Collateral applied to reimbursement pursuant to clause (i) above) for such purpose. In addition, the Securities Intermediary may in its sole discretion withhold from any distribution of Collateral that would otherwise be released to Pledgor an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Securities Intermediary is entitled to hereunder.
e. As security for the due and punctual performance of any and all of Pledgor’s obligations to the Securities Intermediary hereunder, now or hereafter arising, in an aggregate amount not to exceed $100,000, Pledgor hereby pledges, assigns and grants to the Securities Intermediary a continuing security interest in, and a lien on, the Collateral and all distributions thereon or additions thereto. The security interest of the Securities Intermediary shall at all times be valid, perfected and enforceable by the Securities Intermediary against Pledgor and all third parties in accordance with the terms of this Agreement.
f. The Securities Intermediary may consult with legal counsel of its own choosing in good faithchoosing, at the reasonable expense of Pledgor, as to any matter relating to this Agreement, and the Securities Intermediary shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
g. The Securities Intermediary shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Securities Intermediary (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, epidemic, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility); provided that the Securities Intermediary shall use commercially reasonable efforts to resume performance as promptly as practicable thereafter.
h. The Securities Intermediary shall be entitled to conclusively rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder (subject to Section 13(l) 13.l below) without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Securities Intermediary may act in conclusive reliance upon any instrument or signature believed by it to be genuine (subject to Section 13(l) 13.l below) and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
i. The Securities Intermediary shall not be responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any description therein, or for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such document, security or endorsement. The Securities Intermediary shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
j. The Securities Intermediary shall not be under any duty to give the Collateral held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunder. Uninvested funds held hereunder shall not earn or accrue interest.
k. When the Securities Intermediary acts on any information, instructions or communications (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by facsimile, email or other form of electronic or data transmission, the Securities Intermediary, absent gross negligence, willful misconduct negligence or bad faith, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Secured Party or is not in the form the Secured Party sent or intended to send (whether due to fraud, distortion or otherwise). The party that sent such communication shall indemnify the Securities Intermediary against any loss, liability, claim or expense (including reasonable and documented legal fees and expenses) it may incur with its acting in accordance with any such communication in accordance with Section 10 of this Agreementcommunication.
l. The Securities Intermediary shall at all times solely comply with the instructions or entitlement orders of Secured Party.
m. The Securities Intermediary does not have any interest in or beneficial ownership of the Collateral deposited hereunder but is serving as securities intermediary and having only possession thereof. Pledgor shall pay or reimburse the Securities Intermediary upon request for any transfer taxes, withholding or other taxes relating to the Collateral incurred in connection herewith and shall indemnify and hold harmless the Securities Intermediary from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Account shall be subject to withholding regulations then in force with respect to United States taxes. Pledgor and Secured Party will provide the Securities Intermediary with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications, to the extent available. It is understood that the Securities Intermediary shall only be responsible for income reporting with respect to income earned on the Collateral and will not be responsible for any other reporting. For all applicable tax reporting and accounting purposes, all dividends, interest, distributions, gains and other income with respect to the Account shall be reported in the name of Pledgor. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Securities Intermediary.
n. For purposes of sending and receiving instructions or directions hereunder, all such instructions or directions shall be, and the Securities Intermediary may conclusively rely upon such instructions or directions, delivered and executed by an Authorized Person of Pledgor or Secured Party.
Appears in 1 contract
The Securities Intermediary. a. (a) The dutiesSecurities Intermediary hereunder, responsibilities which Securities Intermediary initially shall be Computershare, shall be a depository institution or trust company organized under the laws of the United States or any State (or any domestic branch of a foreign bank) that is approved by the Administrative Agent. The Securities Intermediary has established the Accounts at the Account Bank. The Account Bank, which initially shall be W▇▇▇▇ Fargo Bank, National Association, shall be a Qualified Institution. The Borrower hereby appoints Computershare as the initial Securities Intermediary and obligations hereby approves W▇▇▇▇ Fargo Bank, National Association as the initial Account Bank. All payments of amounts due and payable in respect of the Aggregate Unpaids that are to be made from amounts withdrawn from the Collection Account or the Reserve Account shall be made on behalf of the Borrower by the Securities Intermediary in accordance with Section 2.08.
