Concerning the Custodian. 11.1 The Custodian shall not be required to take any legal action upon the Company’s behalf or otherwise to protect or otherwise in respect of Investments or Cash unless the Custodian so agrees and unless the Custodian is first fully indemnified in a form satisfactory to it by the Company. 11.2 Where the Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect. 11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement which, in the opinion of the Custodian may make it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action. 11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent. 11.5 The Company is hereby notified that the Custodian has delegated certain of the services to be provided by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation. 11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account. 11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, the Custodian may without notice set-off any sum due to it from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian. 11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agent.
Appears in 2 contracts
Sources: Custodian Agreement (Pine Grove Alternative Institutional Fund), Custodian Agreement (Pine Grove Alternative Fund)
Concerning the Custodian. 11.1 The Custodian shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties. Until modified in writing, such compensation shall be as set forth in Exhibit A attached hereto. The Custodian shall not be required liable for any action taken in good faith upon any certificate herein described or certified copy of any resolution of the Fund's Board of Directors, and may rely on the genuineness of any such document which it may in good faith believe to take any legal action upon the Company’s behalf or otherwise have been validly executed. The Fund agrees to protect or otherwise in respect of Investments or Cash unless indemnify and hold harmless the Custodian so agrees and unless the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider its nominee from all taxes, charges, expenses, assessments, claims and liabilities (including reasonable counsel fees) incurred or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement which, in the opinion of the Custodian may make assessed against it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability by its nominee in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services to be provided by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, except such as may arise from its or its nominee's own negligent action, negligent failure to act, bad faith or willful misconduct. The Custodian is authorized to charge any account of the Custodian may without notice set-off Fund for such items. In the event of any sum due to it from the Company against advance of cash for any Cash or Investments held purpose made by the Custodian and shall have the power to pay out resulting from orders or instructions of the assets of Fund, or in the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and event that the Custodian shall have the right to retain all Investments held by it or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents 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 nominee's own negligent action, negligent failure to act or willful misconduct, any property at any time held for or on behalf the account of the Company Fund shall be security therefore. The Custodian agrees to indemnify and hold harmless the Fund from all charges, expenses, assessments, and claims/liabilities (including reasonable counsel fees) incurred or otherwise pursuant assessed against it in connection with the performance of this Agreement, except such as may arise from the Fund's own negligent action, negligent failure to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agentact, or willful misconduct.
Appears in 2 contracts
Sources: Custodian Agreement (Security Capital Employee Reit Fund Inc), Custodian Agreement (Security Capital U S Real Estate Shares Inc)
Concerning the Custodian. 11.1 (a) The acceptance by the Custodian of its appointment hereunder is expressly subject to the following terms, which shall govern and apply to each of the terms and provisions of this Section 14 (whether or not so stated therein or herein):
(i) The Custodian shall have no duties, obligations or responsibilities under this Section 14 or with respect to the Required Loan Documents except for such duties, obligations or responsibilities as are expressly and specifically set forth in this Section 14 as duties obligations or responsibilities on its part to be performed, and the duties obligations and responsibilities of the Custodian shall be determined solely by the express provisions of this Section 14. No implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Custodian. Any permissive right of the Custodian to take any action hereunder shall not be construed as a duty.
(ii) The Custodian makes no representations as to and shall not be responsible for or required to verify (x) the validity, legality, enforceability, due authorization, effectiveness, recordability, insurability, sufficiency, value, form, substance, or genuineness of any of the documents contained in any Required Loan Document or (y) the collectability, validity, transferability, insurability, value, effectiveness, perfection, priority or suitability of any Required Loan Document or any document contained therein.
(iii) The Custodian shall have no responsibilities or duties with respect to any Required Loan Document while such Required Loan Document is not in its possession.
(iv) The Custodian may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, statement, certificate, request, waiver, consent, opinion, report, receipt or other paper or document furnished to it in accordance with this Section 14, not only as to its due execution and validity, but also as to the truth and accuracy of any information therein contained, which it in good faith believes to be genuine and signed or presented by the proper person (which in the case of any instruction from or on behalf of the Borrower shall be an Authorized Person). The Custodian shall be entitled to reasonably presume the genuineness and due authority of any signature appearing thereon. The Custodian shall not be required bound to take make any legal action upon independent investigation into the Company’s behalf facts or otherwise to protect matters stated in any such notice, instruction, statement, certificate, request, waiver, consent, opinion, report, receipt or otherwise in respect other paper or document, provided, however, that if the form thereof is specifically prescribed by the terms of Investments or Cash unless this Section 14, the Custodian so agrees and unless shall examine the same to determine whether it substantially conforms on its face to the requirements set forth herein.
(v) Neither the Custodian is first fully indemnified nor any of its directors, officers or employees shall be liable to anyone for any error of judgment, or for any act done or step taken or omitted to be taken by it (or any of its directors, officers of employees), or for any mistake of fact or law, or for anything which it may do or refrain from doing in a form satisfactory to it by connection herewith, unless such action constitutes gross negligence or willful misconduct of the CompanyCustodian.
11.2 Where the (vi) The Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall not be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement which, in the opinion of the Custodian may make it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will it in good faith and reasonably believed by it to be covered within powers conferred upon it, or taken by the indemnity provided it pursuant to Clause 17.1. In additionany direction or instruction received by it in accordance with this Section 14, or omitted to be taken by it by reason of the Custodian may, in its sole discretion, require further indemnification lack of direction or other assurance as a prerequisite to taking instruction required hereby for such action.
11.4 In (vii) The Custodian may consult with, and obtain advice from, legal counsel selected in good faith, with respect to any question as to any of the provisions hereof or its duties hereunder, or any matter relating hereto, and the opinion or advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered, or omitted by the Custodian in good faith in accordance with the advice or opinion of such counsel. The reasonable costs and expenses of such advice or opinion shall be reimbursed by the Borrower pursuant to Section 12 hereof.
(viii) No provision of this Agreement shall require the Custodian to expend or risk its own funds, take any action hereunder (or omit to take any action) or otherwise incur any financial liability in the performance of any services its duties under this Section 14 if it shall have grounds for believing that repayment of such funds or indemnity satisfactory is not assured to it.
(ix) The Custodian may act or exercise its duties or powers hereunder through agents or attorneys, and the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable or responsible for the acts actions or omissions of any such agent selected or attorney appointed and maintained with due care.
(x) If the Custodian shall request instructions from the Borrower with respect to any act, action or failure to act in connection with this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Borrower without incurring any liability therefor to the Borrower, or any other Person.
(xi) In no event shall the Custodian or its directors, affiliates, officers, agents and employees be held liable for any lost profits or exemplary, punitive, special, indirect or consequential damages of any kind resulting from any action taken or omitted to be taken by it with reasonable care or for them hereunder or in connection herewith even if advised of the solvency possibility of such damages.
(xii) The Custodian shall not be deemed to have notice of any such agent.
11.5 The Company is hereby notified that fact, claim or demand with respect hereto unless a Responsible Officer of the Custodian has delegated certain actual knowledge thereof or written notice thereof. Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of and shall not be bound by any of the services terms and conditions of any other document or agreement unless the Custodian is a signatory party to be provided by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegationthat document or agreement.
11.6 In order (xiii) Nothing in this Section 14 shall be deemed to secure all and any obligations of the Company to the Custodian, the Company hereby grants to impose on the Custodian a continuing lien and security interest over all Cash and Investments any duty to qualify to do business in any jurisdiction, other than (x) any jurisdiction where any Required Loan Document is or may be held by the Custodian from time to time held in hereunder, and (y) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Deposit Account and Custodian or its property or business or on the Securities Accountability of the Custodian to perform its duties hereunder.
11.7 Notwithstanding that (xiv) The Custodian shall have only the duties and responsibilities with respect to the matters set forth herein as is expressly set forth in writing herein and shall not be deemed to be an agent, bailee or fiduciary for any party hereto. The Custodian holds shall be fully protected in acting or refraining from acting in good faith without investigation on any notice, instruction or request purportedly furnished to it by the Cash and Investments in trust for the Company Borrower in accordance with the terms of this Agreementhereof, in which case the Custodian may without notice set-off any sum due to it from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and parties hereto agree that the Custodian has no duty to make any further inquiry whatsoever. It is hereby acknowledged and agreed that the Custodian has no knowledge of (and is not required to know) the terms and provisions of any loan agreements or any other related documentation to which the Lender may be a party or whether any actions by the, the Borrower or any other person or entity are permitted or a breach thereunder or consistent or inconsistent therewith.
(xv) The provisions of this Section 14.3 shall have survive the right to retain all Investments held by it termination of this Agreement and the resignation or by any agent, delegate or sub-custodian until payment in full by the Company removal of all sums owing by the Company to the Custodian.
11.8 (xvi) The Custodian shall deliver hereby represents and warrants to the Company from time Borrower that it is qualified to time at such reasonable intervals act as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments Sections 17(f) and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf 26(a)(1) of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agent1940 Act.
Appears in 1 contract
Sources: Loan and Security Agreement (Nuveen Churchill BDC INC.)
Concerning the Custodian. 11.1 (a) The Custodian shall not be required to take any legal action upon the Company’s behalf have no duties or otherwise to protect responsibilities except those that are specifically set forth herein, it being expressly understood that no duties or otherwise in respect of Investments or Cash unless the Custodian so agrees and unless the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees obligations shall be subject to further negotiation at implied against the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement which, in the opinion of the Custodian may make it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1Custodian. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified Provided that the Custodian has delegated certain followed the terms of this Agreement or the Issuer’s instructions, the Custodian shall be under no responsibility or duty with respect to the disposition of any Mortgage Notes, Mortgages and Assignments of Mortgages while such Mortgage Notes, Mortgages or Assignments of Mortgages are not in its possession. If the Custodian shall request instructions from the Issuer with respect to any act, action or failure to act in connection with this Agreement other than an act, action or failure to act which is provided for or required of the services to be provided Custodian by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, the Custodian may without notice set-off any sum due shall be entitled to it refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Issuer without incurring any liability therefor to the Issuer, the Company or any other Person.
(b) If the Custodian shall at any time receive conflicting instructions from the Issuer and the Company with respect to any of the Mortgage Notes, Mortgages and Assignments of Mortgages and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Custodian shall follow the instructions of the Issuer and shall not be liable to the Company as a result. If the Custodian shall at any time receive conflicting instructions from the Issuer, the Company and the Collateral Agent with respect to any of the Mortgage Notes, Mortgages and Assignments of Mortgages and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Custodian shall follow the instructions of the Collateral Agent and shall not be liable to the Issuer or the Seller as a result. The Custodian shall not be responsible to the Issuer or any other party for recitals, statements or warranties or representations of the Company, the Issuer or the Collateral Agent contained herein, or in any other document or be bound to ascertain or inquire as to the performance or observance of any of the terms of this Agreement or any other agreement on the part of any party other than itself.
(c) None of the Custodian, its Affiliates or any of their respective directors, officers, agents, attorneys, employees, successors or assigns shall be liable for any action taken or omitted to be taken by it or them hereunder or in connection herewith in good faith and believed by it or them to be within the purview of this Agreement, except for its or their own gross negligence, fraud, bad faith or willful misconduct. Notwithstanding the foregoing sentence, in no event shall the Custodian or its Affiliates, directors, officers, agents and employees be held liable for any special, indirect, punitive or consequential damages resulting from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility of such damages.
(d) In the absence of bad faith on the part of the Custodian, the Custodian may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any request, instructions, certificate, opinion or other document furnished to the Custodian reasonably believed by the Custodian to be genuine and to have been signed or presented by the proper party or parties and conforming to the requirements of this Agreement absent notice to the contrary. Absent written notice to the contrary from the Issuer, the Collateral Agent, the Company, any SLN Placement Agent or any Swap Counterparty, the Custodian may conclusively rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Company will hold the Custodian harmless from any claims which may arise or be asserted against the Custodian because of the invalidity of any Cash such documents, or Investments their failure to fulfill their intended purpose. Notwithstanding the foregoing, it is expressly understood that in the case of any Mortgage Note, Mortgage, Assignment of Mortgage or other documents or other request, instruction, document or certificate which by any provision hereof is specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same to determine whether or not such document conforms to the requirements of this Agreement (which examination, in the case of any Mortgage Note, Mortgage, or Assignment of Mortgage, shall be in accordance with the Review Procedure), and to make the Certifications required by Section 4 of this Agreement.
(e) The Custodian shall not be responsible for preparing or filing any reports or returns relating to federal, state or local incomes taxes with respect to this Agreement, other than for the Custodian’s compensation or for reimbursement of expenses.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice, and shall not be bound by any of the terms and conditions of, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms and conditions (including, without limitation, definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent that such terms and provisions are referenced, or are incorporated by reference, into this Agreement only as long as the Company shall have provided a copy of any such document or agreement to the Custodian. The Company shall provide the Custodian with an executed copy of the Mortgage Loan Purchase and Servicing Agreement and the Security Agreement.
(g) The duties and obligations of the Custodian shall only be such as are expressly set forth in this Agreement or as set forth in a written amendment to this Agreement executed by the parties hereto or their successors and assigns. In the event that any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided herein.
(h) Nothing in this Agreement shall be deemed to impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage Loan File is or may be held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at hereunder, and (ii) any jurisdiction where its ownership or property or conduct of business requires such reasonable intervals as the Company may require qualification and where failure to qualify could have a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by material adverse effect on the Custodian or its agents property or business or on the ability of the Custodian to perform its duties hereunder.
(i) Under no circumstances shall the Custodian be obligated to verify the authenticity of any signature on any of the documents received or examined by it in connection with this Agreement or the authority or capacity of any person to execute or issue such document, nor shall the Custodian be responsible for the value, form, substance, validity, perfection (other than by taking and continuing possession of the Mortgage Notes, Mortgages and Assignments of Mortgages), recordability, priority, effectiveness or enforceability of any such documents, nor shall the Custodian be under a duty to inspect, review or examine the documents to determine whether they are appropriate for the represented purpose or that they have been actually recorded or that they are other than what they purport to be on their face.
(j) The Custodian shall have no duty to ascertain whether or not any cash amount or payment has been received by the Company, the Seller, the Servicer or any third person.
