Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful misconduct, subject to the following: (1) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel. (2) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees. (3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts. (4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons. (5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder. (7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral or (ii) the income or other distributions thereon. (8) Unless and until the Collateral Agent shall have received notice from the Pledgor, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement or the Lien on the Collateral purported to be created hereby.
Appears in 6 contracts
Sources: Collateral Agreement (Third Automatic Common Exchange Security Trust), Collateral Agreement (Automatic Common Exchange Security Trust Ii), Collateral Agreement (CVS Automatic Common Exchange Security Trust)
Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein in this Agreement and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof of this Agreement shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act act, bad faith, willful misconduct or reckless disregard of its own wilful misconductduties. In performing its duties, subject to the followingfollowing shall apply:
(1i) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2ii) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (iA) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (iiB) in accordance with any direction or request of the TrusteesTrustees and not inconsistent with the terms of this Agreement.
(3iii) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4iv) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5v) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6vi) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereofof the preceding sentence, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7vii) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (iA) the collateral Collateral or (iiB) the income or other distributions thereon.
(8) viii) Unless and until the Collateral Agent shall have received notice from the Pledgor, Purchaser or any other Person, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, Collateral; provided that the Collateral Agent has carried out the duties specified in Section 6 Article V with respect to such Collateral at the time of delivery thereofof such Collateral.
(ix) In no event shall the Collateral Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Collateral Agent shall use reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which in this Agreement that are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant heretoto this Agreement; provided that the Collateral Agent has carried out the duties specified in Article V with respect to such Collateral at the time of delivery of such Collateral. Except as specifically provided hereinin this Agreement, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility collectability or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement Contract or the Lien on the Collateral purported to be created hereby.
Appears in 4 contracts
Sources: Collateral Agreement (2017 Mandatory Exchangeable Trust), Collateral Agreement (2017 Mandatory Exchangeable Trust), Collateral Agreement (2017 Mandatory Exchangeable Trust)
Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein in this Agreement and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof of this Agreement shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act act, bad faith, wilful misconduct or reckless disregard of its own wilful misconductduties. In performing its duties, subject to the followingfollowing shall apply:
(1i) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2ii) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3iii) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4iv) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5v) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6vi) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereofof the preceding sentence, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7vii) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral Collateral or (ii) the income or other distributions thereon.
(8) viii) Unless and until the Collateral Agent shall have received notice from the Pledgor, Purchaser or any other Person, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 Article V with respect to such Collateral at the time of delivery thereofof such Collateral. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which in this Agreement that are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant heretoto this Agreement, provided that the Collateral Agent has carried out the duties specified in Article V with respect to such Collateral at the time of delivery of such Collateral. Except as specifically provided hereinin this Agreement, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement Contract or the Lien on the Collateral purported to be created hereby.
Appears in 4 contracts
Sources: Collateral Agreement (2009 Dole Food Automatic Common Exchange Security Trust), Collateral Agreement (Murdock David H), Collateral Agreement (Tenth Automatic Common Exchange Security Trust)
Performance of Duties. In performing its duties hereunder and any other duties listed on any Schedule hereto, if any, the Bank will be entitled to receive and act upon the advice of independent counsel of its own selection, which may be counsel for the Fund, and will be without liability for any action taken or thing done or omitted to be done in accordance with this Agreement in good faith in conformity with such advice, if such counsel and such advice are approved by the Fund, provided however such approval shall not be unreasonably withheld. In the performance of its duties hereunder, so long as it exercises reasonable care, the Bank will be protected and not be liable, and will be indemnified and saved harmless for any action taken or omitted to be taken by it in good faith reliance upon the terms of this Agreement, any Officers' Certificate, Proper Instructions, resolution of the Board, telegram, notice, request, certificate or other instrument reasonably believed by the Bank to be genuine and to have been sent by an Authorized Person and for any other loss to the Fund except in the case of the Bank's negligence, willful misfeasance or misconduct or bad faith in the performance of its duties or negligent disregard of its obligations and duties hereunder. The Collateral Agent undertakes Bank may employ agents in the performance of its duties hereunder and the Bank shall be responsible for the acts and omissions of such agents as if performed by the Bank hereunder. The Bank may employ sub custodians upon receipt of Proper Instructions indicating that the Board has so approved the appointment, provided that any such subcustodian meets at least the minimum qualifications required by Section 17(f)(1) of the Investment Company Act of 1940 to perform such duties act as a custodian of the Fund's assets. In order to comply with Rule 17f-5, (and only such duties as are expressly set forth herein and17f-4, beyond if applicable) of the Investment Company Act of 1940, the contract between the Bank and any foreign subcustodian relating to securities of the Fund shall be subject to approval of the Fund. The appointment of any subcustodian by the Bank pursuant to this Agreement shall not relieve the Bank of its responsibilities and liabilities under this Agreement, and the Bank shall be liable to the Fund, to the extent of the Fund's damages, resulting from the failure of any subcustodian to exercise reasonable care and to act in good faith without negligence, provided however, the Bank shall not be liable for any loss resulting from, or caused by nationalization, expropriation, currency restrictions, acts of war or terrorism, insurrection, revolution, nuclear fusion, fission or radiation, acts of God or other similar events or acts not due to the failure of the Bank or any subcustodians to exercise reasonable care in the performance of such their duties. Notwithstanding the foregoing, no implied covenants or obligations shall be read into this Collateral Agreement against in connection with the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from Bank's liability for its own grossly negligent actionthe performance of The Chase Manhattan Bank, grossly negligent failure N. A. ("Chase") as a sub custodian of the Fund pursuant to act an agreement by and between Chase and the Bank, which form of agreement is attached hereto (the "Chase Agreement"), and any subcustodian of the Fund appointed under the Chase Agreement with the approval of the Board, the "Fund's damages" for the purpose of the preceding sentence will be determined based on the market value of the property which is the subject of the loss at the date of discovery of such loss and without reference to any special conditions or its own wilful misconduct, subject circumstances. The Bank will be under no duty or obligation to the followinginquire into and will not be liable for:
(1a) The Collateral Agent may consult with counselthe validity of the issue of any Portfolio securities purchased by or for the Fund, and the advice legality of the purchases thereof or opinion the propriety of the price incurred therefor;
(b) the legality of any sale of any portfolio securities by or for the Fund or the propriety of the amount for which the same are sold;
(c) the legality of an issue or sale of any shares of beneficial interest of the Fund or the sufficiency of the amount to be received therefor;
(d) the legality of the repurchase of any shares of beneficial interest of the Fund or the propriety of the amount to be paid therefor;
(e) the legality of the declaration of any dividend by the Fund or the legality of the distribution of any Portfolio securities as payment in kind of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.dividend; or
(2f) The Collateral Agent shall any property or moneys of the Fund already delivered or paid by the Bank pursuant to the terms hereof. Moreover, the Bank will not be liable with respect under any duty or obligation to ascertain whether any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with Portfolio securities at any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the Pledgor, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral time delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency account of the Purchase Agreement Fund are such as may properly be held by the Fund under the provisions of its Declaration of Trust or the Lien on the Collateral purported to be created herebyBy-Laws, any federal or state statutes or any rule or regulation of any governmental agency.
