STATEMENT, INSTRUMENT, OPINION, REPORT, NOTICE,
REQUEST, CONSENT, ENTITLEMENT ORDER, APPROVAL OR OTHER PAPER OR DOCUMENT.
(G)
CUSTODIAN MAY EXECUTE ANY OF THE TRUSTS OR POWERS HEREUNDER OR
PERFORM ANY DUTIES HEREUNDER EITHER DIRECTLY OR BY OR THROUGH AGENTS, ATTORNEYS,
CUSTODIANS OR NOMINEES APPOINTED BY IT WITH DUE CARE, AND SHALL NOT BE
RESPONSIBLE FOR ANY WILLFUL MISCONDUCT OR GROSS NEGLIGENCE ON THE PART OF ANY
AGENT, ATTORNEY, CUSTODIAN OR NOMINEE SO APPOINTED.
XXIII.
INDEMNIFICATION
(A)
SERVICER AGREES TO INDEMNIFY AND HOLD CUSTODIAN
AND ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES HARMLESS AGAINST ANY AND ALL
LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS,
COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER, INCLUDING
REASONABLE ATTORNEY'S FEES AND EXPENSES, THAT MAY BE IMPOSED ON, INCURRED BY, OR
ASSERTED AGAINST IT OR THEM IN ANY WAY RELATING TO OR ARISING OUT OF THIS
CUSTODIAL AGREEMENT OR ANY ACTION TAKEN OR NOT TAKEN BY IT OR THEM HEREUNDER
UNLESS SUCH LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES, PENALTIES, ACTIONS,
JUDGMENTS, SUITS, COSTS, EXPENSES OR DISBURSEMENTS (OTHER THAN SPECIAL,
INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHICH SHALL IN NO EVENT BE PAID BY
CUSTODIAN) WERE IMPOSED ON, INCURRED BY OR ASSERTED AGAINST CUSTODIAN RELATING
TO OR ARISING OUT OF GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT ON THE
PART OF CUSTODIAN OR ANY OF ITS DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES.
THE
FOREGOING INDEMNIFICATION SHALL SURVIVE ANY RESIGNATION OR REMOVAL OF CUSTODIAN
OR THE TERMINATION OR ASSIGNMENT OF THIS CUSTODIAL AGREEMENT.
(B)
NEITHER CUSTODIAN NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES OR
AGENTS SHALL BE LIABLE FOR ANY ACTION TAKEN OR OMITTED UNDER THIS CUSTODIAL
AGREEMENT OR IN CONNECTION HEREWITH EXCEPT TO THE EXTENT CAUSED BY SUCH PERSON'S
GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH, AS DETERMINED BY THE FINAL
JUDGMENT OF A COURT OF COMPETENT JURISDICTION, NO LONGER SUBJECT TO APPEAL OR
REVIEW.
XXIV.
NO ADVERSE INTEREST OF CUSTODIAN.
BY EXECUTION OF THIS CUSTODIAL
AGREEMENT, CUSTODIAN WARRANTS THAT IT CURRENTLY DOES NOT HOLD AND DURING THE
EXISTENCE OF THIS CUSTODIAL AGREEMENT SHALL NOT HOLD, ANY ADVERSE INTEREST, BY
WAY OF SECURITY OR OTHERWISE, IN ANY DELIVERABLE, DELIVERABLE PACKAGE,
COLLATERAL FILE AND THE COLLATERAL CONTAINED THEREIN OR POSSESSORY COLLATERAL.
XXV.
COUNTERPARTS.
THIS CUSTODIAL AGREEMENT MAY BE EXECUTED IN ANY NUMBER
OF COUNTERPARTS AND BY THE PARTIES HERETO IN SEPARATE COUNTERPARTS, EACH OF
WHICH WHEN SO EXECUTED AND DELIVERED SHALL BE DEEMED TO BE AN ORIGINAL, AND ALL
OF WHICH TAKEN TOGETHER SHALL CONSTITUTE BUT ONE AND THE SAME INSTRUMENT.
XXVI.
FORCE MAJEURE.
NO PARTY HERETO SHALL BE LIABLE FOR FAILURE TO PERFORM,
IN WHOLE OR IN MATERIAL PART (INCLUDING, WITHOUT LIMITATION, THE FAILURE TO
DELIVER ANY DELIVERABLE IN A TIMELY MANNER AS REQUIRED BY THIS CUSTODIAL
AGREEMENT), ITS OBLIGATIONS UNDER THIS CUSTODIAL AGREEMENT IF SUCH FAILURE IS
CAUSED BY ANY EVENT OR CONDITION NOT
13
EXISTING AS OF THE DATE OF THIS CUSTODIAL AGREEMENT AND NOT REASONABLY WITHIN
THE CONTROL OF THE AFFECTED PARTY, INCLUDING, BUT WITHOUT LIMITATION, BY FIRE,
FLOOD, TYPHOON, EARTHQUAKE, EXPLOSION, STRIKES, LABOR TROUBLES OR