(k) The Custodian is not required to produce a borrowing base report or any other report detailing the value of the Mortgage Loans.
(l) The Custodian is not required to perform any cash movement and reconciliation functions on behalf of the Company Company, the Seller, the Servicer or otherwise pursuant the Issuer in relation to this Agreement.
(m) Any Person into which the Custodian may be merged or converted, or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Custodian shall be a party, or any Person succeeding to the terms hereof. If Investments are held by an agent business of the Custodian, shall be the successor of the Custodian hereunder, without the account execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
(n) The Custodian may delegate any of its duties under this Agreement to any of its agents, attorneys-in-fact, or Affiliates selected with due care, and shall state the name and address of and indicate the Investments held by not be liable for their gross negligence or willful misconduct. Any such agent, attorney-in-fact, or Affiliate (and such Affiliate’s directors, officers, agents and employees) which performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver and other protective provisions to which the Custodian is entitled under this Agreement.
(o) 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 the Custodian in good faith and in accordance therewith.
(p) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters.
(q) Notwithstanding the foregoing limitations in this Section 18, nothing in this Agreement which references the “Affiliates” of the Custodian, shall constitute a limitation on the obligations of the Collateral Agent arising under this Agreement or any of the other Program Documents.
(r) None of the provisions of this Agreement shall require the Custodian to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it.
Appears in 1 contract
Concerning the Custodian. 11.1 In the absence of bad faith on the part of the Custodian, the Custodian may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any request, instruction, certificate, opinion or other document furnished to the Custodian, reasonably believed by the Custodian to be genuine and to have been signed or presented by the proper party or parties and conforming to the requirements of this Custodial Agreement; but in the case of any Loan Document or other request, instruction, document or certificate which by any provision hereof is specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same in accordance with the requirements of this Custodial Agreement. The Custodian undertakes to perform such duties and only such duties as are specifically set forth in this Custodial Agreement. The Custodian shall not have any duties or responsibilities except those expressly set forth in this Custodial Agreement. The Custodian shall not be required liable for any error of judgment made in good faith by an officer or officers of the Custodian, unless it shall be conclusively determined by a court of competent jurisdiction that the Custodian was negligent in ascertaining the pertinent facts. The Custodian shall not be liable with respect to take any legal action upon taken or omitted to be taken by it in good faith in accordance with any direction of the Company’s behalf Sellers or the Buyer given under this Custodial Agreement. None of the provisions of this Custodial Agreement shall require the Custodian to expend or risk its own funds or otherwise to protect incur any liability, financial or otherwise in respect of Investments or Cash unless the Custodian so agrees and unless the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement whichotherwise, in the opinion of the Custodian may make it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it. The Custodian may consult with external counsel and the written advice or any written opinion of counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel. Any entity into which the Custodian may appoint be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which the Custodian shall be a party, or any entity succeeding to the business of the Custodian shall be the successor of the Custodian hereunder without the execution or filing of any paper with any parties hereto or any further act on the part of any of the parties hereto except when an instrument or transfer or assignment is required by law to effect such agents as it thinks fitsuccession, including sub-custodiansanything herein to the contrary notwithstanding. To help fight the funding of terrorism and money laundering activities, the Custodian will obtain, verify and agrees record information that it shall exercise reasonable care in selecting any such agentidentifies individuals or entities that establish a relationship or open an account with the Custodian. The custodian will ask for the name, address, tax identification number and other information that will allow the Custodian to identify the individual or entity who is establishing the relationship or opening the account. The Custodian will not be liable may also ask for the acts formation documents such as articles of incorporation, an offering memorandum or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services other identifying documents to be provided by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegationprovided.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, the Custodian may without notice set-off any sum due to it from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agent.
Appears in 1 contract
Concerning the Custodian. 11.1 The 1. Except as otherwise provided herein, the Custodian shall not be required liable for any loss or damage, including counsel fees, resulting from its action or omission to take act or otherwise, except for any legal action upon such loss or damage arising out of its own negligence or willful misconduct. The Trust, on behalf of the Company’s Funds and only from Funds Assets (or insurance purchased by the Trust with respect to its liabilities on behalf or otherwise to protect or otherwise in respect of Investments or Cash unless the Funds hereunder), shall defend, indemnify .and hold harmless the Custodian so agrees and unless its Trustees, Officers, Employees and Agents with respect to any loss, claim, liability or cost (including reasonable attorneys' fees) arising or alleged to arise from or relating to the Custodian is first fully indemnified in a form satisfactory Trust's duties with respect to it by the Company.
11.2 Where the Custodian is required to consider Funds hereunder or engage in further activities, litigation any other action or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement which, in the opinion inaction of the Custodian Trust or its Trustees, Officers, Employees or Agents as to the Funds, except such as may make it or any agent, delegate or sub-custodian liable for arise from the payment of money or in any other way, and if the Custodian agrees to take any such negligent action, then omission or willful misconduct of the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In additionCustodian, the Custodian mayits Directors, in its sole discretionOfficers, require further indemnification Employees or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agentAgents. The Custodian will not be liable for shall defend, indemnify and hold harmless the acts Trust and its Trustees, Officers, Employees or omissions of Agents with respect to any such agent selected by it with loss, claim, liability or cost (including reasonable care attorneys' fees) arising or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services alleged to be provided by it hereunder arise from or relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company Custodian's duties with respect to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, the Custodian may without notice set-off Funds hereunder or any sum due to it from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date or inaction of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents Trustees, Officers, Employees, Agents, nominees or Sub-Custodians as to the Funds, except such as may arise from the negligent action, omission or willful misconduct of the Trust, its Trustees, Officers, Employees or Agents. The Custodian may, with respect to questions of law apply for and obtain the advice and opinion of counsel to the Trust at the expense of the Funds, or of its own counsel at its own expense, and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with the advice or opinion of counsel to the Trust, and shall be similarly protected with respect to anything done or omitted by it in good faith in conformity with advice or opinion of its counsel, unless counsel to the Funds shall, within a reasonable time after being notified of legal advice received by the Custodian, have a differing interpretation of such question of law. The Custodian shall be liable to the Trust for any proximate loss or damage resulting from the use of the Book-Entry System or any Depository arising by reason of any negligence, misfeasance or misconduct on the part of the Custodian or any of its employees, agents, nominees or Sub-Custodians but not for any special, incidental, consequential, or punitive damages; provided, however, that nothing contained herein shall preclude recovery by the Trust, on behalf of the Company or otherwise pursuant Funds, of principal and of interest to the terms hereofdate of recovery on, Securities incorrectly omitted from the Funds' account or penalties imposed on the Trust, in connection with the Funds, for any failures to deliver Securities. If Investments are held by an agent In any case in which one party hereto may be asked to indemnify the other or hold the other harmless, the party from whom indemnification is sought (the "Indemnified Party") shall be advised of all pertinent facts concerning the situation in question, and the party claiming a right to indemnification (the "Indemnified Party") will use reasonable care to identify and notify the Indemnifying Party promptly concerning any situation which presents or appears to present a claim for indemnification against the Indemnifying Party. The Indemnifying Party shall have the option to defend the Indemnified Party against any claim which may be the subject of the indemnification, and in the event the Indemnifying Party so elects, such defense shall be conducted by counsel chosen by the Indemnifying Party and satisfactory to the Indemnified Party and the Indemnifying Party will so notify the Indemnified Party and thereupon such Indemnifying Party shall take over the complete defense of the claim and the Indemnified Party shall sustain no further legal or other expenses in such situation for which indemnification has been sought under this paragraph, except the expenses of any additional counsel retained by the Indemnified Party. In no case shall any party claiming the right to indemnification confess any claim or make any compromise in any case in which the other party has been asked to indemnify such party (unless such confession or compromise is made with such other party's prior written consent). The obligations of the parties hereto under this paragraph shall survive the termination of this Agreement.
2. Without limiting the generality of the foregoing, the Custodian, acting in the capacity of Custodian hereunder, shall be under no obligation to inquire into, and shall not be liable for:
(a) The validity of the issue of any Securities purchased by or for the account shall state of the name and address Funds, the legality of and indicate the Investments held purchase thereof, or the propriety of the amount paid therefor;
(b) The legality of the sale of any Securities by such agent.or for the account of the Funds, or the propriety of the amount for which the same are sold;
(c) The legality of the issue or sale of any shares of the Funds, or the sufficiency of the amount to be received therefor;
(d) The legality of the redemption of any shares of the Funds, or the propriety of the amount to be paid therefor;
(e) The legality of the declaration or payment of any dividend by the Trust in respect of shares of the Funds;
(f) The legality of any borrowing by the Trust, on behalf of the Funds, using Securities as collateral;
Appears in 1 contract
Concerning the Custodian. 11.1 The Custodian shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties. The Custodian shall not be required liable for any action taken in good faith upon any certificate herein described or certified copy of any resolution of the Board of Directors or of the Executive Committee, and may rely on the genuineness of any such document which it may in good faith believe to take any legal action upon the Company’s behalf or otherwise have been validly executed. The Fund agrees to protect or otherwise in respect of Investments or Cash unless indemnify and hold harmless the Custodian so agrees and unless the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider its nominee from all taxes, charges, expenses, assessments, claims and liabilities (including counsel fees) incurred or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement which, in the opinion of the Custodian may make assessed against it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability its nominee in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services to be provided by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, except such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct. The Custodian is authorized to charge any account of the Fund for such items other than those items which are associated with asserted claims and liabilities of the Custodian for its conduct. Payment to the Custodian for items which are associated with asserted claims and liabilities of the Custodian for its conduct may without notice set-off any sum due to it from only be charged against an account of the Company against any Cash or Investments held Fund by the Custodian and shall have upon receipt of an officers' certificate from the power to pay out Fund authorizing such payment. In the event of the assets any advance of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by cash for any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments purpose made and other action taken by the Custodian pursuant to this Agreement since resulting from orders or instructions of the last date such an account was provided together with a list as at Fund, or in the date of such account of all Investments and Cash or other indebtedness or obligations held by event that the Custodian or its agents 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 nominee's own negligent action, negligent failure to act or willful misconduct, any property at any time held for or on behalf the account of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account Fund shall state the name and address of and indicate the Investments held by such agentbe security therefor.
Appears in 1 contract
Concerning the Custodian. 11.1 (a) The Custodian shall have no duties or responsibilities except those specifically set forth herein. The Custodian shall have no responsibility nor duty with respect to any Mortgage Files while not in its possession. If the Custodian requests instructions from the Buyer with respect to any act, action or failure to act in connection with this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received Written Instructions from the Buyer with respect to a Mortgage File without incurring any liability therefore to the Buyer, any Seller or any other Person.
(b) The Custodian shall not be required liable for any action or omission to take any legal action upon the Company’s behalf act hereunder except for its own negligence or otherwise to protect lack of good faith or otherwise in respect of Investments or Cash unless willful misconduct. In no event shall the Custodian so agrees and unless have any responsibility to ascertain or take action except as expressly provided herein.
(c) Without limiting the generality of the foregoing, the Custodian is first may conclusively rely upon and shall be fully indemnified protected in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider or engage acting in further activitiesgood faith upon any Written Instructions, litigation notice or other exceptional matters, additional fees shall communication from the Buyer or Sellers received by it and which it reasonably believes to be subject genuine and duly authorized with respect to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant all matters pertaining to this Agreement whichand its duties hereunder.
(d) The Custodian shall not be liable to the Sellers, the Buyer, or any other Person with respect to any action taken or not taken by it in good faith in the opinion performance of its obligations under this Agreement. The obligations of the Custodian may make it shall be determined solely by the express provisions of this Agreement. No representation, warranty, covenant, agreement, obligation or any agentduty of the Custodian shall be implied with respect to this Agreement or the Custodian’s services hereunder.
(e) The Custodian shall be under no duty or obligation to inspect, delegate review or sub-custodian liable examine the Mortgage Files to determine that the contents thereof are genuine, enforceable or appropriate for the payment represented purpose or that they have been actually recorded, are in the proper form for recordation or that they are not other than what they purport to be on their face.
(f) No provision of money or in any other way, and if this Agreement shall require the Custodian agrees to take any such action, then the Company expressly acknowledges that any expend or risk its own funds or otherwise incur financial liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification (other than expenses or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services liabilities otherwise required to be provided incurred by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, ) in the Custodian may without notice set-off any sum due performance of its duties under this Agreement if it shall have a good faith belief that repayment of such funds or indemnity satisfactory to it from the Company against any Cash or Investments held by the Custodian and shall have the power is not reasonably assured to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodianit.
11.8 (g) The Custodian shall deliver use the same degree of care and skill as is reasonably expected of financial institutions acting in comparable capacities which are held to the Company from time a standard of care of ordinary negligence, and this Section 20 shall not be interpreted to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by impose upon the Custodian pursuant to a higher standard of care than that set forth in this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agentsentence.
Appears in 1 contract
Concerning the Custodian. 11.1 (a) The Custodian shall have no duties or responsibilities except those specifically set forth herein. The Custodian shall have no responsibility nor duty with respect to any Mortgage Files while not be required to take any legal action upon the Company’s behalf or otherwise to protect or otherwise in respect of Investments or Cash unless the Custodian so agrees and unless the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 possession. If the Custodian requests instructions from the Buyer with respect to any act, action or failure to act in connection with this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received Written Instructions from the Buyer with respect to a Mortgage File without incurring any liability therefore to the Buyer, the Sellers or any other Person.
(b) Without limiting the generality of the foregoing, the Custodian may rely upon and shall be fully protected in acting in good faith upon any capacity) is requested Written Instructions, certificate, resolution, statement, instrument, opinion, report, request, consent, order, approval, notice or other communication from the Buyer, any Registered Holder or the Sellers received by it and which it reasonably believes to take any action in the course of providing any services pursuant be genuine and duly authorized with respect to all matters pertaining to this Agreement whichand its duties hereunder.