Appears in 1 contract
Performance of Duties. The Collateral Agent undertakes In performing its duties hereunder and any other duties listed on any Schedule hereto, if any, the Bank will be entitled to perform receive and act upon the advice of independent counsel of its own selection, which may be counsel for the Trust, and will be without liability for any action taken or thing done or omitted to be done in accordance with this Agreement in good faith in conformity with such duties and only such duties as are expressly set forth herein and, beyond the exercise of reasonable care in advice. In the performance of such dutiesits duties hereunder, no implied covenants or obligations shall the Bank will be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall protected and not be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful misconduct, subject to the following:
(1) The Collateral Agent may consult with counselliable, and will be indemnified and saved harmless, by the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an Manager, for any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not omitted to be liable with respect to any action taken, suffered or omitted taken by it in good faith (i) reliance upon the terms of this Agreement, any Officers' Certificate, Proper Instructions, resolution of the Trustees, telegram, notice, request, certificate or other instrument reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it Bank to be genuine and correct and for any other loss to have been signed the Bank or sent by the proper Person Trust except in the case of the Bank's negligence, willful misfeasance or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability bad faith in the performance of any its duties or reckless disregard of its obligations and duties hereunder. Notwithstanding anything herein to the contrary, in the event that the Bank is entitled to indemnification from the Manager pursuant to the terms hereof and the Bank is not promptly or fully indemnified, the Trust agrees that the Trust shall indemnify the Bank in accordance with the provisions hereof, and all references to the Manager in this Section 12.1 shall be deemed to refer to the Trust. The Bank may employ agents in the performance of its duties hereunder, including, upon receipt of Proper Instructions, subcustodians, provided that any such subcustodian meets at least the minimum qualifications required by Section 17(f)(1) of the Investment Company Act of 1940 to act as a custodian of the Trust's assets; and provided further that the Bank shall have no more or in less responsibility or liability to the exercise Trust on account of any actions or omissions of its rights or powers, if it shall have reasonable grounds for believing that repayment of any sub-custodian so employed than any such funds or adequate indemnity against such risk or liability is not reasonably assured sub-custodian has to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneysthe Bank, and the Collateral Agent Bank shall not be responsible indemnify the Trust for any misconduct loss to the Trust resulting from the acts or negligence on the part omissions of any agent or attorney appointed with due care subcustodian to the extent that the Bank is so indemnified by it hereunderthe subcustodian. In furtherance thereoforder that the indemnification provision contained in this section 12.1 shall apply, however, it is understood that if in any subsidiary owned case the Manager or controlled by the Collateral AgentTrust may be asked to indemnify or save the Bank harmless, the Manager and Trust shall be fully and promptly advised of all pertinent facts concerning the situation in question, and it is further understood that the Bank will use all reasonable care to identify and notify the Manager and Trust promptly concerning any situation which presents or its successorsappears likely to present the probability of such claim for indemnification. The Manager or the Trust, as agent for the Collateral Agentcase may be, shall have the option to defend the Bank against any claim which may perform any be the subject of this indemnification, and in the event that the Manager or all the Trust so elects it will so notify the Bank and thereupon the Manager or the Trust, as the case may be, shall take over the complete defense of the duties of claim, and the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In Bank shall in such situations incur no event shall the Collateral Agent be personally liable for any taxes further legal or other governmental charges imposed upon or expenses in respect of connection with such claim, provided however, if the defendants in any such action include both (i) the collateral Manager or the Trust and (ii) the income or other distributions thereon.
(8) Unless Bank, and until the Collateral Agent Bank shall have received notice reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the PledgorManager or the Trust, or unless as the case may be, the Bank shall have the right to select separate counsel to assert such legal defenses and until a Responsible Officer to otherwise participate in the defense of such action on behalf of the Collateral Agent shall have actual knowledge Bank with such cost to be borne by. the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 party hereto ultimately liable with respect to such Collateral at the time of delivery thereofclaim. The Collateral Agent Bank shall in no case confess any claim or make any compromise in any case in which the Manager or the Trust will be asked to indemnify the Bank except with the' prior written consent of the Manager or the Trust, as the case may be, which consent shall not be responsible unreasonably withheld. The Manager or the Trust, as the case may be, shall not settle any claim without the Bank's prior written consent, provided however that the Bank shall not unreasonably withhold its consent. The Trust shall pay all fees and expenses of any subcustodian. The Bank will be under no duty or obligation to inquire into and will not be liable for.
(a) the validity of the issue of any portfolio securities purchased by or for the correctness Trust, the legality of the recitals and statements herein purchases thereof or the propriety of* the price incurred therefor,
(b) the legality of any sale of any portfolio securities by or for the Trust or the propriety of the amount for which the same are made sold,
(c) the legality of an issue or sale of any shares of beneficial interest of the Trust or the sufficiency of the amount to be received therefor,
(d) the legality of the repurchase of any shares of beneficial interest of the Trust or the propriety of the amount to be paid therefore except as specifically set forth on any Schedule hereto;
(e) the legality of the declaration of any dividend by the Pledgor Trust or for the legality of the distribution of any statement portfolio securities as payment in kind of such dividend; or
(f) any property or certificate moneys of the Trust unless and until received by it, and any such property or moneys delivered or paid by it pursuant to the Pledgor pursuant heretoterms hereof. Except as specifically provided hereinMoreover, the Collateral Agent shall Bank will not be responsible for the validity, sufficiency, collectibility under any duty or marketability of obligation to ascertain whether any Collateral given portfolio securities at any time delivered to or held by it hereunder or for the validity or sufficiency account of the Purchase Agreement Trust are such as may properly be held by the Trust under the provisions of its Declaration of Trust, any federal or the Lien on the Collateral purported to be created herebystate statutes or any rule or regulation of any governmental agency.
Appears in 1 contract
Sources: Custodian Agreement (Gmo Trust)
Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful willful misconduct, subject to the following:
(1) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the Pledgor, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement or the Lien on the Collateral purported to be created hereby.
Appears in 1 contract
Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful misconduct, subject to the following:
(1) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document reasonably believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and provided that the Collateral Agent shall not be responsible for any misconduct or negligence on remain liable to fulfill all of such duties to the part of any agent or attorney appointed same extent, and with due care by it hereunderthe same protections, as if the Collateral Agent was performing them itself. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral Collateral or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the Pledgor, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given 22 to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement or the Lien on the Collateral purported to be created hereby.
Appears in 1 contract
Sources: Collateral Agreement (Mandatory Common Exchange Trust)
Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful willful misconduct, subject to the following:
(1i) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2ii) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (iA) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (iiB) in accordance with any direction or request of the Trustees.
(3iii) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4iv) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5v) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6vi) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7vii) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (iA) the collateral or (iiB) the income or other distributions thereon.
(8) viii) Unless and until the Collateral Agent shall have received notice from the Pledgor, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof.
(ix) Nothing herein, express or implied, shall constitute a delegation to the Collateral Agent of the duties and responsibilities of a "foreign collateral manager," within the meaning of Rule 17f-5 under the Investment Company Act, with respect to any foreign agent or sub-custodian appointed to hold any securities or other instruments constituting Collateral hereunder. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Forward Purchase Agreement or the Lien on the Collateral purported to be created hereby.
Appears in 1 contract
Sources: Collateral Agreement (Decs Trust Ii)
Performance of Duties. The Collateral Agent undertakes to perform --------------------- such duties and only such duties as are expressly set forth herein and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful willful misconduct, subject to the following:
(1) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the Pledgor, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement or the Lien on the Collateral purported to be created hereby.
Appears in 1 contract
Sources: Collateral Agreement (Decs Trust V)
Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful misconduct, subject to the following:
(1) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral Collateral or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the PledgorPledgor or GRIT, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or GRIT or for any statement or certificate delivered by the Pledgor or GRIT pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement or the Lien on the Collateral purported to be created hereby.