(b) The Securities Intermediary shall be limited compensated for its activities hereunder by receiving the Securities Intermediary Fee. The Securities Intermediary Fee shall be payable in accordance with the priorities specified in Section 2.08 or, at the option of the Servicer, may be paid directly to those expressly set forth hereinthe Securities Intermediary by the Servicer. The Borrower shall indemnify the Securities Intermediary and its officers, directors, employees and agents for, and no hold them harmless against, any fees, costs, damages, claims, loss, liability or expense (including reasonable attorneys’ fees and expenses and court costs) incurred, other than in connection with the willful misconduct, gross negligence or bad faith on the part of the Securities Intermediary (as determined by a court of competent jurisdiction), arising out of or in connection with (i) the performance of its obligations under and in accordance with this Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under this Agreement and (ii) the gross negligence, willful misconduct or bad faith of the Borrower in the performance of its duties hereunder. All such amounts shall be payable in accordance with Section 2.08. The provisions of this Section shall survive the termination or assignment of this Agreement and the resignation or removal of the Securities Intermediary. For the avoidance of doubt, such indemnified amounts shall include any expense and costs, including reasonable attorneys’ fees and expenses and court costs, incurred in connection with any enforcement (including any dispute, action, claim or suit) brought by the Securities Intermediary of any indemnification or other obligation of the Borrower or other Person. THE FOREGOING INDEMNIFICATION SHALL APPLY WHETHER OR NOT SUCH LIABILITIES AND COSTS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY.
(c) The Securities Intermediary shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by the Securities Intermediary in such capacity herein and under the Account Control Agreement. No implied duties (including fiduciary duties), responsibilities covenants or obligations shall be inferred or implied read into this Agreement against the Securities Intermediary and, in the absence of bad faith on the part of the Securities Intermediary, the Securities Intermediary may conclusively rely on the truth of the statements and the correctness of the opinions expressed in any certificates or opinions furnished to the Securities Intermediary pursuant to and conforming to the requirements of this Agreement.
(d) The Securities Intermediary shall not be liable for:
(i) an error of judgment made in good faith by one of its officers; or
(ii) any action taken, suffered or omitted to be taken in good faith in accordance with or believed by it to be authorized or within the discretion or rights or powers conferred, by this Agreement or at the direction of a Secured Party relating to the exercise of any power conferred upon the Securities Intermediary under this Agreement in each case unless it shall be proved that the Securities Intermediary shall have been grossly negligent in ascertaining the pertinent facts.
(e) The Securities Intermediary shall not be charged with knowledge of any event or information, including any Event of Default, Unmatured Event of Default or Facility Amortization Event, or be required to act (including the sending of any notice) upon any such event or information, including any Event of Default, Unmatured Event of Default or Facility Amortization Event, unless a Responsible Officer of the Securities Intermediary has actual knowledge of such event or receives written notice of such event from the Borrower, the Servicer or any Secured Party, and shall have no duty to take action to determine whether any such event, default or Event of Default shall have occurred. The Securities Intermediary shall have no obligation whatsoever either prior to or after receiving any such written notice to investigate or verify that such event has in fact occurred and shall be entitled to rely conclusively, and shall be fully protected in so relying, on any such notice so furnished to it. The Securities Intermediary shall not be subject todeemed to have knowledge of any event or information held by or imputed to any Person (including an Affiliate, nor required or other line of business or division of the Securities Intermediary) other than itself in its capacity as Securities Intermediary.