(c) Neither the Custodian, nor its officers, directors, employees or agents shall be liable to the Sellers, the Buyer, or any other Person with respect to any action taken or not taken by it in good faith in the opinion performance of its obligations hereunder or in connection herewith. The obligations of the Custodian may make it shall be determined solely by the express provisions of this Agreement. No representation, warranty, covenant, agreement, obligation or any agent, delegate or sub-custodian liable for the payment duty of money or in any other way, and if the Custodian agrees shall be implied with respect to take any such action, then this Agreement or the Company expressly acknowledges that any liability in connection with such action taken by Custodian's services hereunder. In no event shall the Custodian will be covered by the indemnity have any responsibility to ascertain or take action except as expressly provided pursuant to Clause 17.1. In additionherein.
(d) Unless expressly provided herein, the Custodian mayshall be under no duty or obligation to inspect, review or examine the Mortgage Files to determine that the contents thereof are genuine, enforceable or appropriate for the represented purpose or that they have been actually recorded, are in its sole discretionthe proper form for recordation or, require further indemnification or unless expressly provided herein, that they are not other assurance as a prerequisite than what they purport to taking such actionbe on their face.
11.4 In the performance (e) No provision of any services hereunder this Agreement shall require the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts to expend or omissions of any such agent selected by it with reasonable care risk its own funds or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services otherwise incur financial liability (other than expenses or liabilities otherwise required to be provided incurred by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement) in the performance of its duties under this Agreement if it shall have a good faith belief that repayment of such funds or indemnity reasonably satisfactory to it is not reasonably assured to it.
(f) The Custodian shall use the same degree of care and skill as is reasonably expected of financial institutions acting as custodian of mortgage loans which are held to a standard of care of ordinary negligence, and this Section 21 shall not be interpreted to impose upon the Custodian a higher standard of care than that set forth in this sentence.
(g) In order to comply with its duties under the U.S.
A. Patriot Act, the Custodian may without notice set-off any sum due to it shall obtain and verify certain information and documentation from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company other parties hereto, including, but not limited to, such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agentparty's name, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made address, and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agentidentifying information.
Appears in 1 contract
Sources: Custodial Agreement (American Home Mortgage Investment Corp)
Concerning the Custodian. 11.1 For its services hereunder the Custodian shall be paid such compensation at such times as may from time to time be agreed on in writing by the parties hereto in a Custodian Fee Agreement. The Custodian shall not be required liable for any action taken in good faith upon any custodian order or facsimile herein described, trade affirmation report, or certified copy of any resolution of the Board or of the Executive Committee of the Board, and may rely on the genuineness of any such document which it may, in good faith, believe to take any legal action upon the Company’s behalf have been validly prepared or otherwise executed. The Trust agrees to protect or otherwise in respect of Investments or Cash unless indemnify and hold harmless the Custodian so agrees and unless its nominee from all taxes, charges, expenses, assessments, claims and liabilities (including counsel fees) incurred or assessed against it or its nominee in connection with the performance of this Agreement, except such as may arise from the Custodian's or its nominee's own negligent action, negligent failure to act or willful misconduct. The Custodian is first fully indemnified in a form satisfactory authorized to it by charge any account of the Company.
11.2 Where Trust for such items. In the Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence event of contrary agreement additional fees shall be charged any advance of cash for any purpose made by the Custodian at its hourly rate resulting from time to time orders or instructions of the Trust, or in effect.
11.3 If the event that the Custodian (in or its nominee shall incur or be assessed any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement whichtaxes, in the opinion of the Custodian may make it charges, expenses, assessments, claims or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability liabilities in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action.
11.4 In the performance of this Agreement, except such as may arise from its or its nominee's own negligent action, negligent failure to act or willful misconduct, any services hereunder property at any time held for the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it account of the Trust shall exercise reasonable care in selecting any such agentbe security therefore. The Custodian will shall maintain a standard of care equivalent to that which would be required of a bailee for hire and shall not be liable for any loss or damage to the acts Trust resulting from participation in a securities depository unless such loss or omissions damage arises by reason of any such agent selected by it with reasonable care negligence, misfeasance, or for the solvency willful misconduct of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain officers or employees of the services to be provided by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants or from its failure to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, the Custodian enforce effectively such rights as it may without notice set-off any sum due to it from the Company have against any Cash securities depository or Investments held from use of an agent, unless such loss or damage arises by the Custodian and shall have the power to pay out reason of any negligence, misfeasance, or willful misconduct of officers or employees of the assets of the Company Custodian, or from its failure to enforce effectively such amounts due to rights as it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall may have the right to retain all Investments held by it or by against any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agent.
Appears in 1 contract
Sources: Custodian Agreement (Advisory Hedged Opportunity Fund)
Concerning the Custodian. 11.1 (a) The Custodian shall have no duties or responsibilities except those specifically set forth herein. The Custodian shall have no responsibility nor duty with respect to any Mortgage Files while not in its possession. If the Custodian requests instructions from the Buyer with respect to any act, action or failure to act in connection with this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received Written Instructions from the Buyer with respect to a Mortgage File without incurring any liability therefore to the Buyer, the Seller or any other Person.
(b) The Custodian shall not be required liable for any action or omission to take any legal action upon the Company’s behalf act hereunder except for its own negligence or otherwise to protect lack of good faith or otherwise in respect of Investments or Cash unless willful misconduct. In no event shall the Custodian so agrees and unless have any responsibility to ascertain or take action except as expressly provided herein.
(c) Without limiting the generality of the foregoing, the Custodian is first may conclusively rely upon and shall be fully indemnified protected in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider or engage acting in further activitiesgood faith upon any Written Instructions, litigation notice or other exceptional matters, additional fees shall communication from the Buyer or Seller received by it and which it reasonably believes to be subject genuine and duly authorized with respect to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant all matters pertaining to this Agreement whichand its duties hereunder.
(d) The Custodian shall not be liable to the Seller, the Buyer, or any other Person with respect to any action taken or not taken by it in good faith in the opinion performance of its obligations under this Agreement. The obligations of the Custodian may make it shall be determined solely by the express provisions of this Agreement. No representation, warranty, covenant, agreement, obligation or any agentduty of the Custodian shall be implied with respect to this Agreement or the Custodian’s services hereunder.
(e) The Custodian shall be under no duty or obligation to inspect, delegate review or sub-custodian liable examine the Mortgage Files to determine that the contents thereof are genuine, enforceable or appropriate for the payment represented purpose or that they have been actually recorded, are in the proper form for recordation or that they are not other than what they purport to be on their face.
(f) No provision of money or in any other way, and if this Agreement shall require the Custodian agrees to take any such action, then the Company expressly acknowledges that any expend or risk its own funds or otherwise incur financial liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification (other than expenses or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services liabilities otherwise required to be provided incurred by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, ) in the Custodian may without notice set-off any sum due performance of its duties under this Agreement if it shall have a good faith belief that repayment of such funds or indemnity satisfactory to it from the Company against any Cash or Investments held by the Custodian and shall have the power is not reasonably assured to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodianit.
11.8 (g) The Custodian shall deliver use the same degree of care and skill as is reasonably expected of financial institutions acting in comparable capacities which are held to the Company from time a standard of care of ordinary negligence, and this Section 20 shall not be interpreted to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by impose upon the Custodian pursuant to a higher standard of care than that set forth in this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agentsentence.
Appears in 1 contract
Concerning the Custodian. 11.1 (a) The acceptance by the Custodian of its appointment hereunder is expressly subject to the following terms, which shall govern and apply to each of the terms and provisions of this Section 14 (whether or not so stated therein or herein):
(i) The Custodian shall have no duties, obligations or responsibilities under this Section 14 or with respect to the Required Loan Documents except for such duties, obligations or responsibilities as are expressly and specifically set forth in this Section 14 as duties obligations or responsibilities on its part to be performed, and the duties obligations and responsibilities of the Custodian shall be determined solely by the express provisions of this Section 14. No implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Custodian. Any permissive right of the Custodian to take any action hereunder shall not be construed as a duty.
(ii) The Custodian makes no representations as to and shall not be responsible for or required to verify (x) the validity, legality, enforceability, due authorization, effectiveness, recordability, insurability, sufficiency, value, form, substance, or genuineness of any of the documents contained in any Required Loan Document or (y) the collectability, validity, transferability, insurability, value, effectiveness, perfection, priority or suitability of any Required Loan Document or any document contained therein.
(iii) The Custodian shall have no responsibilities or duties with respect to any Required Loan Document while such Required Loan Document is not in its possession.
(iv) The Custodian may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, statement, certificate, request, waiver, consent, opinion, report, receipt or other paper or document furnished to it in accordance with this Section 14, not only as to its due execution and validity, but also as to the truth and accuracy of any information therein contained, which it in good faith believes to be genuine and signed or presented by the proper person (which in the case of any instruction from or on behalf of the Borrower shall be an Authorized Person). The Custodian shall be entitled to reasonably presume the genuineness and due authority of any signature appearing thereon. The Custodian shall not be required bound to take make any legal action upon independent investigation into the Company’s behalf facts or otherwise to protect matters stated in any such notice, instruction, statement, certificate, request, waiver, consent, opinion, report, receipt or otherwise in respect other paper or document, provided, however, that if the form thereof is specifically prescribed by the terms of Investments or Cash unless this Section 14, the Custodian so agrees and unless shall examine the same to determine whether it substantially conforms on its face to the requirements set forth herein.
(v) Neither the Custodian is first fully indemnified nor any of its directors, officers or employees shall be liable to anyone for any error of judgment, or for any act done or step taken or omitted to be taken by it (or any of its directors, officers of employees), or for any mistake of fact or law, or for anything which it may do or refrain from doing in a form satisfactory to it by connection herewith, unless such action constitutes gross negligence or willful misconduct of the CompanyCustodian.
11.2 Where the (vi) The Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall not be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement which, in the opinion of the Custodian may make it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will it in good faith and reasonably believed by it to be covered within powers conferred upon it, or taken by the indemnity provided it pursuant to Clause 17.1. In additionany direction or instruction received by it in accordance with this Section 14, -144- USActive 57310676.6USActive 60324964.3 or omitted to be taken by it by reason of the Custodian may, in its sole discretion, require further indemnification lack of direction or other assurance as a prerequisite to taking instruction required hereby for such action.
11.4 In (vii) The Custodian may consult with, and obtain advice from, legal counsel selected in good faith, with respect to any question as to any of the provisions hereof or its duties hereunder, or any matter relating hereto, and the opinion or advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered, or omitted by the Custodian in good faith in accordance with the advice or opinion of such counsel. The reasonable costs and expenses of such advice or opinion shall be reimbursed by the Borrower pursuant to Section 12 hereof.
(viii) No provision of this Agreement shall require the Custodian to expend or risk its own funds, take any action hereunder (or omit to take any action) or otherwise incur any financial liability in the performance of any services its duties under this Section 14 if it shall have grounds for believing that repayment of such funds or indemnity satisfactory is not assured to it.
(ix) The Custodian may act or exercise its duties or powers hereunder through agents or attorneys, and the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable or responsible for the acts actions or omissions of any such agent selected or attorney appointed and maintained with due care.
(x) If the Custodian shall request instructions from the Borrower with respect to any act, action or failure to act in connection with this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Borrower without incurring any liability therefor to the Borrower, or any other Person.
(xi) In no event shall the Custodian or its directors, affiliates, officers, agents and employees be held liable for any lost profits or exemplary, punitive, special, indirect or consequential damages of any kind resulting from any action taken or omitted to be taken by it with reasonable care or for them hereunder or in connection herewith even if advised of the solvency possibility of such damages.
(xii) The Custodian shall not be deemed to have notice of any such agent.
11.5 The Company is hereby notified that fact, claim or demand with respect hereto unless a Responsible Officer of the Custodian has delegated certain actual knowledge thereof or written notice thereof. Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of and shall not be bound by any of the services terms and conditions of any other document or agreement unless the Custodian is a signatory party to be provided by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegationthat document or agreement.
11.6 In order (xiii) Nothing in this Section 14 shall be deemed to secure all and any obligations of the Company to the Custodian, the Company hereby grants to impose on the Custodian a continuing lien and security interest over all Cash and Investments any duty to qualify to do business in any jurisdiction, other than (x) any jurisdiction where any Required Loan Document is or may be held by the Custodian from time to time held in hereunder, and (y) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Deposit Account and Custodian or its property or business or on the Securities Accountability of the Custodian to perform its duties hereunder.
11.7 Notwithstanding that (xiv) The Custodian shall have only the duties and responsibilities with respect to the matters set forth herein as is expressly set forth in writing herein and shall not be deemed to be an agent, bailee or fiduciary for any party hereto. The Custodian holds shall be fully protected in acting or refraining from acting in good faith without investigation on any notice, instruction or request purportedly furnished to it USActive 57310676.6USActive 60324964.3 by the Cash and Investments in trust for the Company Borrower in accordance with the terms of this Agreementhereof, in which case the Custodian may without notice set-off any sum due to it from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and parties hereto agree that the Custodian has no duty to make any further inquiry whatsoever. It is hereby acknowledged and agreed that the Custodian has no knowledge of (and is not required to know) the terms and provisions of any loan agreements or any other related documentation to which the Lender may be a party or whether any actions by the, the Borrower or any other person or entity are permitted or a breach thereunder or consistent or inconsistent therewith.
(xv) The provisions of this Section 14.3 shall have survive the right to retain all Investments held by it termination of this Agreement and the resignation or by any agent, delegate or sub-custodian until payment in full by the Company removal of all sums owing by the Company to the Custodian.
11.8 (xvi) The Custodian shall deliver hereby represents and warrants to the Company from time Borrower that it is qualified to time at such reasonable intervals act as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments Sections 17(f) and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf 26(a)(1) of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agent1940 Act.
Appears in 1 contract
Sources: Loan and Security Agreement (Nuveen Churchill Direct Lending Corp.)
Concerning the Custodian. 11.1 (a) The acceptance by the Custodian of its appointment hereunder is expressly subject to the following terms, which shall govern and apply to each of the terms and provisions of this Section 13 (whether or not so stated therein or herein):
(i) The Custodian shall have no duties, obligations or responsibilities under this Section 13 or with respect to the Required Loan Documents except for such duties, obligations or responsibilities as are expressly and specifically set forth in this Section 13 as duties obligations or responsibilities on its part to be performed, and the duties obligations and responsibilities of the Custodian shall be determined solely by the express provisions of this Section 13. No implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Custodian. Any permissive right of the Custodian to take any action hereunder shall not be construed as a duty.