Appears in 1 contract
Performance of Duties. The Collateral Agent undertakes In performing its duties hereunder and any other duties listed on any Schedule hereto, if any, the Bank will be entitled to perform receive and act upon the advice of independent counsel of its own selection, which may be counsel for the Trust, and will be without liability for any action taken or thing done or omitted to be done in accordance with this Agreement in good faith in conformity with such duties and only such duties as are expressly set forth herein and, beyond the exercise of reasonable care in advice. In the performance of such dutiesits duties hereunder, no implied covenants or obligations shall the Bank will be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall protected and not be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful misconduct, subject to the following:
(1) The Collateral Agent may consult with counselliable, and will be indemnified and saved harmless, by the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an Manager, for any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not omitted to be liable with respect to any action taken, suffered or omitted taken by it in good faith (i) reliance upon the terms of this Agreement, any Officers' Certificate, Proper Instructions, resolution of the Trustees, telegram, notice, request, certificate or other instrument reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it Bank to be genuine and correct and for any other loss to have been signed the Bank or sent by the proper Person Trust except in the case of the Bank's negligence, willful misfeasance or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability bad faith in the performance of any its duties or reckless disregard of its obligations and duties hereunder. Notwithstanding anything herein to the contrary, in the event that the Bank is entitled to indemnification from the Manager pursuant to the terms hereof and the Bank is not promptly or fully indemnified, the Trust agrees that the Trust shall indemnify the Bank in accordance with the provisions hereof, and all references to the Manager in this Section 12.1 shall be deemed to refer to the Trust. The Bank may employ agents in the performance of its duties hereunder, including, upon receipt of Proper Instructions, subcustodians, provided that any such subcustodian meets at least the minimum qualifications required by Section 17(f)(1) of the1940 Act to act as a custodian of the Trust's assets. The Bank shall have no more or less responsibility or liability to the Trust on account of any actions or omissions of any sub-custodian so employed than any such sub-custodian has to the Bank; provided, however, that the Bank agrees to use reasonable efforts to promptly pursue claims against any such subcustodian in connection with any loss or damage to the Trust caused by the actions or omissions of such subcustodian. Furthermore, the Bank shall indemnify the Trust for any loss to the Trust resulting from the acts or omissions of any subcustodian to the extent that the Bank is so indemnified by the subcustodian. In order that the indemnification provision contained in this Section 12.1 shall apply, however, it is understood that if in any case the Manager or the Trust may be asked to indemnify or save the Bank harmless, the Manager and the Trust shall be fully and promptly advised of all pertinent facts concerning the situation in question, and it is further understood that the Bank will use all reasonable care to identify and notify the Manager and the Trust promptly concerning any situation which presents or appears likely to present the probability of such claim for indemnification. The Manager or the Trust, as the case may be, shall have the option to defend the Bank against any claim which may be the subject of this indemnification, and in the exercise event that the Manager or the Trust so elects it will so notify the Bank and thereupon the Manager or the Trust, as the case may be, shall take over the complete defense of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneysthe claim, and the Collateral Agent Bank shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In in such situations incur no event shall the Collateral Agent be personally liable for any taxes further legal or other governmental charges imposed upon or expenses in respect of connection with such claim, provided however, if the defendants in any such action include both (i) the collateral Manager or the Trust and (ii) the income or other distributions thereon.
(8) Unless Bank, and until the Collateral Agent Bank shall have received notice reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the PledgorManager or the Trust, or unless as the case may be, the Bank shall have the right to select separate counsel to assert such legal defenses and until a Responsible Officer to otherwise participate in the defense of such action on behalf of the Collateral Agent shall have actual knowledge Bank with such cost to be borne by the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 party hereto ultimately liable with respect to such Collateral at the time of delivery thereofclaim. The Collateral Agent Bank shall in no case confess any claim or make any compromise in any case in which the Manager or the Trust will be asked to indemnify the Bank except with the prior written consent of the Manager or the Trust, as the case may be, which consent shall not be responsible unreasonably withheld. The Manager or the Trust, as the case may be, shall not settle any claim without the Bank's prior written consent, provided however that the Bank shall not unreasonably withhold its consent. The Trust shall pay all fees and expenses of any subcustodian. The Bank will be under no duty or obligation to inquire into and will not be liable for:
(a) the validity of the issue of any portfolio securities purchased by or for the correctness Trust, the legality of the recitals and statements herein purchases thereof or the propriety of the price incurred therefor;
(b) the legality of any sale of any portfolio securities by or for the Trust or the propriety of the amount for which the same are made sold;
(c) the legality of an issue or sale of any shares of beneficial interest of the Trust or the sufficiency of the amount to be received therefor;
(d) the legality of the repurchase of any shares of beneficial interest of the Trust or the propriety of the amount to be paid therefore except as specifically set forth on any Schedule hereto;
(e) the legality of the declaration of any dividend by the Pledgor Trust or for the legality of the distribution of any statement portfolio securities as payment in kind of such dividend; or
(f) any property or certificate moneys of the Trust unless and until received by it, and any such property or moneys delivered or paid by it pursuant to the Pledgor pursuant heretoterms hereof. Except as specifically provided hereinMoreover, the Collateral Agent shall Bank will not be responsible for the validity, sufficiency, collectibility under any duty or marketability of obligation to ascertain whether any Collateral given portfolio securities at any time delivered to or held by it hereunder or for the validity or sufficiency account of the Purchase Trust are such as may properly be held by the Trust under the provisions of its Declaration of Trust, any federal or state statutes or any rule or regulation of any governmental agency. Notwithstanding anything to the contrary in this Agreement, in no event shall any party to this Agreement be liable to any other party to this Agreement or the Lien on the Collateral purported to be created herebyany third party for lost profits or lost revenues or any special, consequential, punitive or incidental damages of any kind whatsoever in connection with this Agreement or any activities hereunder.
Appears in 1 contract
Sources: Custodian Agreement (Gmo Trust)
Performance of Duties. The Collateral Agent undertakes In performing its duties hereunder and any other duties listed on any Schedule hereto, if any, the Bank will be entitled to perform receive and act upon the advice of independent counsel of its own selection, which may be counsel for the Trust, and will be without liability for any action taken or thing done or omitted to be done in accordance with this Agreement in good faith in conformity with such duties and only such duties as are expressly set forth herein and, beyond the exercise of reasonable care in advice. In the performance of such dutiesits duties hereunder, no implied covenants or obligations shall the Bank will be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall protected and not be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful misconduct, subject to the following:
(1) The Collateral Agent may consult with counselliable, and will be indemnified and saved harmless, by the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an Manager, for any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not omitted to be liable with respect to any action taken, suffered or omitted taken by it in good faith (i) reliance upon the terms of this Agreement, any Officers’ Certificate, Proper Instructions, resolution of the Trustees, telegram, notice, request, certificate or other instrument reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it Bank to be genuine and correct and for any other loss to have been signed the Bank or sent by the proper Person Trust except in the case of the Bank’s negligence, willful misfeasance or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability bad faith in the performance of any its duties or reckless disregard of its obligations and duties hereunder. Notwithstanding anything herein to the contrary, in the event that the Bank is entitled to indemnification from the Manager pursuant to the terms hereof and the Bank is not promptly or fully indemnified, the Trust agrees that the Trust shall indemnify the Bank in accordance with the provisions hereof, and all references to the Manager in this Section 12.1 shall be deemed to refer to the Trust. The Bank may employ agents in the performance of its duties hereunder, including, upon receipt of Proper Instructions, subcustodians, provided that any such subcustodian meets at least the minimum qualifications required by Section 17(f)(1) of the Investment Company Act of 1940 to act as a custodian of the Trust’s assets; and provided further that the Bank shall have no more or in less responsibility or liability to the exercise Trust on account of any actions or omissions of its rights or powers, if it shall have reasonable grounds for believing that repayment of any subcustodian so employed than any such funds or adequate indemnity against such risk or liability is not reasonably assured subcustodian has to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneysthe Bank, and the Collateral Agent Bank shall not be responsible indemnify the Trust for any misconduct loss to the Trust resulting from the acts or negligence on the part omissions of any agent or attorney appointed with due care subcustodian to the extent that the Bank is so indemnified by it hereunderthe subcustodian. In furtherance thereoforder that the indemnification provision contained in this section 12.1 shall apply, however, it is understood that if in any subsidiary owned case the Manager or controlled by the Collateral AgentTrust may be asked to indemnify or save the Bank harmless, the Manager and Trust shall be fully and promptly advised of all pertinent facts concerning the situation in question, and it is further understood that the Bank will use all reasonable care to identify and notify the Manager and Trust promptly concerning any situation which presents or its successorsappears likely to present the probability of such claim for indemnification. The Manager or the Trust, as agent for the Collateral Agentcase may be, shall have the option to defend the Bank against any claim which may perform any be the subject of this indemnification, and in the event that the Manager or all the Trust so elects it will so notify the Bank and thereupon the Manager or the Trust, as the case may be, shall take over the complete defense of the duties of claim, and the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In Bank shall in such situations incur no event shall the Collateral Agent be personally liable for any taxes further legal or other governmental charges imposed upon or expenses in respect of connection with such claim, provided however, if the defendants in any such action include both (i) the collateral Manager or the Trust and (ii) the income or other distributions thereon.
