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believes in good faith to have been given by an authorized person. The Custodian may also <br />rely on instructions transmitted electronically through a customer data entry system or any <br />similar electronic instruction system acceptable to the Custodian. Any instructions delivered <br />to the Custodian by telephone shall promptly thereafter be confirmed in writing by an <br />authorized person, but the Custodian will incur no liability for the Program Administrator's <br />failure to send such confirmation in writing. Instructions are deemed given to the Custodian <br />when actually received by the Custodian. <br />(b) In the absence of bad faith or negligence on its part, the Custodian may <br />conclusively rely, as to the truth and correctness of the statements expressed in notices, <br />certificates or documents submitted to it, and the Custodian need not investigate any fact or <br />matter stated in any such notice, certificate or document submitted to it or verify the accuracy <br />of the contents thereof. <br />5.6 Degree of Care. <br />(a) The Custodian shall hold the Investment Property in the Account with the <br />same degree of care and protection with which it holds its own property. The Custodian <br />agrees that it shall be responsible for any loss of Investment Property caused solely by the <br />negligence or bad faith of the Custodian or its agents or any material breach of this Agreement <br />by the Custodian. The Custodian is hereby released from liability except for liability arising <br />from the negligence or bad faith of the Custodian or its agents or from any material breach of <br />this Agreement by the Custodian. In the event of any such loss of Investment Property, the <br />Custodian shall promptly replace the Investment Property or the value thereof and the value of <br />any such loss of rights or privileges resulting from such loss. The Custodian shall not be <br />responsible for the acts or omissions or solvency of any broker or agent selected by the <br />Program Administrator to effect any transactions for the Account. <br />(b) The Custodian shall not be liable for any error of judgment made in good <br />faith by an employee, officer or agent of the Custodian, unless it was proved that the <br />Custodian was negligent in ascertaining the pertinent facts. <br />(c) Except as provided in Section 5.6(a), the Custodian shall not be required <br />to expend or risk its own funds or otherwise incur any financial liability in the performance of <br />any of its duties hereunder or in the exercise of any of its rights or powers unless it receives <br />indemnity satisfactory to it for repayment of such funds or against such risk of liability. <br />(d) The Custodian shall have no discretion whatsoever with respect to the <br />management, disposition or investment of Investment Property and is not a fiduciary to the <br />Program Administrator or the Participants. During the term of this Agreement, the Custodian <br />may, with respect to questions of law and construction of this Agreement, apply for and <br />obtain, at the cost of the Custodian, the advice and opinion of counsel of its choice and shall <br />be fully protected with respect to anything done or omitted by it in good faith in conformity <br />with such advice or opinion. The Custodian shall have no duties except those that are <br />specifically set forth in this Agreement. The Custodian shall only be responsible for custody <br />hereunder of Investment Property delivered to it and then only while such Investment <br />Property is held in the Account. <br />22 <br />44350219.1 <br />