(ii) The Custodian makes no representations as to and shall not be responsible for or required to verify (x) the validity, legality, enforceability, due authorization, effectiveness, recordability, insurability, sufficiency, value, form, substance, or genuineness of any of the documents contained in any Required Loan Document or (y) the collectability, validity, transferability, insurability, value, effectiveness, perfection, priority or suitability of any Required Loan Document or any document contained therein.
(iii) The Custodian shall have no responsibilities or duties with respect to any Required Loan Document while such Required Loan Document is not in its possession.
(iv) The Custodian may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, statement, certificate, request, waiver, consent, opinion, report, receipt or other paper or document furnished to it in accordance with this Section 13, not only as to its due execution and validity, but also as to the truth and accuracy of any information therein contained, which it in good faith believes to be genuine and signed or presented by the proper person (which in the case of any instruction from or on behalf of the Borrower shall be an Authorized Person). The Custodian shall be entitled to reasonably presume the genuineness and due authority of any signature appearing thereon. The Custodian shall not be required bound to take make any legal action upon independent investigation into the Company’s behalf facts or otherwise to protect matters stated in any such notice, instruction, statement, certificate, request, waiver, consent, opinion, report, electronic communication, receipt or otherwise in respect other paper or document, provided, however, that if the form thereof is specifically prescribed by the terms of Investments or Cash unless this Section 13, the Custodian so agrees and unless shall examine the same to determine whether it substantially conforms on its face to the requirements set forth herein.
(v) Neither the Custodian is first fully indemnified nor any of its directors, officers or employees shall be liable to anyone for any error of judgment, or for any act done or step taken or omitted to be taken by it (or any of its directors, officers of employees), or for any mistake of fact or law, or for anything which it may do or refrain from doing in a form satisfactory to it by connection herewith, unless such action constitutes gross negligence or willful misconduct of the CompanyCustodian.
11.2 Where the (vi) The Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall not be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement which, in the opinion of the Custodian may make it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will it in good faith and reasonably believed by it to be covered within powers conferred upon it, or taken by the indemnity provided it pursuant to Clause 17.1. In additionany direction or instruction received by it in accordance with this Section 13, or omitted to be taken by it by reason of the Custodian may, in its sole discretion, require further indemnification lack of direction or other assurance as a prerequisite to taking instruction required hereby for such action.
11.4 In (vii) The Custodian may consult with, and obtain advice from, legal counsel selected in good faith, with respect to any question as to any of the provisions hereof or its duties hereunder, or any matter relating hereto, and the opinion or advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered, or omitted by the Custodian in good faith in accordance with the advice or opinion of such counsel. The reasonable costs and expenses of such advice or opinion shall be reimbursed by the Borrower pursuant to Section 12 hereof.
(viii) No provision of this Agreement shall require the Custodian to expend or risk its own funds, take any action hereunder (or omit to take any action) or otherwise incur any financial liability in the performance of any services its duties under this Section 13 if it shall have grounds for believing that repayment of such funds or indemnity satisfactory is not assured to it.
(ix) The Custodian may act or exercise its duties or powers hereunder through agents or attorneys, and the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable or responsible for the acts actions or omissions of any such agent selected by it or attorney appointed and maintained with reasonable care or for the solvency of any such agentdue care.
11.5 The Company is hereby notified that (x) If the Custodian has delegated certain of shall request instructions from the services Borrower with respect to be provided by it hereunder relating any act, action or failure to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held act in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance connection with the terms of this Agreement, the Custodian may without notice set-off any sum due shall be entitled to it refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Company against Borrower without incurring any Cash liability therefor to the Borrower, or Investments any other Person.
(xi) In no event shall the Custodian or its directors, affiliates, officers, agents and employees be held liable for any lost profits or exemplary, punitive, special, indirect or consequential damages of any kind resulting from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility of such damages.
(xii) The Custodian shall not be deemed to have notice of any fact, claim or demand with respect hereto unless a Responsible Officer of the Custodian has actual knowledge thereof or written notice thereof. Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of and shall not be bound by any of the terms and conditions of any other document or agreement unless the Custodian is a signatory party to that document or agreement.
(xiii) Nothing in this Section 13 shall be deemed to impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (x) any jurisdiction where any Required Loan Document is or may be held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at hereunder, and (y) any jurisdiction where its ownership of property or conduct of business requires such reasonable intervals as the Company may require qualification and where failure to qualify could have a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by material adverse effect on the Custodian or its agents for property or business or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent ability of the Custodian the account shall state the name and address of and indicate the Investments held by such agentto perform its duties hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement (Palmer Square Capital BDC Inc.)
Concerning the Custodian. 11.1 In the absence of bad faith on the part of the Custodian, the Custodian may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any request, instruction, certificate, opinion or other document furnished to the Custodian, reasonably believed by the Custodian to be genuine and to have been signed or presented by the proper party or parties and conforming to the requirements of this Custodial Agreement; but in the case of any Mortgage Loan Document or other request, instruction, document or certificate which by any provision hereof is specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same in accordance with the requirements of this Custodial Agreement. The Custodian undertakes to perform such duties and only such duties as are specifically set forth in this Custodial Agreement. The Custodian shall not have any duties or responsibilities except those expressly set forth in this Custodial Agreement. The Custodian shall not be required liable for any error of judgment made in good faith by an officer or officers of the Custodian, unless it shall be conclusively determined by a court of competent jurisdiction that the Custodian was grossly negligent in ascertaining the pertinent facts. The Custodian shall not be liable with respect to take any legal action upon taken or omitted to be taken by it in good faith in accordance with any direction of the Company’s behalf Seller or Buyers given under this Custodial Agreement. None of the provisions of this Custodial Agreement shall require the Custodian to expend or risk its own funds or otherwise to protect incur any liability, financial or otherwise in respect of Investments or Cash unless the Custodian so agrees and unless the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement whichotherwise, in the opinion of the Custodian may make it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it. The Custodian may consult with nationally recognized counsel and the written advice or any written opinion of such counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel. Any entity into which the Custodian may appoint such agents as be merged or converted or with which it thinks fitmay be consolidated, including sub-custodiansor any entity resulting from any merger, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts conversion or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services consolidation to be provided by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, the Custodian may without notice set-off any sum due to it from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that which the Custodian shall have the right to retain all Investments held by it be a party, or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company entity succeeding to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent business of the Custodian shall be the account shall state successor of the name and address Custodian hereunder without the execution or filing of and indicate any paper with any parties hereto or any further act on the Investments held part of any of the parties hereto except where an instrument or transfer or assignment is required by law to effect such agentsuccession, anything herein to the contrary notwithstanding.
Appears in 1 contract
Concerning the Custodian. 11.1 (a) The acceptance by the Custodian of its appointment hereunder is expressly subject to the following terms, which shall govern and apply to each of the terms and provisions of this Section 13 (whether or not so stated therein or herein):
(i) The Custodian shall have no duties, obligations or responsibilities under this Section 13 or with respect to the Required Loan Documents except for such duties, obligations or responsibilities as are expressly and specifically set forth in this Section 13 as duties obligations or responsibilities on its part to be performed, and the duties obligations and responsibilities of the Custodian shall be determined solely by the express provisions of this Section 13. No implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Custodian. Any permissive right of the Custodian to take any action hereunder shall not be construed as a duty.
(ii) The Custodian makes no representations as to and shall not be responsible for or required to verify (x) the validity, legality, enforceability, due authorization, effectiveness, recordability, insurability, sufficiency, value, form, substance, or genuineness of any of the documents contained in any Required Loan Document or (y) the collectability, validity, transferability, insurability, value, effectiveness, perfection, priority or suitability of any Required Loan Document or any document contained therein.
(iii) The Custodian shall have no responsibilities or duties with respect to any Required Loan Document while such Required Loan Document is not in its possession.
(iv) The Custodian may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, statement, certificate, request, waiver, consent, opinion, report, receipt or other paper, electronic communication or document furnished to it in accordance with this Section 13, not only as to its due execution and validity, but also as to the truth and accuracy of any information therein contained, which it in good faith believes to be genuine and signed or presented by the proper person (which in the case of any instruction from or on behalf of the Borrower shall be an Authorized Person). The Custodian shall be entitled to reasonably presume the genuineness and due authority of any signature appearing thereon. The Custodian shall not be required bound to take make any legal action upon independent investigation into the Company’s behalf facts or otherwise to protect matters stated in any such notice, instruction, statement, certificate, request, waiver, consent, opinion, report, electronic communication, receipt or otherwise in respect other paper or document, provided, however, that if the form thereof is specifically prescribed by the terms of Investments or Cash unless this Section 13, the Custodian so agrees and unless shall examine the same to determine whether it substantially conforms on its face to the requirements set forth herein.
(v) Neither the Custodian is first fully indemnified nor any of its directors, officers or employees shall be liable to anyone for any error of judgment, or for any act done or step taken or omitted to be taken by it (or any of its directors, officers of employees), or for any mistake of fact or law, or for anything which it may do or refrain from doing in a form satisfactory to it by connection herewith, unless such action constitutes gross negligence or willful misconduct of the CompanyCustodian.
11.2 Where the (vi) The Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall not be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement which, in the opinion of the Custodian may make it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will it in good faith and reasonably believed by it to be covered within powers conferred upon it, or taken by the indemnity provided it pursuant to Clause 17.1. In additionany direction or instruction received by it in accordance with this Section 13, or omitted to be taken by it by reason of the Custodian may, in its sole discretion, require further indemnification lack of direction or other assurance as a prerequisite to taking instruction required hereby for such action.
11.4 In (vii) The Custodian may consult with, and obtain advice from, legal counsel selected in good faith, with respect to any question as to any of the provisions hereof or its duties hereunder, or any matter relating hereto, and the opinion or advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered, or omitted by the Custodian in good faith in accordance with the advice or opinion of such counsel. The reasonable costs and expenses of such advice or opinion shall be reimbursed by the Borrower pursuant to Section 12 hereof.
(viii) No provision of this Agreement shall require the Custodian to expend or risk its own funds, take any action hereunder (or omit to take any action) or otherwise incur any financial liability in the performance of any services its duties under this Section 13 if it shall have grounds for believing that repayment of such funds or indemnity satisfactory is not assured to it.
(ix) The Custodian may act or exercise its duties or powers hereunder through agents or attorneys, and the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable or responsible for the acts actions or omissions of any such agent selected or attorney appointed and maintained with due care.
(x) If the Custodian shall request instructions from the Borrower with respect to any act, action or failure to act in connection with this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Borrower without incurring any liability therefor to the Borrower, or any other Person.
(xi) In no event shall the Custodian or its directors, affiliates, officers, agents and employees be held liable for any lost profits or exemplary, punitive, special, indirect or consequential damages of any kind resulting from any action taken or omitted to be taken by it with reasonable care or for them hereunder or in connection herewith even if advised of the solvency possibility of such damages.
(xii) The Custodian shall not be deemed to have notice of any such agent.
11.5 The Company is hereby notified that fact, claim or demand with respect hereto unless a Responsible Officer of the Custodian has delegated certain actual knowledge thereof or written notice thereof. Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of and shall not be bound by any of the services terms and conditions of any other document or agreement unless the Custodian is a signatory party to be provided by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegationthat document or agreement.
11.6 In order (xiii) Nothing in this Section 13 shall be deemed to secure all and any obligations of the Company to the Custodian, the Company hereby grants to impose on the Custodian a continuing lien and security interest over all Cash and Investments any duty to qualify to do business in any jurisdiction, other than (x) any jurisdiction where any Required Loan Document is or may be held by the Custodian from time to time held in hereunder, and (y) any jurisdiction where its ownership of property or conduct of business requires such qualification and where failure to qualify could have a material adverse effect on the Deposit Account and Custodian or its property or business or on the Securities Accountability of the Custodian to perform its duties hereunder.
11.7 Notwithstanding that (xiv) The Custodian shall have only the duties and responsibilities with respect to the matters set forth herein as is expressly set forth in writing herein and shall not be deemed to be an agent, bailee or fiduciary for any party hereto. The Custodian holds shall be fully protected in acting or refraining from acting in good faith without investigation on any notice, instruction or request purportedly furnished to it by the Cash and Investments in trust for the Company Borrower in accordance with the terms of this Agreementhereof, in which case the Custodian may without notice set-off any sum due to it from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and parties hereto agree that the Custodian has no duty to make any further inquiry whatsoever. It is hereby acknowledged and agreed that the Custodian has no knowledge of (and is not required to know) the terms and provisions of any loan agreements or any other related documentation to which the Lender may be a party or whether any actions by the, the Borrower or any other person or entity are permitted or a breach thereunder or consistent or inconsistent therewith.
(xv) The provisions of this Section 13.3 shall have survive the right to retain all Investments held by it termination of this Agreement and the resignation or by any agent, delegate or sub-custodian until payment in full by the Company removal of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agent.
Appears in 1 contract
Sources: Loan and Security Agreement (Kayne Anderson BDC, Inc.)
Concerning the Custodian. 11.1 (a) The Custodian shall not be required liable for any loss or damage, including counsel fees, resulting from its action or omission to take act or otherwise, except for any legal loss, damage, claim or expense arising out of its own negligence or willful misconduct, and shall have no obligation hereunder for any loss or damage, including counsel fees, which are sustained or incurred by reason of any action upon or inaction by the Company’s behalf Book Entry System or otherwise any Depository. In no event shall Custodian be liable to protect the Local Government, the Bank or otherwise any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement. The Custodian may, with respect to questions of Investments law, apply for and obtain the advice and opinion of counsel and shall be fully protected with respect to anything done or Cash unless omitted by it in good faith and conformity with such advice or opinion. The Local Government and the Bank agree, jointly and severally, to indemnify the Custodian so agrees and unless to hold it harmless against any and all costs, expenses, damages, liabilities or claims, including reasonable fees and expenses of counsel, which the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where may sustain or incur or which may be asserted against the Custodian is required to consider by reason of or engage in further activities, litigation as a result of any action taken or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged omitted by the Custodian at its hourly rate from time to time in effect.