(f) Without limiting the generality of this Section, the Securities Intermediary shall have no duty (i) to comply withsee to any recording, filing or depositing of this Agreement or any other agreement referred to which Pledgor herein or Secured Party is any financing statement or continuation statement evidencing a party, even though reference thereto may be made hereinsecurity interest in the Collateral, or to comply see to the maintenance of any such recording or filing or depositing or to any recording, refiling or redepositing of any thereof, (ii) to see to the payment or discharge of any Tax or any Lien of any kind owing with respect to, assessed or levied against, any direction part of the Contracts, (iii) to confirm or instruction verify the contents of any reports or certificates of the Servicer (other than those contained herein or delivered in its capacity as Backup Servicer in accordance with its express duties as such undertaken herein) or the Borrower delivered to the Securities Intermediary pursuant to this Agreement believed by the Securities Intermediary to be genuine and to have been signed or presented by the proper party or parties or (iv) to ascertain or inquire as to the performance or observance of any of the Borrower’s or the Servicer’s representations, warranties or covenants or the Servicer’s duties and obligations as Servicer and as custodian of books, records, files and computer records relating to the Contracts under this Agreement.
(g) from Pledgor or Secured Party or an entity acting on its behalf. The Securities Intermediary shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, liability in the performance of any of its duties hereunder.
b. If at , or in the exercise of any time of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or indemnity satisfactory to it against such risk or liability shall not be reasonably assured to it. None of the provisions contained in this Agreement shall in any event require the Securities Intermediary is served with to perform, or be responsible for the manner of performance of, any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Collateral (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Collateral)obligations or the acts or omissions of the Borrower, Servicer or any other party under this Agreement, and the Securities Intermediary is authorized to, in good faith, comply therewith in any manner it (in its reasonable determination) may assume performance of such parties absent written notice or legal counsel actual knowledge of its own choosing reasonably deems appropriate; and if a Responsible Officer of the Securities Intermediary complies with to the contrary.
(h) The Securities Intermediary may conclusively rely and shall be protected in acting or refraining from acting upon any such judicial resolution, Officer’s Certificate, Monthly Report, certificate of auditors or administrative any other certificate, statement, instrument, opinion, report, notice, request, consent, order, judgmentappraisal, decree, writ bond or other form paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties, not only as to due execution, validity and effectiveness, but also as to the truth and accuracy of judicial or administrative process, any information contained therein. The Securities Intermediary shall not be liable responsible for the content or accuracy of any such documents provided to the Securities Intermediary, and shall not, except as otherwise expressly required herein, be required to recalculate, certify or verify any information contained therein.
(i) The Securities Intermediary may, at the expense of the Borrower, consult with counsel of its choice with regard to legal questions arising out of or in connection with this Agreement and the written advice or opinion of such counsel (which writings may, for the avoidance of doubt, be subject to applicable attorney-client privilege) shall be full and complete authorization and protection in respect of any action taken, omitted or suffered by the Securities Intermediary in good faith in accordance therewith.
(j) The Securities Intermediary shall be under no obligation to exercise any of the parties hereto rights, powers or remedies vested in it by this Agreement or to institute, conduct or defend any litigation under this Agreement or in relation to this Agreement, at the request, order or direction of the Administrative Agent pursuant to the provisions of this Agreement, unless the Administrative Agent, on behalf of the Secured Parties, or any other person party hereto shall have offered to the Securities Intermediary security or entity even though such indemnity reasonably satisfactory to it against the costs, expenses and liabilities that may be incurred therein or thereby. The Securities Intermediary shall have no liability for any action or inaction taken at the direction of the Borrower, the Servicer or the Administrative Agent in accordance with this Agreement.