(8) Unless Bank, and until the Collateral Agent Bank shall have received notice reasonably concluded that there may be legal defenses available to it which are different from or additional to those available to the PledgorManager or the Trust, or unless as the case may be, the Bank shall have the right to select separate counsel to assert such legal defenses and until a Responsible Officer to otherwise participate in the defense of such action on behalf of the Collateral Agent shall have actual knowledge Bank with such cost to be borne by the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 party hereto ultimately liable with respect to such Collateral at the time of delivery thereofclaim. The Collateral Agent Bank shall in no case confess any claim or make any compromise in any case in which the Manager or the Trust will be asked to indemnify the Bank except with the prior written consent of the Manager or the Trust, as the case may be, which consent shall not be responsible unreasonably withheld. The Manager or the Trust, as the case may be, shall not settle any claim without the Bank’s prior written consent, provided however that the Bank shall not unreasonably withhold its consent. The Trust shall pay all fees and expenses of any subcustodian. The Bank will be under no duty or obligation to inquire into and will not be liable for:
(a) the validity of the issue of any portfolio securities purchased by or for the correctness Trust, the legality of the recitals and statements herein purchases thereof or the propriety of the price incurred therefor;
(b) the legality of any sale of any portfolio securities by or for the Trust or the propriety of the amount for which the same are made sold;
(c) the legality of an issue or sale of any shares of beneficial interest of the Trust or the sufficiency of the amount to be received therefor;
(d) the legality of the repurchase of any shares of beneficial interest of the Trust or the propriety of the amount to be paid therefore except as specifically set forth on any Schedule hereto;
(e) the legality of the declaration of any dividend by the Pledgor Trust or for the legality of the distribution of any statement portfolio securities as payment in kind of such dividend; or
(f) any property or certificate moneys of the Trust unless and until received by it, and any such property or moneys delivered or paid by it pursuant to the Pledgor pursuant heretoterms hereof. Except as specifically provided hereinMoreover, the Collateral Agent shall Bank will not be responsible for the validity, sufficiency, collectibility under any duty or marketability of obligation to ascertain whether any Collateral given portfolio securities at any time delivered to or held by it hereunder or for the validity or sufficiency account of the Purchase Agreement Trust are such as may properly be held by the Trust under the provisions of its Declaration of Trust, any federal or the Lien on the Collateral purported to be created herebystate statutes or any rule or regulation of any governmental agency.
Appears in 1 contract
Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful misconduct, subject to the followingEach Security Representative may:
(1a) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by perform any of its officersduties, unless obligations and responsibilities under the Collateral Agent was grossly negligent in ascertaining Security Agreements and the pertinent facts.
(4) In Guarantees through agents and provided each Security Representative shall have selected or appointed any such agent with the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth consent of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it Principal Facilities Agent (such consent not to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunderunreasonably withheld), 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 adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent Security Representative shall not be responsible for any misconduct of such agent or be bound to supervise the proceedings or conduct of such agent;
(b) refrain from exercising any right, power or discretion vested in it under the Finance Documents until it has received instructions from the Principal Facilities Agent acting in accordance with this Agreement and the Finance Documents and, save in the case of gross negligence or wilful misconduct shall, subject to the provisions of this Agreement, be fully protected in so doing;
(c) refrain from doing anything which is or may be unlawful;
(d) refrain from taking any steps to protect or enforce the rights of any Finance Party under the Security Agreements or the Guarantees until it has been indemnified and/or secured to its satisfaction by the Finance Parties against any and all claims which it would or might sustain or incur as a result;
(e) rely on any communication or document believed by it in good faith to be genuine;
(f) rely on the statements of any Obligor as to any matter or fact which might reasonably be expected to be within the knowledge of all or any of them;
(g) obtain and pay for such legal or other expert advice or services as may to it seem reasonably necessary or desirable, and rely on any such advice;
(h) in the case of each Security Representative only, retain for its own benefit any fee or other sum receivable by it in connection with the Finance Documents but only to the extent such fee or other sum is payable to it in its capacity as a Security Representative;
(i) refrain from taking possession of any part of the Security Property or taking any agent other action in relation thereto if it has caused to believe that the same may expose it to any liability under any Environmental Law or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or otherwise in respect of (i) the collateral which it is not fully insured or (ii) the income or other distributions thereon.indemnified to its satisfaction; and
(8) Unless and until j) release any property or assets the Collateral Agent shall have received notice from the Pledgor, or unless and until a Responsible Officer subject of the Collateral Agent shall have actual knowledge any lien created in its favour to the contrary, extent the Collateral Agent shall be entitled same may impose on it any obligation or liability against which it is not fully insured or otherwise expressly indemnified or secured to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement or the Lien on the Collateral purported to be created herebyits satisfaction.
Appears in 1 contract
Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein and, beyond the exercise of reasonable care in the performance of such dutiesduties and acting in good faith, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful willful misconduct, subject to the following:
(1) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any lawful direction or request of the TrusteesPurchaser.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral Collateral or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the Pledgor, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement or the Lien on the Collateral purported to be created hereby.
Appears in 1 contract
Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein in this Agreement and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof of this Agreement shall be construed to relieve the Collateral Agent from liability for a breach of its obligations under this Agreement or its own grossly negligent action, grossly negligent failure to act act, bad faith, wilful misconduct or reckless disregard of its own wilful misconductduties. In performing its duties, subject to the followingfollowing shall apply:
(1i) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2ii) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3iii) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4iv) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5v) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6vi) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereofof the preceding sentence, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7vii) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral Collateral or (ii) the income or other distributions thereon.
(8) viii) Unless and until the Collateral Agent shall have received notice from the Pledgor, Purchaser or any other Person, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 Article V with respect to such Collateral at the time of delivery thereofof such Collateral. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which in this Agreement that are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant heretoto this Agreement, provided that the Collateral Agent has carried out the duties specified in Article V with respect to such Collateral at the time of delivery of such Collateral. Except as specifically provided hereinin this Agreement, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement Contract or the Lien on the Collateral purported to be created hereby.
Appears in 1 contract
Sources: Collateral Agreement (2010 Swift Mandatory Common Exchange Security Trust)
Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful misconduct, subject to the following:
(1) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection pro- tection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document reasonably believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and provided that the Collateral Agent shall not be responsible for any misconduct or negligence on remain liable to fulfill all of such duties to the part of any agent or attorney appointed same extent, and with due care by it hereunderthe same protections, as if the Collateral Agent was performing them itself. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral Collateral or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the Pledgor, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement or the Lien on the Collateral purported to be created hereby.