11.3 If connection with operating under this Agreement, except those costs, expenses, damages, liabilities or claims arising out of the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement which, in the opinion negligence or willful misconduct of the Custodian may make it or any agentof its employees or duly appointed agents. This indemnity shall be a continuing obligation of the Local Government and the Bank notwithstanding the termination of this Agreement.
(b) The Custodian shall not be responsible for, delegate or sub-considered to be the custodian liable of, any Securities received by it for deposit in the payment of money or in any other way, and if Account until the Custodian agrees to take any actually receives and collects such action, then the Company expressly acknowledges that any liability in connection with such action taken Securities directly or by the Custodian will be covered by final crediting of the indemnity provided pursuant to Clause 17.1. In addition, Custodian's account on the Custodian may, in its sole discretion, require further indemnification books of the Book Entry System or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agentappropriate Depository. The Custodian will be entitled to reverse any credits made on the Local Government's behalf where such credits have been previously made and the Securities are not finally collected.
(c) The Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and no covenant or obligation shall be liable for implied against the acts or omissions Custodian in connection with this Agreement.
(d) The Local Government's authorized officer, upon reasonable notice, shall have access to the Custodian's books and records maintained with respect to the Local Government's interest in the Account during the Custodian's normal business hours. Upon the reasonable request of the Local Government, copies of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services to books and records shall be provided by it hereunder relating the Custodian to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for Local Government or the avoidance of doubt excluding responsibilities relating to maintaining custody of Local Government's authorized officer at the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegationLocal Government's expense.
11.6 In order (e) The Custodian may enter into subcontracts, agreements and understandings, whenever and on such terms and conditions as it deems necessary or appropriate, to secure all perform its services hereunder; such subcontracts, agreements and understandings may be with third parties and may be with other subsidiaries of The Bank of New York Mellon Corporation or any obligations successor to The Bank of the Company to the CustodianNew York Mellon Corporation or with other persons not a party hereto. No such subcontract, the Company hereby grants to agreement or understanding shall discharge the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Accountits obligations hereunder.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, the Custodian may without notice set-off any sum due to it from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agent.
Appears in 1 contract
Sources: Third Party Custodian Agreement
Concerning the Custodian. 11.1 In the absence of bad faith on the part of the Custodian, the Custodian may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any request, instruction, certificate, opinion or other document furnished to the Custodian, reasonably believed by the Custodian to be genuine and to have been signed or presented by the proper party or parties and conforming to the requirements of this Custodial Agreement; but in the case of any Mortgage Loan Document or other request, instruction, document or certificate which by any provision hereof is specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same in accordance with the requirements of this Custodial Agreement. The Custodian undertakes to perform such duties and only such duties as are specifically set forth in this Custodial Agreement. The Custodian shall not have any duties or responsibilities except those expressly set forth in this Custodial Agreement. The Custodian shall not be required liable for any error of judgment made in good faith by an officer or officers of the Custodian, unless it shall be conclusively determined by a court of competent jurisdiction that the Custodian was negligent in ascertaining the pertinent facts. The Custodian shall not be liable with respect to take any legal action upon taken or omitted to be taken by it in good faith in accordance with any direction of the Company’s behalf Seller or the Buyer given under this Custodial Agreement. None of the provisions of this Custodial Agreement shall require the Custodian to expend or risk its own funds or otherwise to protect incur any liability, financial or otherwise in respect of Investments or Cash unless the Custodian so agrees and unless the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement whichotherwise, in the opinion of the Custodian may make it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it. The Custodian may consult with counsel and the written advice or any written opinion of counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel. Any entity into which the Custodian may appoint such agents as be merged or converted or with which it thinks fitmay be consolidated, including sub-custodiansor any entity resulting from any merger, and agrees that it conversion or consolidation to which the Custodian shall exercise reasonable care in selecting be a party, or any such agent. The entity succeeding to the business of the Custodian will not shall be liable for the acts successor of the Custodian hereunder without the execution or omissions filing of any such agent selected by it paper with reasonable care any parties hereto or for any further act on the solvency part of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services parties hereto except where an instrument or transfer or assignment is required by law to be provided by it hereunder relating effect such succession, anything herein to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliatescontrary notwithstanding. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of comply with its duties under the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this AgreementU.S.A. Patriot Act, the Custodian may without notice set-off any sum due to it shall obtain and verify certain information and documentation from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company other parties hereto, including, but not limited to, such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agentparty’s name, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made address, and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agentidentifying information.
Appears in 1 contract
Concerning the Custodian. 11.1 (a) Custodian shall exercise such reasonable care, diligence, and prudence as a professional custodian for securities would exercise in carrying out its duties and responsibilities under this Agreement. The Custodian shall not be required liable for any loss or damage, including counsel fees, resulting from its action or omission to take act or otherwise, except for any legal loss, damage, claim or expense arising out of its own negligence, bad faith or willful misconduct, and shall have no obligation hereunder for any loss or damage, including counsel fees, which are sustained or incurred by reason of any action upon or inaction by the Company’s behalf Book Entry System or otherwise any Depository. The Custodian may, with respect to protect questions of law, apply for and obtain the advice and opinion of competent counsel and shall be fully protected with respect to anything done or otherwise omitted by it in respect of Investments good faith and conformity with such advice or Cash unless opinion. The Local Government and Bank agree, jointly and severally, to indemnify the Custodian so agrees and unless to hold it harmless against any and all costs, expenses, damages, liabilities or claims, including reasonable fees and expenses of counsel, which the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where may sustain or incur or which may be asserted against the Custodian is required to consider by reason of or engage in further activities, litigation as a result of any action taken or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged omitted by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to connection with operating under this Agreement whichexcept those costs, in expenses, damages, liabilities or claims arising out of the opinion negligence or willful misconduct of the Custodian may make it or any agentof its employees or duly appointed agents. This indemnity shall be a continuing obligation of the Local Government and Bank notwithstanding the termination of this Agreement.
(b) The Custodian shall not be responsible for, delegate or sub-custodian liable for the payment of money or in any other way, and if considered to be the Custodian agrees to take of, any Eligible Collateral received by it for deposit in the Account until the Custodian actually receives and collects such action, then the Company expressly acknowledges that any liability in connection with such action taken Eligible Collateral directly or by the Custodian will be covered by final crediting of the indemnity provided pursuant to Clause 17.1. In addition, Custodian’s account on the Custodian may, in its sole discretion, require further indemnification books of the Book Entry System or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agentappropriate Depository. The Custodian will be entitled to reverse any credits made on the Local Government’s behalf where such credits have been previously made and the Eligible Collateral is not finally collected.
(c) The Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement and no covenant or obligation shall be implied against the Custodian in connection with this Agreement. In no event shall Custodian be liable to Local Government, Bank or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement.
(d) The Local Government’s authorized officer, upon reasonable notice, shall have access to the acts or omissions Custodian’s books and records maintained with respect to the Local Government’s interest in the Account during the Custodian’s normal business hours, Upon the reasonable request of the Local Government, copies of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services to books and records shall be provided by it hereunder relating the Custodian to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for Local Government or the avoidance of doubt excluding responsibilities relating to maintaining custody of Local Government’s authorized officer at the CompanyLocal Government’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegationexpense.
11.6 (e) In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreementperforming hereunder, the Custodian may without notice set-off any sum due to enter into subcontracts, agreements and understandings with third parties (including subsidiaries of The Bank of New York Company, Inc.), whenever and on such terms and conditions as it from the Company against any Cash deems necessary or Investments held by appropriate. No such subcontract, agreement or understanding shall discharge the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodianfrom its obligations hereunder.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agent.
Appears in 1 contract
Sources: Tri Party Collateral Agreement
Concerning the Custodian. 11.1 The Custodian shall not be required responsible in any way for the collection of contributions provided for under the Plan; the purpose or propriety of any distribution or withdrawal made pursuant to Section 5 hereof; any other action or nonaction taken pursuant to the request of the Employer, the Plan Administrator, or a Participant; the validity or effect of the Plan or Custodial Agreement; the qualification of the Plan or this Agreement under the Code or ERISA: or examination of the Plan. The Employer and the legal representative or successor of the Employer, as appropriate, and (with respect to directions from the Participant) the Participant and his legal representative, shall at all times fully indemnify and save harmless the Custodian, its successors and assigns, from any liability arising from distributions so made or actions so taken, and from any and all other liability whatsoever which may arise in connection with this Agreement, except liability arising from the negligence or willful misconduct of the indemnified person. The Custodian shall not he under any duty to take any legal action upon other than as herein specified with respect to the Company’s behalf Custodial Account unless the Employer, Plan Administrator, or otherwise Participant (whichever is appropriate) shall furnish the Custodian with instructions in proper form and such instructions shall have been specifically agreed to protect by the Custodian in writing, or otherwise to defend or engage in any suit with respect of Investments or Cash to the Custodial Account unless the Custodian shall have first agreed in writing to do so agrees and shall have been fully indemnified to its satisfaction. The Custodian may conclusively rely upon and shall be protected in acting upon any written order from the Employer, the Plan Administrator or a Participant, or any other notice, request, consent, certificate of other instrument or paper believed by it to be genuine and to have been properly executed, or upon any opinion of counsel and, so long as it acts in good faith, in taking or omitting to take any action. The Custodian shall not be liable for interest on any cash balances maintained in the Custodial Account in accordance with the provisions of this Custodial Agreement. The Custodian shall not be obligated to receive a contribution, instruction or request from a Participant unless the Custodian same is first fully indemnified in a form satisfactory to it forwarded by the Company.
11.2 Where Employer or Plan Administrator, but it may do no in its discretion. The Employer and the executor, administrator or successors of the Employer, shall have the sole authority to enforce this agreement on behalf of any and all persons having or claiming any interest in the Custodial Account. In order to save the Custodial Account from the expenses which might otherwise be incurred, it is imposed as a condition to the acquisition of any interest in the Custodial Account, and it is hereby agreed, that no person other than the Employer and such other persons as appropriate, may institute or maintain any action or proceeding against the Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by written authority from the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course Employer or a determination of providing any services pursuant to this Agreement whicha court of competent jurisdiction that, in refusing such authority, the opinion of the Custodian may make it Employer or any agent, delegate or sub-custodian liable for the payment of money such other persons have acted fraudulently or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such actionbad faith.
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services to be provided by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, the Custodian may without notice set-off any sum due to it from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agent.
Appears in 1 contract
Sources: Self Employed Retirement Plan (Freedom Mutual Fund)
Concerning the Custodian. 11.1 Section 1. The Custodian shall not be required to take any legal action upon the Company’s behalf or otherwise to protect or otherwise in respect of Investments or Cash unless the Custodian so agrees and unless the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement which, in the opinion of the Custodian may make it or any agent, delegate or sub-custodian liable for the payment exercise of money any discretion or power or for mistakes or errors of judgment nor otherwise in any other way, connection with the Custodianship except for its own willful misconduct or gross negligence. The Custodian shall be indemnified by the Trustees against all costs and if expenses (including amounts of judgments where the adjudication does not involve a dereliction in the performance of its duties) reasonably incurred by or imposed upon the Custodian agrees in connection with or resulting from any action, suit or proceeding to take which it may be made a party by reason of its being or having been the Custodian, except in relation to matters in which a recovery shall be had against it by reason of its having been finally adjudged in such action, suit or proceeding to have been derelict in the performance of its duties as such Custodian. The foregoing right of indemnity shall include reimbursement for the amounts and expenses, including attorneys' fees, paid in settling any such action, then suit or proceeding when settling appears to be in the Company expressly acknowledges that any liability in connection with such action taken interest of the Trust and the Trustees shall determine there has been no dereliction, and shall not be exclusive of other rights to which the Custodian may be entitled as a matter of law. Indemnification for amounts of judgment and amounts paid by the Custodian will be covered to the Trust itself;
Section 2. Any statement or certification by the indemnity provided pursuant to Clause 17.1. In addition, Trustees shall be sufficient if made by the Trustees or by a majority of the Trustees or by their duly appointed agent or agents and may be accepted by the Custodian mayas conclusive evidence of all matters therein contained and the Custodian shall be protected in any action which it may take or refrain from taking by reason of the supposed existence of such fact or matter;
Section 3. The Custodian shall not be responsible for any breach by the Trustees of any covenant contained in this Agreement and Declaration of Trust or any Supplemental Declaration of Trust pursuant thereto;
Section 4. The Custodian shall not be personally liable for any taxes, in its sole discretion, require further indemnification assessments or other assurance governmental charges imposed upon or in respect of the Trust assets or the income therefrom, or upon it as a prerequisite to taking such action.
11.4 In Custodian hereunder, under any present or future law of the performance United States of America or of any services hereunder state, county, municipality or other taxing authority; and the Trustees shall reimburse the Custodian may appoint such agents as for, and indemnify it thinks fit, including subagainst any and all liability imposed upon it by reason of any of the foregoing matters and the trust estate shall be responsible and liable there-custodians, for;
Section 5. The Custodian covenants and agrees that no person or persons nominated by it to hold any Shares of stock' constituting the Trust assets shall (1) pledge, sell or otherwise dispose of such Shares of stock, (2) exercise reasonable care in selecting any right to vote or execute any proxy to vote or consent with respect thereto, except as instructed by the Trustees, or (3) receive, hold or dispose of any income or proceeds from or out of, or distribution upon or with respect to, any such agentShares of stock for his, their or its account or otherwise than for the account of the Custodian;
Section 6. The Custodian will not or any successor Custodian may resign and be liable for discharged of the acts or omissions custodianship hereunder upon giving thirty (30) days written notice thereof to the Trustees; provided that no resignation of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian or any successor Custodian shall take effect until (1) the Trust has delegated certain been completely liquidated and the proceeds of the services to be provided by it hereunder relating liquidation dis- tributed to the processing Shareholders, or (2) a successor Custodian, having the qualifications prescribed in the Agreement and Declaration of subscriptionsTrust, redemptions, sales, purchases has been designated and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliateshas accepted such custodianship;
Section 7. The Company Custodian shall be entitled to receive from the Trustees, and the Manager hereby consent Trustees agree to such delegation.