(k) The Securities Intermediary shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, judgmentapproval, decreebond or other paper or document, writ unless requested in writing so to do by a Secured Party; provided, that if the payment within a reasonable time to the Securities Intermediary of the costs, expenses or process liabilities likely to be incurred by it in the making of such investigation shall be, in the opinion of the Securities Intermediary, not reasonably assured by the Borrower, the Securities Intermediary may require indemnity reasonably satisfactory to it against such cost, expense or liability as a condition to so proceeding. The reasonable expense of every such examination shall be subsequently modified or vacated or otherwise determined paid by the Borrower or, if paid by the Securities Intermediary, shall be reimbursed by the Borrower pursuant to have been without legal force or effectSection 2.08.
c. (l) The Securities Intermediary may execute any of the trusts or powers hereunder or perform any duties under this Agreement either directly or by or through Affiliates, agents or attorneys or custodians. The Securities Intermediary shall not be responsible for, or have any duty to supervise or monitor, any misconduct or negligence of any such agent, attorney or custodian appointed with due care by it hereunder.
(m) If the Securities Intermediary shall request instructions from the Administrative Agent or the Servicer with respect to any act, action or failure to act in connection with and as set forth in this Agreement, the Securities Intermediary shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Securities Intermediary shall have received written instructions from the Administrative Agent or the Servicer, as applicable, without incurring any liability therefor to the Administrative Agent, the Borrower, the Servicer or any other person.
(n) The Securities Intermediary may act in reliance upon any written communication of the Administrative Agent concerning the delivery of Collateral pursuant to this Agreement. The Securities Intermediary does not assume and shall have no responsibility for, and makes no representation as to, monitoring the value of the Contracts and other Collateral. The Securities Intermediary shall not be liable for any action taken or omitted omission to act hereunder, except for its own gross negligence, bad faith or for willful misconduct. THE FOREGOING PARAGRAPH SHALL APPLY WHETHER OR NOT SUCH LIABILITIES ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER ANY CLAIM OR THEORY OF STRICT LIABILITY, OR ARE CAUSED, IN WHOLE OR IN PART, BY ANY NEGLIGENT ACT OR OMISSION OF ANY KIND BY THE SECURITIES INTERMEDIARY.
(o) If the Securities Intermediary shall at any loss time receive conflicting instructions from the Administrative Agent and the Servicer or injury resulting from its actions or its performance or lack any other party to this Agreement and the conflict between such instructions cannot be resolved by reference to the terms of performance this Agreement, the Securities Intermediary shall be entitled to rely on the instructions of its duties hereunder in the Administrative Agent. In the absence of bad faith, gross negligence or willful misconduct on its part. In no event shall the part of the Securities Intermediary be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from Secured Party, (ii) for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodians, or (iv) for an amount in excess of the value of the Collateral, but only to the extent of direct money damages.
d. If any fees, expenses or costs incurred by, or any obligations owed to, the Securities Intermediary or its counsel hereunder are not promptly paid when due, the Securities Intermediary (i) may reimburse itself therefor from the Collateral consisting of cash (in an aggregate amount not to exceed $100,000) and (ii) may sell, liquidate, convey or otherwise dispose of any investment in respect of the Collateral with an aggregate value not to exceed $100,000 (less the aggregate amount of cash Collateral applied to reimbursement pursuant to clause (i) above) for such purpose. In additionIntermediary, the Securities Intermediary may conclusively rely and shall be protected in its sole discretion withhold acting or refraining from acting upon any distribution resolution, Officer’s Certificate, Monthly Report, certificate of Collateral that would otherwise auditors, or any other certificate, statement, instrument, opinion, report, notice request, consent, order, appraisal, bond or other paper or document believed by it to be released genuine and to Pledgor an amount it believes would, upon sale have been signed or liquidation, produce proceeds equal to any unpaid amounts to which the Securities Intermediary is entitled to hereunder.
e. As security for the due and punctual performance of any and all of Pledgor’s obligations to the Securities Intermediary hereunder, now or hereafter arising, in an aggregate amount not to exceed $100,000, Pledgor hereby pledges, assigns and grants to the Securities Intermediary a continuing security interest in, and a lien on, the Collateral and all distributions thereon or additions thereto. The security interest of the Securities Intermediary shall at all times be valid, perfected and enforceable presented by the Securities Intermediary against Pledgor and all third parties in accordance with the terms of this Agreement.