Appears in 1 contract
Performance of Duties. In performing its duties hereunder and any other duties listed on any Schedule hereto, if any, the Bank will be entitled to receive and act upon the advice of counsel, and will be without liability for any action taken or thing done or omitted to be done in accordance with this Agreement in good faith in conformity with such advice. The Collateral Agent undertakes word "counsel" as used in the preceding sentence shall mean counsel to perform the Fund or an attorney on the staff of the Administrator to the Fund, provided, however, that if such duties counsel or any such attorney is unable to render advice in a timely manner (in the context of the situation requiring advice) or if such counsel or any other such attorney would have a conflict in rendering such advice to the Bank, the word "counsel" shall also mean such other counsel, whether otherwise counsel to, or an employee of, the Bank, as would generally be viewed as having such specific knowledge and only experience with respect to the issue or matter in question that prudent professionals in the industry would seek the advice of such duties as are expressly set forth herein and, beyond the exercise counsel with respect to such type of reasonable care in issue or matter. In the performance of such dutiesits duties hereunder, no implied covenants or obligations shall the Bank will be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall protected and not be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful misconduct, subject to the following:
(1) The Collateral Agent may consult with counselliable, and the advice or opinion of such counsel shall will be full indemnified and complete authorization and protection in respect of an saved harmless for any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not omitted to be liable with respect to any action taken, suffered or omitted taken by it in good faith (i) reliance upon the terms of this Agreement, any Officer's Certificate, Proper Instructions, resolution of the Trustees, telegram, notice, request, certificate or other instrument reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it Bank to be genuine and correct and for any other loss to have been signed the Fund except in the case of its gross negligence, willful misfeasance or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability bad faith in the performance of any its duties or reckless disregard of its obligation and duties hereunder. The Bank may employ agents in the performance of its duties hereunder, including, upon receipt of Proper Instructions, subcustodians, provided that any such subcustodian meets at least the minimum qualifications required by Section 17(f)(1) of the Act to act as a custodian of the Fund's assets. The Bank shall have no liability to the Fund or in the exercise any other person by reason of any act or omission of its rights any subcustodian and the Fund shall indemnify the Bank and hold it harmless from any and against any and all actions, suits and claims, arising directly or powersindirectly out of the performance of any subcustodian. Upon request of the Bank, if it the Fund shall have reasonable grounds assume the entire defense of any action, suit, or claim subject to the foregoing indemnity. The Fund shall pay all fees and expenses of any subcustodian. The Bank will be under no duty or obligation to inquire into and will not be liable for:
(a) The validity of the issue of any Portfolio Securities purchased by or for believing that repayment the Fund, the legality of the purchases thereof or the propriety of the price incurred therefor;
(b) The legality of any sale of any Portfolio Securities by or for the Fund or the propriety of the amount for which the same are sold;
(c) The legality of an issue or sale of any shares of common stock of the Fund or the sufficiency of the amount to be received therefor;
(d) The legality of the repurchase of any shares of common stock of the Fund or the propriety of the amount to be paid therefor;
(e) The legality of the declaration of any dividend by the Fund or the legality for the distribution of any Portfolio Securities as payment in kind of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.dividend; or
(6f) The Collateral Agent may perform any duties hereunder either directly Any property or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all moneys of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the Pledgor, or Fund unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge received by it, and any such property or moneys delivered or paid by it pursuant to the contraryterms hereof. Moreover, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall Bank will not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor under any duty or for obligation to ascertain whether any statement or certificate Portfolio Securities at any time delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency account of the Purchase Agreement Fund are such as may properly be held by the Fund under the provisions of its Articles of Incorporation or the Lien on the Collateral purported to be created herebyBy-Laws, federal or state statutes or any rule or regulation of any governmental agency.
Appears in 1 contract
Performance of Duties. In performing its duties hereunder and any other duties listed on any Schedule hereto, if any, the Bank will be entitled to receive and act upon the advice of independent counsel of its own selection, which may be counsel for the Fund, and will be without liability for any action taken or thing done or omitted to be done in accordance with this Agreement in good faith in conformity with such advice, if such counsel and such advice are approved by the Fund, provided however such approval shall not be unreasonably withheld. In the performance of its duties hereunder, so long as it exercises reasonable care, the Bank will be protected and not be liable, and will be indemnified and saved harmless for any action taken or omitted to be taken by it in good faith reliance upon the terms of this Agreement, any Officers' Certificate, Proper Instructions, resolution of the Board, telegram, notice, request, certificate or other instrument reasonably believed by the Bank to be genuine and to have been sent by an Authorized Person and for any other loss to the Fund except in the case of the Bank's negligence, willful misfeasance or misconduct or bad faith in the performance of its duties or negligent disregard of its obligations and duties hereunder. The Collateral Agent undertakes Bank may employ agents in the performance of its duties hereunder and the Bank shall be responsible for the acts and omissions of such agents as if performed by the Bank hereunder. The Bank may employ sub custodians upon receipt of Proper Instructions indicating that the Board has so approved the appointment, provided that any such sub custodian meets at least the minimum qualifications required by Section 17(f)(1) of the Investment Company Act of 1940 to perform such duties is act as a custodian of the Fund's assets. In order to comply with Rule 17f-5, (and only such duties as are expressly set forth herein and17f-4, beyond if applicable) of the Investment Company Act of 1940, the contract between the Bank and any foreign sub custodian relating to securities of the Fund shall be subject to approval of the Fund. The appointment of any sub custodian by the Bank pursuant to this Agreement shall not relieve the Bank of its responsibilities and liabilities under this Agreement, and the Bank shall be liable to the Fund, to the extent of the Fund's damages, resulting from the failure of any sub custodian to exercise reasonable care and to act in good faith without negligence, provided however, the Bank shall not be liable for any loss resulting from, or caused by nationalization, expropriation, currency restrictions, acts of war or terrorism, insurrection, revolution, nuclear fusion, fission or radiation, acts of God or other similar events or acts not due to the failure of the Bank or any sub custodians to exercise reasonable care in the performance of such their duties. Notwithstanding the foregoing, no implied covenants or obligations shall be read into this Collateral Agreement against in connection with the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from Bank's liability for its own grossly negligent actionthe performance of The Chase Manhattan Bank, grossly negligent failure N. A. ("Chase") as a sub custodian of the Fund pursuant to act an agreement by and between Chase and the Bank, which form of agreement is attached hereto (the "Chase Agreement"), and any sub custodian of the Fund appointed under the Chase Agreement with the approval of the Board, the "Fund's damages" for the purpose of the preceding sentence will be determined based on the market value of the property which is the subject of the loss at the date of discovery of such loss and without reference to any special conditions or its own wilful misconduct, subject circumstances The Bank will be under no duty or obligation to the followinginquire into and will not be liable for:
(1a) The Collateral Agent may consult with counselvalidity of the issue of any Portfolio securities purchased by or for the Fund, and the advice legality of the purchases thereof or opinion the propriety of the price incurred therefor;
(b) The legality of any sale of any portfolio securities by or for the Fund or the propriety of the amount for which the same are sold;
(c) The legality of an issue or sale of any shares of beneficial interest of the Fund or the sufficiency of the amount to be received therefor:
(d) The legality of the repurchase of any shares of beneficial interest of the Fund or the propriety of the amount to be paid therefor;
(e) The legality of the declaration of any dividend by the Fund or the legality of the distribution of any Portfolio securities as payment in kind of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.dividend; or
(2f) The Collateral Agent shall Any property or moneys of the Fund already delivered or paid by the Bank pursuant to the terms hereof. Moreover. the Bank will not be liable with respect under any duty or obligation to ascertain whether any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with Portfolio securities at any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the Pledgor, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral time delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency account of the Purchase Agreement Fund are such as may properly be held by the Fund under the provisions of its Declaration of Trust or the Lien on the Collateral purported to be created herebyBy-Laws. any federal or state statutes or any rule or regulation of any governmental agency.