11.6 In order to secure all and any obligations of the Company pay to the Custodian, all expenses incurred and paid by the Company Custodian in performance of its duties hereunder and compensation for its services as Custodian in such reasonable amounts as may be agreed upon between the Custodian and the Trustees; provided that during the life of the Trust hereby grants created the Custodian, if not otherwise remunerated, may charge against and collect from the income of the Trust, and from the corpus thereof if no income is available, such fees for its services and such reimbursement for its expenses as are provided for in the Agreement and Declaration of Trust, but no such charge or collection shall be made except for services theretofore performed or expenses theretofore incurred.
Section 8. The Custodian or any successor may be removed at any time (a) by an instrument in writing signed by the Trustees, or (b) by a majority vote of the Shareholders present in person or represented by proxy at any annual or special meeting of the Shareholders at which a quorum for the transaction of business is present.
Section 9. In case the Custodian or any successor custodian shall resign or be removed or a vacancy shall otherwise occur in the position of Custodian hereunder, a successor Custodian shall be appointed by the Trustees. Every Successor Custodian shall execute and deliver to its predecessor last in office, and also to the Trustees, an instrument accepting such appointment hereunder, the acceptance of the appointment by any successor Custodian and the receipt by it of the Trust assets shall constitute a full and complete discharge of the predecessor Custodian from any and all obligations hereunder.
Section 10. The Custodian and every successor to the Custodian shall always be a continuing lien bank or trust company having capital,' surplus and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreementundivided profits aggregating at least One Million Dollars ($1,000,000.00), the Custodian or such other sum as may without notice set-off any sum due to it from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or be required by any agentapplicable law, delegate rule or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodianregulation.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agent.
Appears in 1 contract
Sources: Agreement and Declaration of Trust (Babson D L Bond Trust)
Concerning the Custodian. 11.1 In the absence of bad faith on the part of the Custodian, the Custodian may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any request, instruction, certificate, opinion or other document furnished to the Custodian, reasonably believed by the Custodian to be genuine and to have been signed or presented by the proper party or parties and conforming to the requirements of this Custodial Agreement; but in the case of any Mortgage Loan Document or other request, instruction, document or certificate which by any provision hereof is specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same in accordance with the requirements of this Custodial Agreement. The Custodian undertakes to perform such duties and only such duties as are specifically set forth in this Custodial Agreement. The Custodian shall not have any duties or responsibilities except those expressly set forth in this Custodial Agreement. The Custodian shall not be required liable for any error of judgment made in good faith by an officer or officers of the Custodian, unless it shall be conclusively determined by a court of competent jurisdiction that the Custodian was negligent in ascertaining the pertinent facts. The Custodian shall not be liable with respect to take any legal action upon taken or omitted to be taken by it in good faith in accordance with any direction of the Company’s behalf Borrower or the Lender given under this Custodial Agreement. None of the provisions of this Custodial Agreement shall require the Custodian to expend or risk its own funds or otherwise to protect incur any liability, financial or otherwise in respect of Investments or Cash unless the Custodian so agrees and unless the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement whichotherwise, in the opinion of the Custodian may make it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it. The Custodian may consult with counsel and the written advice or any written opinion of counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel. Any entity into which the Custodian may appoint such agents as be merged or converted or with which it thinks fitmay be consolidated, including sub-custodiansor any entity resulting from any merger, and agrees that it conversion or consolidation to which the Custodian shall exercise reasonable care in selecting be a party, or any such agent. The entity succeeding to the business of the Custodian will not shall be liable for the acts successor of the Custodian hereunder without the execution or omissions filing of any such agent selected by it paper with reasonable care any parties hereto or for any further act on the solvency part of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services parties hereto except where an instrument or transfer or assignment is required by law to be provided by it hereunder relating effect such succession, anything herein to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliatescontrary notwithstanding. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of comply with its duties under the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this AgreementU.S.A. Patriot Act, the Custodian may without notice set-off any sum due to it shall obtain and verify certain information and documentation from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company other parties hereto, including, but not limited to, such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agentparty's name, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made address, and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agentidentifying information.
Appears in 1 contract
Concerning the Custodian. 11.1 The acceptance by the Custodian of its appointment hereunder is expressly subject to the following terms, which shall govern and apply to each of the terms and provisions of this Agreement (whether or not so stated therein or herein).
(a) The Custodian shall have no duties, obligations or responsibilities under this Agreement or with respect to the Mortgage Files or the Mortgage Loan Documents except for such duties, obligations or responsibilities as are expressly and specifically set forth in this Agreement as duties obligations or responsibilities on its part to be performed, and the duties obligations and responsibilities of the Custodian shall be determined solely by the express provisions of this Agreement. No implied duties, obligations or responsibilities shall be read into this Agreement against, or on the part of, the Custodian, including responsibilities for the Owner’s compliance with the 1940 Act. Any permissive right of the Custodian to take any action hereunder shall not be construed as a duty. In the event that any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take action or refrain from acting.
(b) The Custodian makes no representations as to and shall not be responsible for or required to verify (A) the validity, legality, enforceability, due authorization, effectiveness, recordability, insurability, sufficiency, value, form, substance, or genuineness of any of the documents contained in any Mortgage File or (B) the collectability, validity, transferability, insurability, value, effectiveness, perfection, priority or suitability of any Mortgage File or any document contained therein.
(c) The Custodian shall have no responsibilities or duties with respect to any Mortgage File while such Mortgage File is not in its possession.
(d) The Custodian may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, statement, certificate, request, waiver, consent, opinion, report, receipt or other paper or document furnished to it in accordance with this Agreement, not only as to its due execution and validity, but also as to the truth and accuracy of any information therein contained, which it in good faith believes to be genuine and signed or presented by the proper person (which in the case of any instruction from or on behalf of the Owner and/or the Administrator shall be an Authorized Person). The Custodian shall be entitled to presume the genuineness and due authority of any signature appearing thereon. The Custodian shall not be required bound to take make any legal action upon independent investigation into the Company’s behalf facts or otherwise to protect or otherwise matters stated in respect of Investments or Cash unless the Custodian so agrees and unless the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider or engage in further activitiesany such notice, litigation instruction, statement, certificate, request, waiver, consent, opinion, report, receipt or other exceptional matterspaper or document, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement whichprovided, in the opinion of the Custodian may make it or any agenthowever, delegate or sub-custodian liable for the payment of money or in any other way, and that if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken form thereof is specifically prescribed by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services to be provided by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, the Custodian shall examine the same to determine whether it substantially conforms on its face to the requirements set forth herein.
(e) Neither the Custodian nor any of its directors, officers or employees shall be liable to anyone for any error of judgment, or for any act done or step taken or omitted to be taken by it (or any of its directors, officers of employees), or for any mistake of fact or law, or for anything which it may without notice setdo or refrain from doing in connection herewith, unless such action constitutes gross negligence, willful misconduct or bad faith of the Custodian.
(f) The Custodian shall not be liable for any action taken by it in good faith and reasonably believed by it to be within powers conferred upon it, or taken by it pursuant to any direction or instruction received by it in accordance with this Agreement, or omitted to be taken by it by reason of the lack of direction or instruction required hereby for such action.
(g) The Custodian may consult with, and obtain advice from, legal counsel selected in good faith, with respect to any question as to any of the provisions hereof or its duties hereunder, or any matter relating hereto, and the opinion or advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered, or omitted by the Custodian in good faith in accordance with the advice or opinion of such counsel. The reasonable costs and expenses of such advice or opinion shall be reimbursed by the Owner pursuant to Section 10 hereof.
(h) No provision of this Agreement shall require the Custodian to expend or risk its own funds, take any action hereunder (or omit to take any action) or otherwise incur any financial liability in the performance of its duties under this Agreement if it shall have grounds for believing that repayment of such funds or indemnity satisfactory to the Custodian is not assured to it.
(i) The Custodian may act or exercise its duties or powers hereunder through agents or attorneys; provided, that the Custodian shall be responsible for the performance of all such duties and powers hereunder as if the Custodian were performing such duties or powers itself. Notwithstanding the foregoing, the Custodian may perform ministerial duties (i.e. minor non-off substantive procedural or mechanical acts not involving the exercise of judgment or discretion) hereunder through agents or attorneys-in-fact appointed with due care and shall not be liable or responsible for the actions or omissions of any sum due to it such agent or attorney-in-fact; provided that the Custodian shall be liable or responsible hereunder for any actions or omissions of an agent or attorney-in-fact as if taken by the Custodian hereunder, as applicable, in connection with any non-ministerial duties.
(j) If the Custodian shall request instructions from the Company against Owner with respect to any Cash act, action or Investments failure to act in connection with this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Owner and/or the Administrator without incurring any liability therefor to the Owner, or any other Person.
(k) In no event shall the Custodian or its directors, affiliates, officers, agents and employees be held liable for any lost profits or diminution in value, or exemplary, punitive, special, indirect or consequential damages of any kind resulting from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility of such damages.
(l) The Custodian shall not be deemed to have notice of any fact, claim or demand with respect hereto unless actually known by a Responsible Officer of the Custodian or unless (and then only to the extent received) in writing by the Custodian in accordance with Section 13 herein and specifically referencing this Agreement. Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice of and shall not be bound by any of the terms and conditions of any other document or agreement unless the Custodian is a signatory party to that document or agreement.
(m) The Custodian shall not be responsible for the preparation or filing of any reports or returns relating to federal, state or local income taxes with respect to this Agreement, other than in respect of the Custodian’s compensation or for reimbursement of expenses; shall be under no obligation to verify the authenticity of any signature on any of the documents received or examined by it in connection with this Agreement or the authority or capacity of any person to execute or issue such document, except as provided in Section 8 of this Agreement with respect to Authorized Representatives; shall have no duty to ascertain whether or not any cash amount or payment has been received by the Owner or any third person and shall not be required to perform any cash movement functions in relation to this Agreement; and shall not be required to value or produce a report detailing the value of the Mortgage Files.
(n) Nothing in this Agreement shall be deemed to impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage File is or may be held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at hereunder, and (ii) any jurisdiction where its ownership of property or conduct of business requires such reasonable intervals as the Company may require qualification and where failure to qualify could have a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by material adverse effect on the Custodian or its agents for property or business or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent ability of the Custodian to perform its duties hereunder. The provisions of this Section 14 shall survive the account shall state termination of this Agreement and the name and address resignation or removal of and indicate the Investments held by such agentCustodian.
Appears in 1 contract
Sources: Custody Agreement (First Eagle Real Estate Debt Fund)
Concerning the Custodian. 11.1 The Custodian shall not assign, transfer, pledge or grant a security interest in any of its rights, benefits or privileges hereunder, nor shall the Custodian delegate or appoint any other person or entity to perform or carry out any of its duties, responsibilities or obligations under this Agreement, other than a wholly owned subsidiary of the Custodian, unless Custodian has obtained the written consent of the Trustee and the Guarantor, with the approval of the Depositor. It is understood and agreed that regardless of whether the Custodian has obtained the written consent of the Trustee, with the approval of the Depositor, as provided in the foregoing sentence, any such delegation or appointment shall in no way reduce, eliminate or otherwise modify or affect the Custodian’s obligations hereunder. Any act or instrument purporting to effect any such assignment, transfer, pledge, grant, delegation or appointment shall be void. No representations, warranties, covenants (other than those expressly made by the Custodian in this Agreement) or obligations of the Custodian shall be implied with respect to this Agreement or the Custodian’s services hereunder. Without limiting the generality of the foregoing, and any provision in this Agreement to the contrary notwithstanding, the Custodian:
A. shall have no duties or obligations other than those specifically set forth herein or as may subsequently be agreed in writing by the parties hereto and shall use the same degree of care and skill as is reasonably expected of financial institutions acting in comparable capacities;
B. will be regarded as making no representations and having no responsibilities (except as expressly set forth herein) as to the validity, sufficiency, value, genuineness, ownership or transferability of any Mortgage Loan, and will not be required to and will not make any representations as to the validity, value or genuineness of any Mortgage Loan;
C. shall not be obligated to take any legal action hereunder that might in its judgment involve any expense or liability unless it has been furnished with reasonable indemnity;
D. may rely on and shall be protected in acting in good faith upon any certificate, instrument, opinion, notice, letter, telegram or other document, or any security, delivered to it and in good faith believed by it to be genuine and to have been signed by the proper party or parties;
E. may rely on and shall be protected in acting in good faith upon the Company’s behalf or otherwise written instructions, of Trustee and such employees and representatives of the Trustee as such party may hereinafter designate in writing;
F. may consult counsel satisfactory to protect or otherwise it (including counsel for the Trustee) and the opinion of such counsel shall be full and complete authorization and protection in respect of Investments any action taken, suffered or Cash unless the Custodian so agrees and unless the Custodian is first fully indemnified omitted by it hereunder in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time good faith and in the absence furtherance of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement whichduties hereunder, in accordance with the opinion of the Custodian may make it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action.counsel;
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it G. shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts or omissions any error of any such agent selected by it with reasonable care judgment, or for any act done or step taken or omitted by it, in good faith, or for any mistake of fact or law, or for anything that it may do or refrain from doing in connection therewith, except in the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain case of the services Custodian’s negligence, lack of good faith or willful misconduct; and
H. shall not be held liable for any special, indirect, punitive or consequential damages resulting from any action taken or omitted to be provided by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, the Custodian may without notice set-off any sum due to it from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held taken by it or by any agent, delegate them hereunder or sub-custodian until payment in full by connection herewith even if advised of the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date possibility of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agentdamages.
Appears in 1 contract
Sources: Pooling Agreement (Harborview Mortgage Loan Trust 2006-Cb1)
Concerning the Custodian. 11.1 (a) Each Interested Party acknowledges and agrees that the Custodian (i) shall not be responsible for any of the agreements referred to or described herein (including without limitation any Issuer’s Declaration or Indenture relating to such Issuer’s Securities), or for determining or compelling compliance therewith, and shall not otherwise be bound thereby, (ii) shall be obligated only for the performance of such duties as are expressly and specifically set forth in this Agreement on its part to be performed, each of which are ministerial (and shall not be construed to be fiduciary) in nature, and no implied duties or obligations of any kind shall be read into this Agreement against or on the part of the Custodian, (iii) shall not be obligated to take any legal or other action hereunder which might in its judgment involve or cause it to incur any expense or liability unless it shall have been furnished with acceptable indemnification, (iv) may rely on and shall be protected in acting or refraining from acting upon any written notice, instruction, instrument, statement, certificate, request or other document furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper person, and shall have no responsibility for determining the accuracy thereof, and (v) may consult counsel satisfactory to it, including in-house counsel, and the opinion or advice of such counsel in any instance shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the opinion or advice of such counsel.