f. proper party or parties. The Securities Intermediary may consult with legal counsel conclusively rely upon the validity of its own choosing in good faithdocuments delivered to it, at the reasonable expense of Pledgor, without investigation as to any matter relating to this Agreementtheir authenticity or legal effectiveness, and the Securities Intermediary shall not incur be liable to the Servicer or any liability other party to this Agreement in acting in good faith in accordance with any advice from such counsel.
g. The Securities Intermediary shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason respect of any occurrence beyond the control of claims that may arise or be asserted against the Securities Intermediary (including but not limited to any act or provision because of the invalidity of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, epidemic, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility); provided that Securities Intermediary shall use commercially reasonable efforts to resume performance as promptly as practicable thereafter.
h. The Securities Intermediary shall be entitled to conclusively rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder (subject to Section 13(l) below) without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Securities Intermediary may act in conclusive reliance upon any instrument or signature believed by it to be genuine (subject to Section 13(l) below) and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
i. The Securities Intermediary shall not be responsible in any respect for the form, execution, validity, value or genuineness of such documents or securities deposited hereunder, or for any description therein, or for the identity, authority or rights of persons executing or delivering or purporting their failure to execute or deliver any such document, security or endorsementfulfill their intended purpose. The Securities Intermediary shall not be called upon bound to advise any party ascertain or inquire as to the wisdom in selling performance or retaining observance of any of the terms of this Agreement or taking any other agreement on the part of any party, and may assume performance of such parties absent written notice or refraining from any action with respect actual knowledge of a Responsible Officer of the Securities Intermediary to any securities or other property deposited hereunderthe contrary.
j. (p) The Securities Intermediary is authorized, in its sole discretion, to disregard any and all notices or instructions given by any other party hereto or by any other Person other than any such notices or instructions as are expressly provided for in this Agreement or the Account Control Agreement and orders or process of any court entered or issued with or without jurisdiction. If any property subject hereto is at any time attached, garnished or levied upon under any court order or in case the payment, assignment, transfer, conveyance or delivery of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered by any court affecting such property or any part hereof, then and in any of such events the Securities Intermediary is authorized, in its sole discretion, to rely upon and comply with any such order, writ, judgment or decree with which it is advised by legal counsel of its own choosing is binding upon it, and if it complies with any such order, writ, judgment or decree it shall not be under liable to any duty other party hereto or to give the Collateral held any other Person by it hereunder any greater degree reason of care than it gives its own similar property and shall not be required to invest any funds held hereunder. Uninvested funds held hereunder shall not earn such compliance even though such order, writ, judgment or accrue interestdecree maybe subsequently reversed, modified, annulled, set aside or vacated.
k. When (q) Any Person into which the Securities Intermediary acts on any information, instructions may be merged or communications (including, but not limited to, communications converted or with respect to the delivery of securities or the wire transfer of funds) sent by facsimile, email or other form of electronic or data transmission, the Securities Intermediary, absent gross negligence, willful misconduct or bad faith, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of Secured Party or is not in the form Secured Party sent or intended to send (whether due to fraud, distortion or otherwise). The party that sent such communication shall indemnify the Securities Intermediary against any loss, liability, claim or expense (including reasonable and documented legal fees and expenses) which it may incur with its acting in accordance with be consolidated, or any such communication in accordance with Section 10 of this Agreement.
l. The Securities Intermediary shall at all times solely comply with the instructions or entitlement orders of Secured Party.