Appears in 1 contract
Performance of Duties. In performing its duties hereunder and any other duties listed on any Schedule hereto, if any, the Bank will be entitled to receive and act upon the advice of counsel, and will be without liability for any action taken or thing done or omitted to be done in accordance with this Agreement in good faith in conformity with such advice. The Collateral Agent undertakes word "counsel" as used in the preceding sentence shall mean counsel to perform the Fund or an attorney on the staff of the Administrator to the Fund, provided, however, that if such duties counsel or any such attorney is unable to render advice in a timely manner (in the context of the situation requiring advice) or if such counsel or any other such attorney would have a conflict in rendering such advice to the Bank, the word "counsel" shall also mean such other counsel, whether otherwise counsel to, or an employee of, the Bank, as would generally be viewed as having such specific knowledge and only experience with respect to the issue or matter in question that prudent professionals in the industry would seek the advice of such duties as are expressly set forth herein and, beyond the exercise counsel with respect to such type of reasonable care in issue or matter. In the performance of such dutiesits duties hereunder, no implied covenants or obligations shall the Bank will be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall protected and not be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful misconduct, subject to the following:
(1) The Collateral Agent may consult with counselliable, and the advice or opinion of such counsel shall will be full indemnified and complete authorization and protection in respect of an saved harmless for any action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not omitted to be liable with respect to any action taken, suffered or omitted taken by it in good faith (i) reliance upon the terms of this Agreement, any Officer's Certificate, Proper Instructions, resolution of the Trustees, telegram, notice, request, certificate or other instrument reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it Bank to be genuine and correct and for any other loss to have been signed the Fund except in the case of its gross negligence, willful misfeasance or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability bad faith in the performance of any its duties or reckless disregard of its obligations and duties hereunder. The Bank may employ agents in the performance of its duties hereunder, including, upon receipt of Proper Instructions, subcustodians, provided that any such subcustodian meets at least the minimum qualifications required by Section 17(f)(1) of the Act to act as a custodian of the Fund's assets. The Bank shall have no liability to the Fund or in the exercise any other person by reason of any act or omission of its rights any subcustodian and the Fund shall indemnify the Bank and hold it harmless from any and against any and all actions, suits and claims, arising directly or powersindirectly out of the performance of any subcustodian. Upon request of the Bank, if it the Fund shall have reasonable grounds assume the entire defense of any action, suit, or claim subject to the foregoing indemnity. The Fund shall pay all fees and expenses of any subcustodian. The Bank will be under no duty or obligation to inquire into and will not be liable for:
(a) the validity of the issue of any Portfolio Securities purchased by or for believing that repayment the Fund, the legality of the purchases thereof or the propriety of the priceincurred therefor;
(b) the legality of any sale of any Portfolio Securities by or for the Fund or the propriety of the amount for which the same are sold;
(c) the legality of an issue or sale of any shares of [C]ommon [S]tock of the Fund or the sufficiency of the amount to be received therefor;
(d) the legality of the repurchase of any shares of [C]ommon [S]tock of the Fund or the propriety of the amount to be paid therefor;
(e) the legality of the declaration of any dividend by the Fund or the legality of the distribution of any Portfolio Securities as payment in kind of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.dividend; or
(6f) The Collateral Agent may perform any duties hereunder either directly property or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all moneys of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the Pledgor, or Fund unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge received by it, and any such property or moneys delivered or paid by it pursuant to the contraryterms hereof. Moreover, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall Bank will not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor under any duty or for obligation to ascertain whether any statement or certificate Portfolio Securities at any time delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency account of the Purchase Agreement Fund are such as may properly be held by the Fund under the provisions of its [Declaration of Trust] or the Lien on the Collateral purported to be created herebyBy-Laws, federal or state statutes or any rule or regulation of any governmental agency.
Appears in 1 contract
Sources: Custodian Agreement (Domini Social Index Portfolio)
Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein in this Agreement and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof of this Agreement shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful misconduct, subject to the following:grossly
(1i) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2ii) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3iii) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4iv) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5v) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6vi) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereofof the preceding sentence, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7vii) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral Collateral or (ii) the income or other distributions thereon.
(8) viii) Unless and until the Collateral Agent shall have received notice from the Pledgor, Purchaser or any other Person, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 Article V with respect to such Collateral at the time of delivery thereofof such Collateral. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which in this Agreement that are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant heretoto this Agreement, provided that the Collateral Agent has carried out the duties specified in Article V with respect to such Collateral at the time of delivery of such Collateral. Except as specifically provided hereinin this Agreement, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement Contract or the Lien on the Collateral purported to be created hereby.
Appears in 1 contract
Sources: Collateral Agreement (Amdocs Automatic Common Exchange Security Trust)
Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful misconduct, subject to the following:
(1) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the Pledgor, or unless and and
until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement or the Lien on the Collateral purported to be created hereby.
Appears in 1 contract
Sources: Collateral Agreement (Estee Lauder Automatic Common Exchange Security Trust)
Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein in this Agreement and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof of this Agreement shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act act, bad faith, willful misconduct or reckless disregard of its own wilful misconductduties. In performing its duties, subject to the followingfollowing shall apply:
(1i) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2ii) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3iii) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4iv) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5v) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6vi) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereofof the preceding sentence, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7vii) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral Collateral or (ii) the income or other distributions thereon.
(8) viii) Unless and until the Collateral Agent shall have received notice from the Pledgor, Purchaser or any other Person, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 Article V with respect to such Collateral at the time of delivery thereofof such Collateral. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which in this Agreement that are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant heretoto this Agreement, provided that the Collateral Agent has carried out the duties specified in Article V with respect to such Collateral at the time of delivery of such Collateral. Except as specifically provided hereinin this Agreement, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement Contract or the Lien on the Collateral purported to be created hereby.
Appears in 1 contract
Sources: Collateral Agreement (Mandatorily Exchangeable Securities Trust)
Performance of Duties. (a) The Collateral Agent Trustee and the Accountholder, as applicable, may perform any of its duties hereunder directly or by or through agents or employees and shall be entitled to consult with counsel and to act in reliance upon the advice of such counsel concerning matters pertaining to the agencies created hereby and its duties hereunder, and shall not be liable for any action taken or omitted to be taken by it in good faith and in reasonable reliance upon and in accordance with the advice of counsel selected by it. The Trustee and the Accountholder, as applicable, each undertakes to perform such duties and only such duties as are expressly set forth herein andherein, beyond the exercise of reasonable care in the performance of such duties, and no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral AgentTrustee or the Accountholder. No provision hereof shall be construed to relieve the Collateral Agent Accountholder from liability to the Trustee or the Issuer, or the Trustee from liability to the Accountholder or the Issuer, in each case, for its own grossly negligent actiongross negligence, grossly negligent failure to act bad faith or its own wilful willful misconduct, subject to ; provided that (i) the following:
(1) The Collateral Agent may consult with counsel, and Trustee or the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent Accountholder shall not be liable with respect to any action taken, suffered or omitted by it in good faith (iA) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (iiB) in accordance with any written direction or request of the Trustees.
Issuer or the Collateral Advisor (3prior to the occurrence of an Event of Default) The Collateral Agent or the Trustee or Accountholder, as applicable, (other than those that require the consent of other parties and such consent has been withheld), unless in either case the Accountholder or the Trustee, as the case may be, was grossly negligent, acted in bad faith or committed willful misconduct in ascertaining the pertinent facts or was grossly negligent, acted in bad faith or committed willful misconduct in determining the requirements imposed by this Agreement or such written direction or request; and (ii) neither the Trustee nor the Accountholder shall not be liable for any error of judgment made in good faith by any of its officersofficers or employees, unless the Collateral Agent Trustee or the Accountholder, as the case may be, was grossly negligent negligent, acted in bad faith or committed willful misconduct in ascertaining the pertinent factsfacts or in determining the requirements imposed by this Agreement. Whenever in this Agreement it is provided that the absence of the occurrence and continuation of an Event of Default is a condition precedent to the taking of any action by the Trustee or the Accountholder at the request of the Issuer, then notwithstanding that the satisfaction of such condition is a condition precedent to the Issuer’s right to make such request or direction, the Trustee or the Accountholder, as the case may be. shall not be liable for acting in accordance with such request or direction if it does not have knowledge of the occurrence and continuance of such Event of Default.
(4b) Anything in this Agreement to the contrary notwithstanding, in no event shall the Trustee or the Accountholder be liable under or in connection with this Agreement for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including, but not limited to, lost profits, even if the Trustee or the Accountholder, as the case may be, has been advised of the possibility thereof and regardless of the form of action in which such damages are sought.
(c) In respect of the Collateral credited to and deposited in an account with respect to which the Trustee acts as Accountholder, the Trustee shall act in accordance with the terms of this Agreement.
(d) The Accountholder shall not be required to take notice or be deemed to have notice or knowledge of any Potential Event of Default or Event of Default under the Transaction Documents unless an Authorized Officer of the Accountholder shall have received written notice thereof. In the absence of bad faith on its partreceipt of such notice, the Collateral Agent Accountholder may conclusively rely, as to assume that there is no default or event of default under the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or PersonsTransaction Documents.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the Pledgor, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement or the Lien on the Collateral purported to be created hereby.
Appears in 1 contract
Performance of Duties. (a) If the Collateral Agent receives a request to take action or consent under any of the Financing Agreements that is not expressly authorized, permitted or required by this Agreement, the Collateral Agent shall immediately request direction from the Control Party. Except as specifically provided in this Agreement, the Collateral Agent shall not take any action under this Agreement or any other Financing Agreement without the direction of the Control Party.