(b) The Custodian shall not be required liable to take any legal action upon the Company’s behalf or otherwise to protect or otherwise in respect of Investments or Cash unless the Custodian so agrees and unless the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take anyone for any action in the course of providing any services pursuant to this Agreement which, in the opinion of the Custodian may make it taken or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services omitted to be provided taken by it hereunder relating to except in the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody case of the CompanyCustodian’s Cash and Investments under this Agreement) to one negligence or willful misconduct in breach of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, . In no event shall the Custodian may without notice setbe liable for indirect, punitive, special or consequential damage or loss (including but not limited to lost profits) whatsoever, even if the Capstead Mortgage Corporation/Placement Agreement Custodian has been informed of the likelihood of such loss or damage and regardless of the form of action.
(c) The Custodian shall have no more or less responsibility or liability on account of any action or omission of any book-off any sum due to it from the Company against any Cash entry depository, securities intermediary or Investments held other subcustodian employed by the Custodian and shall have the power to pay out of the assets of the Company than any such amounts due to it under this Agreement. The Company expressly acknowledges such right of setbook-off and that the Custodian shall have the right to retain all Investments held by it entry depository, securities intermediary or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company other subcustodian has to the Custodian, except to the extent that such action or omission of any book-entry depository, securities intermediary or other subcustodian was caused by the Custodian’s own negligence, bad faith or willful misconduct in breach of this Agreement.
11.8 (d) The recitals contained herein shall be taken as the statements of each of the Issuers and the Purchaser, and the Custodian assumes no responsibility for the correctness of the same. The Custodian makes no representations as to the validity or sufficiency of this Agreement or the Securities. The Custodian shall deliver to not be accountable for the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken use or application by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf any of the Company Issuers or otherwise pursuant to the terms hereof. If Investments are held by an agent Purchaser of any Securities or the Custodian the account shall state the name and address proceeds of and indicate the Investments held by such agentany Securities.
Appears in 1 contract
Concerning the Custodian. 11.1 (a) The Custodian shall not be required to take any legal action upon the Company’s behalf have no duties or otherwise to protect responsibilities except those that are specifically set forth herein, it being expressly understood that no duties or otherwise in respect of Investments or Cash unless the Custodian so agrees and unless the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees obligations shall be subject to further negotiation at implied against the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement which, in the opinion of the Custodian may make it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1Custodian. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified Provided that the Custodian has delegated certain followed the terms of this Agreement or the Issuer’s instructions, the Custodian shall be under no responsibility or duty with respect to the disposition of any Mortgage Notes, Mortgages and Assignments of Mortgage while such Mortgage Notes, Mortgages or Assignments of Mortgage are not in its possession. If the Custodian shall request instructions from the Issuer with respect to any act, action or failure to act in connection with this Agreement other than an act, action or failure to act which is provided for or required of the services to be provided Custodian by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, the Custodian may without notice set-off any sum due shall be entitled to it refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received written instructions from the Company Issuer without incurring any liability therefor to the Issuer, the Servicer, the Sellers or any other Person.
(b) If the Custodian shall at any time receive conflicting instructions from the Issuer, the Sellers or the Servicer with respect to any of the Mortgage Notes, Mortgages and Assignments of Mortgage and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Custodian shall follow the instructions of the Issuer and shall not be liable to the Sellers or the Servicer as a result. If the Custodian shall at any time receive conflicting instructions from the Issuer, the Sellers or the Servicer and the Collateral Agent with respect to any of the Mortgage Notes, Mortgages and Assignments of Mortgage and the conflict between such instructions cannot be resolved by reference to the terms of this Agreement, the Custodian shall follow the instructions of the Collateral Agent and shall not be liable to the Issuer or the Sellers as a result. The Custodian shall not be responsible to the Issuer or any other party for recitals, statements or warranties or representations of the Sellers or the Servicer, the Issuer or the Collateral Agent contained herein, or in any other document or be bound to ascertain or inquire as to the performance or observance of any of the terms of this Agreement or any other agreement on the part of any party other than itself.
(c) None of the Custodian, its Affiliates or any of their respective directors, officers, agents, attorneys, employees, successors or assigns shall be liable for any action taken or omitted to be taken by it or them hereunder or in connection herewith in good faith and believed by it or them to be within the purview of this Agreement, except for its or their own gross negligence, fraud, bad faith or willful misconduct. Notwithstanding the foregoing sentence, in no event shall the Custodian or its Affiliates, directors, officers, agents and employees be held liable for any special, indirect, punitive or consequential damages resulting from any action taken or omitted to be taken by it or them hereunder or in connection herewith even if advised of the possibility of such damages.
(d) In the absence of bad faith on the part of the Custodian, the Custodian may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any request, instructions, certificate, opinion or other document furnished to the Custodian reasonably believed by the Custodian to be genuine and to have been signed or presented by the proper party or parties and conforming to the requirements of this Agreement absent notice to the contrary. Absent written notice to the contrary from the Issuer, the Collateral Agent, the Servicer, the Sellers, any SLN Placement Agent or any Swap Counterparty, the Custodian may conclusively rely upon the validity of documents delivered to it, without investigation as to their authenticity or legal effectiveness, and the Servicer and each Seller will hold the Custodian harmless from any claims which may arise or be asserted against the Custodian because of the invalidity of any Cash such documents, or Investments their failure to fulfill their intended purpose. Notwithstanding the foregoing, it is expressly understood that in the case of any Mortgage Note, Mortgage, Assignment of Mortgage or other document or other request, instruction, document or certificate which by any provision hereof is specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same to determine whether or not such document conforms to the requirements of this Agreement (which examination, in the case of any Mortgage Note, Mortgage, or Assignment of Mortgage, shall be in accordance with the Review Procedure), and to make the Certifications required by Section 4 of this Agreement.
(e) The Custodian shall not be responsible for preparing or filing any reports or returns relating to federal, state or local incomes taxes with respect to this Agreement, other than for the Custodian’s compensation or for reimbursement of expenses.
(f) Any other provision of this Agreement to the contrary notwithstanding, the Custodian shall have no notice, and shall not be bound by any of the terms and conditions of, any other document or agreement executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement unless the Custodian is a signatory party to that document or agreement. Notwithstanding the foregoing sentence, the Custodian shall be deemed to have notice of the terms and conditions (including, without limitation, definitions not otherwise set forth in full in this Agreement) of other documents and agreements executed or delivered in connection with, or intended to control any part of, the transactions anticipated by or referred to in this Agreement, to the extent that such terms and provisions are referenced, or are incorporated by reference, into this Agreement only as long as the Servicer shall have provided a copy of any such document or agreement to the Custodian. The Servicer shall provide the Custodian with an executed copy of the Mortgage Loan Purchase and Servicing Agreement and the Security Agreement.
(g) The duties and obligations of the Custodian shall only be such as are expressly set forth in this Agreement or as set forth in a written amendment to this Agreement executed by the parties hereto or their successors and assigns. In the event that any provision of this Agreement implies or requires that action or forbearance be taken by a party, but is silent as to which party has the duty to act or refrain from acting, the parties agree that the Custodian shall not be the party required to take the action or refrain from acting. In no event shall the Custodian have any responsibility to ascertain or take action except as expressly provided herein.
(h) Nothing in this Agreement shall be deemed to impose on the Custodian any duty to qualify to do business in any jurisdiction, other than (i) any jurisdiction where any Mortgage Loan File is or may be held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at hereunder, and (ii) any jurisdiction where its ownership or property or conduct of business requires such reasonable intervals as the Company may require qualification and where failure to qualify could have a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by material adverse effect on the Custodian or its agents property or business or on the ability of the Custodian to perform its duties hereunder.
(i) Under no circumstances shall the Custodian be obligated to verify the authenticity of any signature on any of the documents received or examined by it in connection with this Agreement or the authority or capacity of any person to execute or issue such document, nor shall the Custodian be responsible for the value, form, substance, validity, perfection (other than by taking and continuing possession of the Mortgage Notes, Mortgages and Assignments of Mortgage), recordability, priority, effectiveness or enforceability of any such documents, nor shall the Custodian be under a duty to inspect, review or examine the documents to determine whether they are appropriate for the represented purpose or that they have been actually recorded or that they are other than what they purport to be on their face.
(j) The Custodian shall have no duty to ascertain whether or not any cash amount or payment has been received by a Seller, the Servicer or any third person.
(k) The Custodian is not required to produce a borrowing base report or any other report detailing the value of the Mortgage Loans.
(l) The Custodian is not required to perform any cash movement and reconciliation functions on behalf of the Company Sellers, the Servicer or otherwise pursuant the Issuer in relation to this Agreement.
(m) Any Person into which the Custodian may be merged or converted, or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Custodian shall be a party, or any Person succeeding to the terms hereof. If Investments are held by an agent business of the Custodian, shall be the successor of the Custodian hereunder, without the account execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
(n) The Custodian may delegate any of its duties under this Agreement to any of its agents, attorneys-in-fact, or Affiliates selected with due care, and shall state the name and address of and indicate the Investments held by not be liable for their gross negligence or willful misconduct. Any such agent, attorney-in-fact, or Affiliate (and such Affiliate’s directors, officers, agents and employees) which performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver and other protective provisions to which the Custodian is entitled under this Agreement.
(o) 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 the Custodian in good faith and in accordance therewith.
(p) The Custodian shall not be responsible for delays or failures in performance resulting from acts beyond its control. Such acts shall include, but not be limited to, acts of God, strikes, lockouts, riots, acts of war or terrorism, epidemics, nationalization, expropriation, currency restrictions, governmental regulations superimposed after the fact, fire, communication line failures, computer viruses, power failures, earthquakes or other disasters.
(q) Notwithstanding the foregoing limitations in this Section 18, nothing in this Agreement which references the “Affiliates” of the Custodian, shall constitute a limitation on the obligations of the Collateral Agent arising under this Agreement or any of the other Program Documents.
(r) None of the provisions of this Agreement shall require the Custodian to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it.
Appears in 1 contract
Concerning the Custodian. 11.1 (a) The Custodian shall have no duties or responsibilities except those specifically set forth herein. The Custodian shall have no responsibility nor duty with respect to any Mortgage Files while not in its possession. If the Custodian requests instructions from the Buyer with respect to any act, action or failure to act in connection with this Agreement, the Custodian shall be entitled to refrain from taking such action and continue to refrain from acting unless and until the Custodian shall have received Written Instructions from the Buyer with respect to a Mortgage File without incurring any liability therefore to the Buyer, any Seller or any other Person.
(b) The Custodian shall not be required liable for any action or omission to take any legal action upon the Company’s behalf act hereunder except for its own negligence or otherwise to protect lack of good faith or otherwise in respect of Investments or Cash unless willful misconduct. In no event shall the Custodian so agrees and unless have any responsibility to ascertain or take action except as expressly provided herein.
(c) Without limiting the generality of the foregoing, the Custodian is first may conclusively rely upon and shall be fully indemnified protected in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider or engage acting in further activitiesgood faith upon any Written Instructions, litigation notice or other exceptional matters, additional fees shall communication from the Buyer or Sellers received by it and which it reasonably believes to be subject genuine and duly authorized with respect to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant all matters pertaining to this Agreement whichand its duties hereunder.
(d) The Custodian shall not be liable to the Sellers, the Buyer, or any other Person with respect to any action taken or not taken by it in good faith in the opinion performance of its obligations under this Agreement. The obligations of the Custodian may make it shall be determined solely by the express provisions of this Agreement. No representation, warranty, covenant, agreement, obligation or any agentduty of the Custodian shall be implied with respect to this Agreement or the Custodian's services hereunder.
(e) The Custodian shall be under no duty or obligation to inspect, delegate review or sub-custodian liable examine the Mortgage Files to determine that the contents thereof are genuine, enforceable or appropriate for the payment represented purpose or that they have been actually recorded, are in the proper form for recordation or that they are not other than what they purport to be on their face.
(f) No provision of money or in any other way, and if this Agreement shall require the Custodian agrees to take any such action, then the Company expressly acknowledges that any expend or risk its own funds or otherwise incur financial liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification (other than expenses or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services liabilities otherwise required to be provided incurred by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement) in the performance of its duties under this Agreement if it shall have a good faith belief that repayment of such funds or indemnity satisfactory to it is not reasonably assured to it.
(g) The Custodian shall use the same degree of care and skill as is reasonably expected of financial institutions acting in comparable capacities which are held to a standard of care of ordinary negligence, and this Section 20 shall not be interpreted to impose upon the Custodian a higher standard of care than that set forth in this sentence.
(h) In order to comply with its duties under the U.S.
A. Patriot Act, the Custodian may without notice set-off any sum due to it shall obtain and verify certain information and documentation from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company other parties hereto, including, but not limited to, such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agentparties' names, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made addresses, and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agentidentifying information.
Appears in 1 contract
Concerning the Custodian. 11.1 1. The Custodian shall exercise the standard of care of a professional custodian engaged in the banking or trust company industry and having professional expertise in financial and securities processing transactions and custody. Except as hereinafter provided, neither the Custodian nor its nominees nor its agents (which the Custodian is hereby authorized to retain to perform certain of its functions hereunder and which may include subsidiaries or affiliates of the Custodian) shall be liable for any lose or damage, including counsel fees, resulting from its action or omission to act or otherwise, except for any such loss or damage arising out of its own negligence or willful misconduct. The Custodian may, with respect to questions of law, apply for and obtain the advice and opinion of counsel to the Fund or of its own counsel, at the expense of the Fund, and shall by fully protected with respect to anything done or omitted by it in good faith in conformity with such advice or opinion. The custodian shall be liable to the Fund for any loss of damage resulting from the use of the Book-Entry System or any Depository arising by reason of any negligence or willful misconduct on the part of the Custodian or any of its employees. In the event that the Custodian should determine that there has been any lose or damage involving Securities of the Fund deposited with any Depository, the Custodian shall take such action with respect to its rights and remedies, if any, against such Depository as the Custodian shall reasonably deem appropriate. The Custodian shall credit to the Fund's account hereunder the amount, if any, as determined by the Custodian, of the payments, if any, recovered by the Custodian from, or for the account of, any Depository as reimbursement for the lose of, or damage to, any Securities deposited by the Custodian hereunder with said Depository. With respect to any lose or damage which the Custodian may be liable hereunder, the Custodian shall be liable to the Fund only to the extent of the Fund's general damages, determined based on the market value of the property which is the subject of the lose at the date of discovery of the loss. General damages shall mean only those damages as directly and necessarily result from the Custodian's negligence or willful misconduct without reference to any special conditions or circumstances of the Fund's Series or of any transaction.