m. The Securities Intermediary does not have any interest in the Collateral deposited hereunder but is serving as securities intermediary and having only possession thereof. Pledgor shall pay or reimburse the Securities Intermediary upon request for any transfer taxes, withholding or other taxes relating to the Collateral incurred in connection herewith and shall indemnify and hold harmless the Securities Intermediary Person resulting from any amounts that it is obligated merger, conversion or consolidation to pay in the way of such taxes. Any payments of income from the Account shall be subject to withholding regulations then in force with respect to United States taxes. Pledgor and Secured Party will provide the Securities Intermediary with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications, to the extent available. It is understood that which the Securities Intermediary shall only be responsible for income reporting with respect a party, or any Person succeeding to income earned on the Collateral and will not be responsible for any other reporting. For all applicable tax reporting and accounting purposes, or substantially all dividends, interest, distributions, gains and other income with respect to the Account shall be reported in the name of Pledgor. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Securities Intermediary.
n. For purposes ’s corporate trust services business, provided that such Person is a depository institution or trust company organized under the laws of sending and receiving instructions the United States or directions hereunderany State (or any domestic branch of a foreign bank) that is approved by each of the Administrative Agent, all such instructions or directions shall be, the Servicer and the Securities Intermediary may conclusively rely upon such instructions or directions, delivered and executed by an Authorized Person of Secured Party.Borrower shall
Appears in 1 contract
The Securities Intermediary. a. The duties, responsibilities and obligations of Securities Intermediary shall be limited to those expressly set forth herein, herein and no duties, responsibilities or obligations shall be inferred or implied against the Securities Intermediary. The Securities Intermediary shall not be subject to, nor required to comply with, any other agreement to which the Pledgor or Secured Party is a party, even though reference thereto may be made herein, or to comply with any direction or instruction (other than those contained herein or delivered in accordance with this Agreement) from the Pledgor or Secured Party or an entity acting on its behalf. The Securities Intermediary shall not be required to expend or risk any of its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder.
b. If at any time the Securities Intermediary is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects the Collateral (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of the Collateral), the Securities Intermediary is authorized to, in good faith, to comply therewith in any manner it (in its reasonable determination) or legal counsel of its own choosing reasonably deems appropriate; and if the Securities Intermediary complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, Securities Intermediary shall not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
c. The Securities Intermediary shall not be liable for any action taken or omitted or for any loss or injury resulting from its actions or its performance or lack of performance of its duties hereunder in the absence of gross negligence or willful misconduct on its part. In no event shall the Securities Intermediary be liable (i) for acting in accordance with or conclusively relying upon any instruction, notice, demand, certificate or document from the Pledgor and Secured PartyParty or any entity acting on behalf of the Pledgor or Secured Party delivered in accordance with the terms of this Agreement, (ii) for any indirect, consequential, punitive or special damages, regardless of the form of action and whether or not any such damages were foreseeable or contemplated, (iii) for the acts or omissions of its nominees, correspondents, designees, agents, subagents or subcustodianssubcustodians selected by it with reasonable care, (iv) for the investment or reinvestment of any cash held by it hereunder, in each case in good faith, in accordance with the terms hereof, including without limitation any liability for any delays (not resulting from its gross negligence or willful misconduct) in the investment or reinvestment of the Collateral, or any loss of interest or income incident to any such delays, or (ivv) for an amount in excess of the value of the Collateral, valued as of the date of deposit, but only to the extent of direct money damages.