(b) The Collateral Agent may perform any of its duties hereunder directly or by or through agents or employees and shall be entitled to consult with counsel and to act in reliance upon the advice of such counsel concerning matters pertaining to the agencies created hereby and its duties hereunder, and shall not be liable for any action taken or omitted to be taken by it in good faith and in reasonable reliance upon and in accordance with the advice of counsel selected by it. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein andherein, beyond the exercise of reasonable care in the performance of such duties, and no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof of this Agreement shall be construed to relieve the Collateral Agent from liability to the Secured Parties, or any of them, or the Borrower for its own grossly negligent action, grossly negligent failure to act gross negligence or its own wilful willful misconduct, subject to provided that: (i) the following:
(1) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (iA) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement Agreement, or (iiB) in accordance with any written direction or request of the Trustees.
Secured Parties (3other than those that require the consent of other parties and such consent has been withheld), unless in either case the Collateral Agent was grossly negligent in ascertaining the pertinent facts or grossly negligent in determining the requirements imposed by this Agreement or such written direction or request; and (ii) The the Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officersofficers or employees, unless the Collateral Agent was grossly negligent in ascertaining the pertinent factsfacts or in determining the requirements imposed by this Agreement.
(4c) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as Anything in this Agreement to the truth of the statements and the correctness of the opinions expressed thereincontrary notwithstanding, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon under or in respect connection with this Agreement for indirect, special, incidental, punitive or consequential losses or damages of (i) the collateral any kind whatsoever, including, but not limited to lost profits, whether or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the Pledgornot foreseeable, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that even if the Collateral Agent has carried out been advised of the duties specified possibility thereof and regardless of the form of action in Section 6 with respect to which such Collateral at the time of delivery thereof. The Collateral Agent damages are sought; provided, however, that this clause shall not be responsible for deemed to apply in the correctness event of a finding by a court of competent jurisdiction of gross negligence or willful misconduct on the part of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement or the Lien on the Collateral purported to be created herebyAgent.
Appears in 1 contract
Sources: Intercreditor, Security and Collateral Agency Agreement (Abraxas Petroleum Corp)
Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful misconduct, subject to the followingSecurity Trustee may:
(1a) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by perform any of its officersduties, unless obligations and responsibilities under the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements Security Documents through agents and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent Security Trustee shall not be responsible for any misconduct of such agent or be bound to supervise the proceedings or conduct of such agent;
(b) refrain from exercising any right, power or discretion vested in it under the Finance Documents until it has received instructions from the Required Secured Parties acting in accordance with this Agreement and the Finance Documents and, save in the case of negligence or wilful misconduct shall, subject to the provisions of this Agreement, be fully protected in so doing;
(c) refrain from doing anything which is or may be unlawful;
(d) refrain from taking any steps to protect or enforce the rights of any Finance Party under the Security Documents until it has been indemnified and/or secured to its satisfaction by the Finance Parties against any and all claims which it would or might sustain or incur as a result;
(e) rely on any communication or document believed by it in good faith to be genuine;
(f) rely on the statements of any Obligor as to any matter or fact which might reasonably be expected to be within the knowledge of all or any of them;
(g) obtain and pay for such legal or other expert advice or services as may to it seem reasonably necessary or desirable, and rely on any such advice;
(h) retain for its own benefit any fee or other sum receivable by it in connection with the Finance Documents but only to the extent such fee or other sum is payable to it in its capacity as Security Trustee;
(i) refrain from taking possession of any part of the Security Trust Property or taking any agent other action in relation thereto if it has cause to believe that the same may expose it to any liability under any Environment Law or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or otherwise in respect of (i) the collateral which it is not fully insured or (ii) the income or other distributions thereon.indemnified to its satisfaction; and
(8) Unless and until j) release any property or assets the Collateral Agent shall have received notice from the Pledgor, or unless and until a Responsible Officer subject of the Collateral Agent shall have actual knowledge any lien created in its favour to the contrary, extent the Collateral Agent shall be entitled same may impose on it any obligation or liability against which it is not fully insured or otherwise expressly indemnified or secured to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement or the Lien on the Collateral purported to be created herebyits satisfaction.
Appears in 1 contract
Performance of Duties. In performing its duties hereunder and any other duties listed on any Schedule hereto, if any, the Bank will be entitled to receive and act upon the advice of independent counsel of its own selection, which may be counsel for the Fund, and will be without liability for any action taken or thing done or omitted to be done in accordance with this Agreement in good faith in conformity with such advice, if such counsel and such advice are approved by the Fund, provided however such approval shall not be unreasonably withheld. In the performance of its duties hereunder, so long as it exercises reasonable care, the Bank will be protected and not be liable, and will be indemnified and saved harmless for any action taken or omitted to be taken by it in good faith reliance upon the terms of this Agreement, any Officers' Certificate, Proper Instructions, resolution of the Board, telegram, notice, request, certificate or other instrument reasonably believed by the Bank to be genuine and to have been sent by an Authorized Person and for any other loss to the Fund except in the case of the Bank's negligence, wilful misfeasance or misconduct or bad faith in the performance of its duties or negligent disregard of its obligations and duties hereunder. The Collateral Agent undertakes Bank may employ agents in the performance of its duties hereunder and the Bank shall be responsible for the acts and omissions of such agents as if performed by the Bank hereunder. The Bank may employ subcustodians upon receipt of Proper Instructions indicating that the Board has so approved the appointment, provided that any such subcustodian meets at least the minimum qualifications required by Section 17 (f) (1) of the Investment Company Act of 1940 to perform such duties act as a custodian of the Fund's assets. In order to comply with Rule 17f-5, (and only such duties as are expressly set forth herein and17f-4, beyond if applicable) of the Investment Company Act of 1940, the contract between the Bank and any foreign subcustodian relating to securities of the Fund shall be subject to approval of the Fund. The appointment of any subcustodian by the Bank pursuant to this Agreement shall not relieve the Bank of its responsibilities and liabilities under this Agreement, and the Bank shall be liable to the Fund, to the extent of the Fund's damages, resulting from the failure of any subcustodian to exercise reasonable care and to act in good faith without negligence, provided however, the Bank shall not be liable for any loss resulting from, or caused by nationalization, expropriation, currency restrictions, acts of war or terrorism, insurrection, revolution, nuclear fusion, fission or radiation, acts of God or other similar events or acts not due to the failure of the Bank or any subcustodians to exercise reasonable care in the performance of such their duties. Notwithstanding the foregoing, no implied covenants or obligations shall be read into this Collateral Agreement against in connection with the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from Bank's liability for its own grossly negligent actionthe performance of The Chase Manhattan Bank, grossly negligent failure N. A. ("Chase") as a subcustodian of the Fund pursuant to act an agreement by and between Chase and the Bank, which form of agreement is attached hereto (the "Chase Agreement"), and any subcustodian of the Fund appointed under the Chase Agreement with the approval of the Board, the "Fund's damages" for the purpose of the preceding sentence will be determined based on the market value of the property which is the subject of the loss at the date of discovery of such loss and without reference to any special conditions or its own wilful misconduct, subject circumstances. The Bank will be under no duty or obligation to the followinginquire into and will not be liable for:
(1a) The Collateral Agent may consult with counselthe validity of the issue of any Portfolio securities purchased by or for the Fund, and the advice legality of the purchases thereof or opinion the propriety of the price incurred therefor;
(b) the legality of any sale of any portfolio securities by or for the Fund or the propriety of the amount for which the same are sold;
(c) the legality of an issue or sale of any shares of beneficial interest of the Fund or the sufficiency of the amount to be received therefor;
(d) the legality of the repurchase of any shares of beneficial interest of the Fund or the propriety of the amount to be paid therefor;
(e) the legality of the declaration of any dividend by the Fund or the legality of the distribution of any Portfolio securities as payment in kind of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.dividend; or
(2f) The Collateral Agent shall any property or moneys of the Fund already delivered or paid by the Bank pursuant to the terms hereof. Moreover, the Bank will not be liable with respect under any duty or obligation to ascertain whether any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with Portfolio securities at any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the Pledgor, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral time delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency account of the Purchase Agreement Fund are such as may properly be held by the Fund under the provisions of its Declaration of Trust or the Lien on the Collateral purported to be created herebyBy-Laws, any federal or state statutes or any rule or regulation of any governmental agency.