2. Without limiting the generality of the foregoing, the Custodian shall be under no obligation to inquire into, and shall not be liable for:
(a) The validity of the issue of any Securities purchased by or for the Fund, the legality of the purchase thereof, of the property of the amount paid therefor;
(b) The legality of the sale of any Securities by or for the Fund, or the propriety of the amount for which the same are sold;
(c) The legality of the issue or sale of any Shares, or the sufficiency of the amount to be received therefor;
(d) The legality of the redemption of any Shares, of the propriety of the amount to be paid therefor;
(e) The legality of the declaration or payment of any dividend by the Fund;
(f) The legality of any borrowing by the Fund using Securities as collateral;
3. The Custodian shall not be required liable for, or considered to take any legal action upon the Company’s behalf or otherwise to protect or otherwise in respect of Investments or Cash unless be the Custodian so agrees and unless of, any money, whether or not represented by any check, draft, or other instrument for the payment of money, received by it on behalf of the Fund until the Custodian is first fully indemnified in a form satisfactory to it actually receives and collects such money directly or by the Company.
11.2 Where final crediting of the Custodian is required account representing the Securities belonging to consider or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and Fund which compose a portion of the fungible bulk of Securities registered in the absence name of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (or its nominee) or in the name of the Book-Entry System or the Depository or their successor or successors, or their nominee or nominees, as shown on the Custodian's account on the books of the Book-Entry system or the Depository.
4. The Custodian shall not be under any capacity) is requested duty or obligation to take action to effect collection of any amount due to the Fund from the transfer agent of the Fund nor to take any action in to effect payment or distribution by the course of providing any services pursuant to this Agreement which, in the opinion transfer agent of the Fund of any amount paid by the Custodian may make it to the transfer agent of the Fund in accordance with this Agreement.
5. The Custodian shall not be under any duty or obligation to take action to effect collection of any agentamount, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees Securities upon which such amount is payable are in default, or if payment is refused after due demand or presentation, unless and until (1) it shall be directed to take such action by a Certificate, (ii) it shall be assured to its satisfaction of reimbursement of its costs and expenses in connection with any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant and (iii) it shall agree to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking take such action.
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent6. The Custodian will Shall not be liable under any duty or obligation to ascertain whether any Securities at any time delivered to or held by it for the acts or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain account of the services Fund and specifically allocated to a Series are such as properly may be provided by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, the Custodian may without notice set-off any sum due to it from the Company against any Cash or Investments held by the Custodian Fund and shall have allocated to such Series under the power to pay out provisions of the assets its Articles of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off Incorporation and that the Custodian shall have the right to retain all Investments held by it or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodianits then current prospectus.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agent.
Appears in 1 contract
Sources: Custody Agreement (Canada Life of America Series Fund Inc)
Concerning the Custodian. 11.1 The b. Buyer hereby agrees to indemnify and hold the Custodian shall not be required to take any legal action upon the Company’s behalf or otherwise to protect or otherwise harmless in respect of Investments any and all losses, costs, expenses, liabilities, judgments, assessments, penalties, damages, deficiencies, suits, actions, proceedings, or Cash unless the Custodian so agrees demands, and unless the Custodian is first fully indemnified in a form satisfactory reasonable attorneys' fees and expenses incident thereto resulting from any action or refusal to it by the Company.
11.2 Where the Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged act by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement which, in the opinion of the Custodian may make it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services hereunder the Custodian may appoint such agents as it thinks fit, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services to be provided by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms instructions of this Agreement, Buyer. The Custodian shall promptly notify Buyer of any asserted liability for which the Custodian may without notice set-off would be entitled to indemnification by Buyer, and Buyer and its legal representatives shall have, at Buyer's election, a right to compromise or defend any sum due to it such matter involving asserted liability, through counsel of its own choosing, at its expense; provided, however, that Buyer shall indemnify the Custodian against any damage resulting from the Company against failure to pay any Cash or Investments held by claims on all such litigation pending. In the event Buyer undertakes to compromise and defend any such liability, Buyer shall notify the Custodian in writing promptly of its intention to do so, and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have cooperate with Buyer and its counsel in the right to retain all Investments held by it compromising of or by the defending against any agentsuch liabilities or claims, delegate at the expense of Buyer. The indemnification shall survive the resignation or sub-custodian until payment in full by the Company termination of all sums owing by the Company to the Custodian.
11.8 c. The Sellers, jointly and severally, hereby agree to indemnify and hold the Custodian harmless in respect of any and all losses, costs, expenses, liabilities, judgments, assessments, penalties, damages, deficiencies, suits, actions, proceedings or demands, and reasonable attorneys' fees and expenses incident thereto resulting from any action or refusal to act by the Custodian in accordance with the instructions of any Seller or Representative. The Custodian shall promptly notify the Representative of any asserted liability for which the Custodian would be entitled to indemnification by the Sellers, and the Sellers and their legal representatives shall have, at the election of the Representative, a right to compromise or defend any such matter involving asserted liability, through counsel of their own choosing, at their expense; provided, however, that the Sellers shall indemnify the Custodian against any damage resulting from the failure to pay any claims on all such litigation pending. In the event the Sellers undertake to compromise or defend any such liability, the Representative shall notify the Custodian in writing promptly of their intention to do so, and the Custodian shall cooperate with the Sellers and their counsel in the compromising of or the defending against any such liabilities or claims, at the expense of the Sellers. The indemnification shall survive the resignation or termination of the Custodian.
d. The Escrow Agent may resign at any time by giving thirty (30) days written notice of such resignation to Buyer and Representative. If no successor Escrow Agent has been named at the expiration of the thirty (30) day period, the Escrow Agent shall have no further obligation hereunder except to hold the Escrow Fund as a depository. Upon notification by Buyer of the appointment of the successor, the Escrow Agent shall promptly deliver the Escrow Fund and all materials in its possession relating to the Company Escrow Fund to such successor, and the duties of the resigning Escrow Agent shall thereupon in all respects terminate, and it shall be released and discharged from time to time at such reasonable intervals all further obligations hereunder. Similarly, the Escrow Agent may be discharged from its duties as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to Escrow Agent under this Agreement since upon thirty (30) days written notice from Buyer and Representative and upon payment of any and all fees due to Escrow Agent. In such event, the last date such an account was provided together with a list Escrow Agent shall be entitled to rely on instructions from Buyer as at to the date of such account of all Investments disposition and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf delivery of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian the account shall state the name and address of and indicate the Investments held by such agentEscrow Fund.
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Concerning the Custodian. 11.1 The Custodian shall be paid as compensation for its services pursuant to this Agreement such compensation as may from time to time be agreed upon in writing between the two parties. The Custodian shall not be required liable for any action taken in good faith upon any certificate herein described or a certified copy of any resolution of the Trustees of the Trust, and may rely on the genuineness of any such document which it may in good faith believe to take any legal action upon the Company’s behalf or otherwise have been validly executed. The Trust agrees to protect or otherwise in respect of Investments or Cash unless indemnify and hold harmless the Custodian so agrees and unless the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider its nominee from all taxes, charges, expenses, assessments, claims and liabilities (including counsel fees) incurred or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement which, in the opinion of the Custodian may make assessed against it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability its nominee in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services hereunder this Agreement, except such as may arise from the Custodian may appoint such agents as it thinks fitCustodian's or its nominee's own negligent action, including sub-custodians, and agrees that it shall exercise reasonable care in selecting any such agentnegligent failure to act or willful misconduct. The Custodian will not be liable for the acts or omissions of is authorized to charge any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain account of the services to be provided by it hereunder relating Trust for such items. The Custodian, however, expressly agrees that, notwithstanding anything to the processing of subscriptionscontrary herein, redemptionsor in law, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for that it will look solely to the avoidance of doubt excluding responsibilities relating to maintaining custody assets of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and Trust for any obligations of the Company Trust hereunder and nothing herein shall be construed to create any personal liability of any Trustee or any shareholder of the Trust. The Custodian expressly acknowledges that the Declaration of Trust establishing the INVESCO Treasurer's Series Trust, dated January 27, 1988, a copy of which, together with all amendments thereto (the "Declaration"), is on file in the office of the Secretary of the Commonwealth of Massachusetts, provides that the name INVESCO Treasurer's Series Trust refers to the CustodianTrustees under the Declaration collectively as Trustees, the Company hereby grants to the Custodian a continuing lien but not as individuals or personally; and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreementno Trustee, the Custodian may without notice set-off any sum due to it from the Company against any Cash shareholder, officer, employee or Investments held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that the Custodian shall have the right to retain all Investments held by it or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent of the Custodian INVESCO Treasurer's Series Trust shall be held to any personal liability, nor shall resort be had to their private property for the account satisfaction of any obligation or claim or otherwise, in connection with the affairs of said INVESCO Treasurer's Series Trust, but the "Trust Property" only shall state the name and address of and indicate the Investments held by such agentbe liable.
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Sources: Custodian Agreement (Invesco Treasurers Series Trust)
Concerning the Custodian. 11.1 In the absence of bad faith on the part of the Custodian, the Custodian may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any request, instruction, certificate, opinion or other document furnished to the Custodian, reasonably believed by the Custodian to be genuine and to have been signed or presented by the proper party or parties and conforming to the requirements of this Custodial Agreement; but in the case of any Mortgage Loan Document or other request, instruction, document or certificate which by any provision hereof is specifically required to be furnished to the Custodian, the Custodian shall be under a duty to examine the same in accordance with the requirements of this Custodial Agreement. The Custodian undertakes to perform such duties and only such duties as are specifically set forth in this Custodial Agreement. The Custodian shall not have any duties or responsibilities except those expressly set forth in this Custodial Agreement. The Custodian shall not be required liable for any error of judgment made in good faith by an officer or officers of the Custodian, unless it shall be conclusively determined by a court of competent jurisdiction that the Custodian was grossly negligent in ascertaining the pertinent facts. The Custodian shall not be liable with respect to take any legal action upon taken or omitted to be taken by it in good faith in accordance with any direction of the Company’s behalf Borrower or the Lender given under this Custodial Agreement. None of the provisions of this Custodial Agreement shall require the Custodian to expend or risk its own funds or otherwise to protect incur any liability, financial or otherwise in respect of Investments or Cash unless the Custodian so agrees and unless the Custodian is first fully indemnified in a form satisfactory to it by the Company.
11.2 Where the Custodian is required to consider or engage in further activities, litigation or other exceptional matters, additional fees shall be subject to further negotiation at the relevant time and in the absence of contrary agreement additional fees shall be charged by the Custodian at its hourly rate from time to time in effect.
11.3 If the Custodian (in any capacity) is requested to take any action in the course of providing any services pursuant to this Agreement whichotherwise, in the opinion of the Custodian may make it or any agent, delegate or sub-custodian liable for the payment of money or in any other way, and if the Custodian agrees to take any such action, then the Company expressly acknowledges that any liability in connection with such action taken by the Custodian will be covered by the indemnity provided pursuant to Clause 17.1. In addition, the Custodian may, in its sole discretion, require further indemnification or other assurance as a prerequisite to taking such action.
11.4 In the performance of any services of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it. The Custodian may consult with counsel and the written advice or any written opinion of counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel. Any entity into which the Custodian may appoint such agents as be merged or converted or with which it thinks fitmay be consolidated, including sub-custodiansor any entity resulting from any merger, and agrees that it shall exercise reasonable care in selecting any such agent. The Custodian will not be liable for the acts conversion or omissions of any such agent selected by it with reasonable care or for the solvency of any such agent.
11.5 The Company is hereby notified that the Custodian has delegated certain of the services consolidation to be provided by it hereunder relating to the processing of subscriptions, redemptions, sales, purchases and transfers of Investments, transfers of Cash and record keeping responsibilities (but for the avoidance of doubt excluding responsibilities relating to maintaining custody of the Company’s Cash and Investments under this Agreement) to one of its Affiliates. The Company and the Manager hereby consent to such delegation.
11.6 In order to secure all and any obligations of the Company to the Custodian, the Company hereby grants to the Custodian a continuing lien and security interest over all Cash and Investments from time to time held in the Deposit Account and the Securities Account.
11.7 Notwithstanding that the Custodian holds the Cash and Investments in trust for the Company in accordance with the terms of this Agreement, the Custodian may without notice set-off any sum due to it from the Company against any Cash or Investments held by the Custodian and shall have the power to pay out of the assets of the Company such amounts due to it under this Agreement. The Company expressly acknowledges such right of set-off and that which the Custodian shall have the right to retain all Investments held by it be a party, or by any agent, delegate or sub-custodian until payment in full by the Company of all sums owing by the Company entity succeeding to the Custodian.
11.8 The Custodian shall deliver to the Company from time to time at such reasonable intervals as the Company may require a full and true account of all receipts and payments made and other action taken by the Custodian pursuant to this Agreement since the last date such an account was provided together with a list as at the date of such account of all Investments and Cash or other indebtedness or obligations held by the Custodian or its agents for or on behalf of the Company or otherwise pursuant to the terms hereof. If Investments are held by an agent business of the Custodian shall be the account shall state successor of the name and address Custodian hereunder without the execution or filing of and indicate any paper with any parties hereto or any further act on the Investments held part of any of the parties hereto except where an instrument or transfer or assignment is required by law to effect such agentsuccession, anything herein to the contrary notwithstanding.
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