d. If After the expiry of the Security Period, if any fees, expenses or costs incurred by, or any obligations owed to, the Securities Intermediary or its counsel by the Pledgor hereunder are not promptly paid when duewithin 30 days after being due (such 30-day period, the “Grace Period”), the Securities Intermediary (i) may reimburse itself therefor from the Collateral consisting of cash (in an aggregate amount not to exceed $100,000) and (ii) may sell, liquidate, convey or otherwise dispose of any investment in respect of the Collateral with an aggregate value for such purpose provided that the Pledgor does not to exceed $100,000 (less 1) notify the aggregate Securities Intermediary within the Grace Period (“Dispute Notice”) of any dispute of the amount of such sums payable and (2) initiate a proceeding in relation to such dispute under Section 26 below (“Dispute Proceeding”) within 60 days of issuance of the Dispute Notice. If the Dispute Proceeding has been initiated by the Pledgor after the expiry of the Security Period, the Pledgor may request for the withdrawal of the securities and investment property in the Account to be replaced with cash Collateral applied deposited in the Account to reimbursement pursuant to clause (i) above) for cover the amounts of such purposesums disputed and the Securities Intermediary shall transfer the securities and investment property in the Account as requested by the Pledgor promptly after such amount is deposited by the Pledgor into the Account. In additionAfter the expiry of the Security Period, the Securities Intermediary may in its sole discretion withhold from any distribution of any interest earned in respect of the Collateral that would otherwise be released to Pledgor an amount it believes would, upon sale or liquidation, produce proceeds equal to any unpaid amounts to which the Securities Intermediary is entitled to hereunder.
e. As After the expiry of the Security Period, as security for the due and punctual performance of any and all of the Pledgor’s 's obligations to the Securities Intermediary hereunder, now or hereafter arising, in an aggregate amount not the Pledgor agrees to exceed $100,000pledge, Pledgor hereby pledges, assigns assign and grants grant to the Securities Intermediary a continuing security interest in, and a lien on, the Collateral and all distributions thereon or additions thereto. The security interest of the Securities Intermediary shall at all times after the expiry of the Security Period be valid, perfected and enforceable by the Securities Intermediary against the Pledgor and all third parties in accordance with the terms of this Agreement.
f. The Securities Intermediary may consult with legal counsel of its own choosing in good faithchoosing, at the reasonable expense of Pledgorthe Pledgor and Secured Party, as to any matter relating to this Agreement, and the Securities Intermediary shall not incur any liability in acting in good faith in accordance with any advice from such counsel.
g. The Securities Intermediary shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Securities Intermediary (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, epidemic, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility); provided that Securities Intermediary shall use commercially reasonable efforts to resume performance as promptly as practicable thereafter.
h. The Securities Intermediary shall be entitled to conclusively rely upon any order, judgment, certification, demand, notice, instrument or other writing delivered to it hereunder (subject believed by it in good faith to Section 13(l) below) be genuine without being required to determine the authenticity or the correctness of any fact stated therein or the propriety or validity or the service thereof. The Securities Intermediary may act in conclusive reliance upon any instrument or signature believed by it to be genuine (subject to Section 13(l) below) and may assume that any person purporting to give receipt or advice to make any statement or execute any document in connection with the provisions hereof has been duly authorized to do so.
i. The Securities Intermediary shall not be responsible in any respect for the form, execution, validity, value or genuineness of documents or securities deposited hereunder, or for any description therein, or for the identity, authority or rights of persons executing or delivering or purporting to execute or deliver any such document, security or endorsement. The Securities Intermediary shall not be called upon to advise any party as to the wisdom in selling or retaining or taking or refraining from any action with respect to any securities or other property deposited hereunder.
j. The Securities Intermediary shall not be under any duty to give the Collateral held by it hereunder any greater degree of care than it gives its own similar property and shall not be required to invest any funds held hereunderhereunder except as directed in this Agreement. Uninvested funds held hereunder shall not earn or accrue interest.
k. When the Securities Intermediary acts on any information, instructions or communications instructions, communications, (including, but not limited to, communications with respect to the delivery of securities or the wire transfer of funds) sent by facsimile, email or other form of electronic or data transmission, the Securities Intermediary, absent gross negligence, negligence or willful misconduct or bad faithmisconduct, shall not be responsible or liable in the event such communication is not an authorized or authentic communication of the Pledgor or Secured Party or is not in the form the Pledgor and Secured Party sent or intended to send (whether due to fraud, distortion or otherwise). The party that sent such communication Pledgor and Secured Party shall indemnify the Securities Intermediary against any loss, liability, claim or expense (including reasonable and documented legal fees and expenses) it may incur with its acting in accordance with any such communication in accordance with Section 10 of this Agreementcommunication.