Appears in 1 contract
Performance of Duties. (a) The Collateral Agent may perform any of its duties hereunder directly or by or through agents or employees and shall be entitled to consult with counsel and to act in reliance upon the advice of such counsel concerning matters pertaining to the agencies created hereby and its duties hereunder, and shall not be liable for any action taken or omitted to be taken by it in good faith and in reasonable reliance upon and in accordance with the advice of counsel selected by it. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein andherein, beyond the exercise of reasonable care in the performance of such duties, and no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from liability to the Trustee or the Issuer for its own grossly negligent actiongross negligence, grossly negligent failure to act bad faith or its own wilful willful misconduct, subject to ; provided that (i) the following:
(1) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (iA) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (iiB) in accordance with any written direction or request of the Trustees.
Issuer or the Collateral Advisor (3prior to the occurrence of an Event of Default) The or the Trustee (other than those that require the consent of other parties and such consent has been withheld), unless in either case the Collateral Agent was grossly negligent, acted in bad faith or committed willful misconduct in ascertaining the pertinent facts or was grossly negligent, acted in bad faith or committed willful misconduct in determining the requirements imposed by this Agreement or such written direction or request; and (ii) the Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officersofficers or employees, unless the Collateral Agent was grossly negligent negligent, acted in bad faith or committed willful misconduct in ascertaining the pertinent facts.
(4) In facts or in determining the requirements imposed by this Agreement. Whenever in this Agreement it is provided that the absence of bad faith on its part, the occurrence and continuation of an Event of Default is a condition precedent to the taking of any action by the Collateral Agent may conclusively relyat the request of the Issuer, as then notwithstanding that the satisfaction of such condition is a condition precedent to the truth of the statements and the correctness of the opinions expressed thereinIssuer’s right to make such request or direction, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible liable for any misconduct acting in accordance with such request or negligence on the part of any agent or attorney appointed with due care by direction if it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all does not have knowledge of the duties occurrence and continuance of the Collateral Agent relating to the valuation such Event of securities and other instruments constituting Collateral hereunderDefault.
(7b) In Anything in this Agreement to the contrary notwithstanding, in no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon under or in respect connection with this Agreement for indirect, special, incidental, punitive or consequential losses or damages of (i) any kind whatsoever, including, but not limited to, lost profits, even if the collateral or (ii) Collateral Agent has been advised of the income or other distributions thereonpossibility thereof and regardless of the form of action in which such damages are sought.
(8) Unless c) In respect of the Collateral credited to and until deposited in an account with respect to which the Collateral Agent acts as Accountholder, the Collateral Agent shall act in accordance with the terms of this Agreement and the instructions of the Trustee.
(d) The Collateral Agent shall not be required to take notice or be deemed to have received notice from or knowledge of any Potential Event of Default or Event of Default under the Pledgor, or Transaction Documents unless and until a Responsible an Authorized Officer of the Collateral Agent shall have actual knowledge to received written notice thereof. In the contraryabsence of receipt of such notice, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided may conclusively assume that there is no default or event of default under the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement or the Lien on the Collateral purported to be created herebyTransaction Documents.
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Performance of Duties. The Collateral Warrant Agent undertakes to may execute and exercise any of the rights or powers hereby vested in it or perform such duties and only such duties as are expressly set forth herein and, beyond any duty under this Agreement either itself or by or through its attorneys or agents (which shall not include its employees).
(a) In the exercise of reasonable care the rights and duties prescribed or conferred by the terms of this Agreement, the Warrant Agent shall exercise that degree of care, diligence and skill that a reasonably prudent warrant agent would exercise in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agentcomparable circumstances. No provision hereof of this Agreement shall be construed to relieve the Collateral Warrant Agent from liability for its own grossly gross negligent action, grossly negligent failure to act or its own wilful willful misconduct, subject to the following:
(1) The Collateral Agent may consult with counsel, and the advice bad faith or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counselfraud under this Agreement.
(2b) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request obligation of the Trustees.
(3) The Collateral Warrant Agent to commence or continue any act, action or proceeding for the purpose of enforcing any rights of the Warrant Agent or the Holders hereunder shall not be liable for any error of judgment made in good faith conditional upon the Holders furnishing, when required by any of notice by the Warrant Agent, sufficient funds to commence or to continue such act, action or proceeding and an indemnity reasonably satisfactory to the Warrant Agent to protect and to hold harmless the Warrant Agent and its officers, unless directors, employees and agents, against the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its partcosts, the Collateral Agent charges and expenses and liabilities to be incurred thereby and any loss and damage it may conclusively rely, as to the truth suffer by reason thereof. None of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of provisions contained in this Collateral Agreement shall require the Collateral Warrant Agent to expend or to risk its own funds or otherwise to incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to itpowers unless indemnified and funded as aforesaid.
(6c) The Collateral Warrant Agent may perform may, before commencing or at any duties hereunder either directly time during the continuance of any such act, action or proceeding, require the Holders, at whose instance it is acting to deposit with the Warrant Agent the Warrants held by or through agents or attorneysthem, and for which the Collateral Warrant Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunderissue receipts.
(7d) In no event shall Every provision of this Agreement that by its terms relieves the Collateral Warrant Agent be personally liable for of liability or entitles it to rely upon any taxes or other governmental charges imposed upon or in respect of (i) the collateral or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the Pledgor, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge evidence submitted to it is subject to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time provisions of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement or the Lien on the Collateral purported to be created herebyApplicable Law.
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Performance of Duties. The Collateral Agent undertakes to perform such duties and only such duties as are expressly set forth herein and, beyond the exercise of reasonable care in the performance of such duties, no implied covenants or obligations shall be read into this Collateral Agreement against the Collateral Agent. No provision hereof shall be construed to relieve the Collateral Agent from liability for its own grossly negligent action, grossly negligent failure to act or its own wilful willful misconduct, subject to the following:
(1) The Collateral Agent may consult with counsel, and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of an action taken or suffered hereunder in good faith and in accordance with such advice or opinion of counsel.
(2) The Collateral Agent shall not be liable with respect to any action taken, suffered or omitted by it in good faith (i) reasonably believed by it to be authorized or within the discretion or rights or powers conferred on it by this Collateral Agreement or (ii) in accordance with any direction or request of the Trustees.
(3) The Collateral Agent shall not be liable for any error of judgment made in good faith by any of its officers, unless the Collateral Agent was grossly negligent in ascertaining the pertinent facts.
(4) In the absence of bad faith on its part, the Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any note, notice, resolution, consent, certificate, affidavit, letter, telegram, teletype message, statement, order or other document believed by it to be genuine and correct and to have been signed or sent by the proper Person or Persons.
(5) No provision of this Collateral Agreement shall require the Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(6) The Collateral Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Collateral Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. In furtherance thereof, any subsidiary owned or controlled by the Collateral Agent, or its successors, as agent for the Collateral Agent, may perform any or all of the duties of the Collateral Agent relating to the valuation of securities and other instruments constituting Collateral hereunder.
(7) In no event shall the Collateral Agent be personally liable for any taxes or other governmental charges imposed upon or in respect of (i) the collateral or (ii) the income or other distributions thereon.
(8) Unless and until the Collateral Agent shall have received notice from the Pledgor, or unless and until a Responsible Officer of the Collateral Agent shall have actual knowledge to the contrary, the Collateral Agent shall be entitled to deem and treat all Collateral delivered to it hereunder as Eligible Collateral hereunder, provided that the Collateral Agent has carried out the duties specified in Section 6 with respect to such Collateral at the time of delivery thereof. The Collateral Agent shall not be responsible for the correctness of the recitals and statements herein which are made by the Pledgor or for any statement or certificate delivered by the Pledgor pursuant hereto. Except as specifically provided herein, the Collateral Agent shall not be responsible for the validity, sufficiency, collectibility or marketability of any Collateral given to or held by it hereunder or for the validity or sufficiency of the Purchase Agreement or the Lien on the Collateral purported to be created hereby.
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Sources: Collateral Agreement (Decs Trust)