l. In the event of any dispute between or conflicting claims among the Pledgor and Secured Party and any other person or entity with respect to any Collateral, the Securities Intermediary shall be entitled, in its sole discretion, to refuse to comply with any and all claims, demands or instructions with respect to such Collateral so long as such dispute or conflict shall continue, and the Securities Intermediary shall not be or become liable in any way to the Pledgor and Secured Party for failure or refusal to comply with such conflicting claims, demands or instructions. The Securities Intermediary shall at be entitled to refuse to act until, in its sole discretion, either (i) such conflicting or adverse claims or demands shall have been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Securities Intermediary or (ii) the Securities Intermediary shall have received security or an indemnity satisfactory to it sufficient to hold it harmless from and against any and all times solely comply losses which it may incur by reason of so acting. Any court order, judgment or decree shall be accompanied by a legal opinion by counsel for the presenting party, satisfactory to the Securities Intermediary, to the effect that said order, judgment or decree represents a final adjudication of the rights of the parties by a court of competent jurisdiction, and that the time for appeal from such order, judgment or decree has expired without an appeal having been filed with such court. The Securities Intermediary shall act on such court order and legal opinions without further question. The Securities Intermediary may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall be paid by, and shall be deemed sole obligations of, the instructions Pledgor. Notwithstanding anything to the contrary in this Agreement, in the event of any dispute between or entitlement orders conflicting claims between the Pledgor and Secured Party with respect to any Collateral during the Security Period, the Securities Intermediary shall act on the Written Instruction signed by an Authorized Person of the Secured Party.
m. The Securities Intermediary shall have no responsibility for the contents of any writing of the arbitrators or any third party contemplated herein as a means to resolve disputes and may conclusively rely without any liability upon the contents thereof.
n. The Securities Intermediary does not have any interest in the Collateral deposited hereunder but is serving as securities intermediary only and having only possession thereof. The Pledgor shall pay or reimburse the Securities Intermediary upon request for any transfer taxes, withholding taxes or other taxes relating to the Collateral incurred in connection herewith and shall indemnify and hold harmless the Securities Intermediary from any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the Account shall be subject to withholding regulations then in force with respect to United States taxes. The Pledgor and Secured Party will provide the Securities Intermediary with appropriate W-9 forms for tax identification number certifications, or W-8 forms for non-resident alien certifications, to the extent available. It is understood that the Securities Intermediary shall only be responsible for income reporting with respect to income earned on the Collateral and will not be responsible for any other reporting. For all applicable tax reporting and accounting purposes, all dividends, interest, distributions, gains and other income with respect to the Account shall be reported in the name of Pledgor. This paragraph shall survive notwithstanding any termination of this Agreement or the resignation or removal of the Securities Intermediary.
n. o. For purposes of sending and receiving instructions or directions hereunder, all such instructions or directions shall be, and the Securities Intermediary may conclusively rely upon such instructions or directions, delivered delivered, and executed by representatives of the Pledgor or Secured designated on Schedule 2 attached hereto and made a part hereof (each such representative, an Authorized Person Person) which such designation shall include specimen signatures of Secured Partysuch representatives, as such Schedule 2 may be updated from time to time.
p. Notwithstanding any provision to the contrary in this Agreement, the Securities Intermediary shall not, during the Security Period, claim or exercise any security interest, set-off, counter-claim or other right in respect of the Collateral or the Account. The Securities Intermediary shall be entitled to claim or exercise any security interest, set-off, counter-claim or other right in respect of the Collateral and the Account after the expiry of the Security Period.
Appears in 1 contract
Sources: Account Control Agreement (Kaisa Group Holdings Ltd.)