AMENDMENT

TO

MASTER CUSTODY AGREEMENT

 

 

            This Amendment (“Amendment”), dated as of the 25th day of February, 2020, is entered into separately by and between each Investment Company listed on Exhibit A to the Agreement (as defined below) (each an “Investment Company”) and The Bank of New York Mellon (formerly, The Bank of New York) (the “Custodian”).

 

BACKGROUND:

 

A.                BNY Mellon and each Investment Company separately entered into a Master Custody Agreement dated as of February 16, 1996, as amended (the “Agreement”), relating to BNY Mellon’s provision of services to each Investment Company.

 

B.                 The parties desire to amend the Agreement as set forth herein.

 

TERMS:

 

The parties hereby agree that:

 

1.                  Section 13 of the Agreement is hereby deleted in its entirety and replaced with the following:

 

“Section 13.    EFFECTIVE PERIOD; TERMINATION

 

(a)        Unless terminated pursuant to its terms, this Agreement shall continue until 11:59 PM (Eastern time) on December 31, 2022 (the “Current Term”), at which time this Agreement shall be renewed in accordance with the terms hereof.

(b)        Upon expiration of the Current Term, this Agreement shall automatically renew for successive terms of one (1) year each (each, a “Renewal Term”).  Unless an Investment Company or the Custodian gives written notice to the other party of its intent not to renew this Agreement and such notice is received by the other party not less than ninety (90) days prior to the expiration of the Current Term or the then-current Renewal Term (a "Non-Renewal Notice") this Agreement shall automatically renew in accordance with its terms.  In the event an Investment Company or the Custodian provides a timely Non-Renewal Notice, this Agreement shall terminate with respect to such Investment Company at 11:59 PM (Eastern time) on the last day of the Current Term or applicable Renewal Term, as applicable.  If a Non-Renewal Notice is not timely provided, it shall be deemed to relate to the next subsequent Renewal Term.

 

(c)        In the event a Non-Renewal Notice or Breach Termination Notice is provided with respect to an Investment Company, prior to termination the Investment Company shall specify in writing to the Custodian the entity to which the Custodian is to deliver upon termination all of the Securities and other  assets of the affected Funds held by the Custodian.  If prior to termination the Investment Company does not specify in writing to the Custodian the entity to which the Custodian is to deliver the Securities and other assets of the affected Funds held by the Custodian, the Custodian, after consultation with the Investment Company, may deliver such Securities and other assets to the Investment Company or to a bank or trust company doing business in the State of California or may continue to hold such assets pursuant to the terms of this Agreement until such entity is specified in writing by the Investment Company to the Custodian.  Furthermore, upon termination of this Agreement, the Investment Company shall pay to the Custodian such compensation as may be then due to the Custodian, and shall reimburse the Custodian for the reasonable transaction costs of delivery out of the Securities and other assets of such Investment Company to a successor custodian, and shall pay any other reasonable fees, expenses or charges that were incurred prior to the termination of this Agreement with respect to the Investment Company.  The Custodian shall follow such reasonable Proper Instructions concerning the transfer of custody of records, Securities, financial assets, cash and other items as the Investment Company shall give; provided that (1) the Custodian shall have no liability for shipping and insurance costs associated therewith and (2) full payment shall have been made to the Custodian of its compensation, costs, expenses and other amounts to which it is entitled hereunder.  In connection with any termination of this Agreement between an Investment Company and the Custodian for any reason whatsoever, the parties shall reasonably cooperate with respect to the development of a transition plan setting forth a reasonable timetable for the transition and describing the parties’ respective responsibilities for transitioning the services to any successor custodian in an orderly and uninterrupted fashion. The Custodian will, in addition, provide commercially reasonable support for orderly transition, including transfer of the books and records of the Investment Company, in accordance with the aforementioned transition plan and at such rates as are negotiated in good faith and mutually agreed to by the Investment Company and the Custodian.  The Custodian will provide commercially reasonable cooperation with any successor custodian in connection with the transition.  The relevant Investment Company shall reimburse the Custodian for additional costs which are reasonably incurred by the Custodian in the transition.

(d)       The parties recognize that the continuity of the provision of custody services to the Investment Companies under this Agreement is desirable, even though notice of termination of this Agreement may have been given, or this Agreement may otherwise be deemed to have terminated.  Despite any dispute between a particular Investment Company and the Custodian, the Custodian undertakes that for a reasonable period not exceeding 180 days after the date of termination the Custodian will continue to provide custody services to the Investment Company under the terms of this Agreement, as requested by the Investment Company, and shall be compensated for such assistance at its currently in effect fee schedule.

 

 

(e)        Notwithstanding the term of this Agreement mandated in Section 13(a) or 13(b) hereof, if an Investment Company or the Custodian (with respect to such Investment Company) materially breaches this Agreement (a “Defaulting Party”) the other party (the “Non-Defaulting Party”) may give written notice thereof to the Defaulting Party ("Breach Notice"), and if such material breach shall not have been remedied within thirty (30) days after the Breach Notice is given, then the Non-Defaulting Party may terminate this Agreement by giving written notice of termination to the Defaulting Party ("Breach Termination Notice"), in which case this Agreement shall terminate as of 11:59 PM (Eastern time) on the 30th day following the date the Breach Termination Notice is given, or such later date as may be specified in the Breach Termination Notice (but not later than the last day of the Current Term or then-current Renewal Term, as applicable).  A “material breach” includes (A) numerous non-material breaches which have not been cured by the breaching party after the breaching party has been given reasonable written notice by the non-breaching party of such individual breaches and where the collective impact of such breaches constitutes a material breach of this Agreement and (B) repeated breaches of the same breach which may have been previously cured but then re-occurs after the breaching party has been given reasonable written notice by the non-breaching party of the most recent such breach and where the collective impact of such breaches constitutes a material breach of this Agreement.  In all cases, termination by the Non-Defaulting Party shall not constitute a waiver by the Non-Defaulting Party of any other rights it might have under this Agreement or otherwise against the Defaulting Party.  In the event an Investment Company terminates this Agreement pursuant to this Section 13(e), no Early Removal Fee (as defined Section 13(f) hereof) shall be owed by such Investment Company to the Custodian.

(f)        If during the Current Term more than 1/3 of an Investment Company’s assets serviced by the Custodian under this Agreement (based on the assets at the beginning of the Investment Company’s fiscal year) are removed from the coverage of this Agreement (provided that the foregoing 1/3 calculation will exclude (1) any decrease in assets which is the result of negative market movement, (2) any decrease in assets which is the result of shareholder redemptions, (3) any assets removed pursuant to Section 13(e) hereof where the Custodian is the Defaulting Party, (4) any assets removed as the result of liquidation of a Fund and (5) any assets removed as the result of a merger of a Fund into another investment vehicle for which the Custodian then-currently provides custody services substantially similar to the services provided by the Custodian under this Agreement), the Investment Company shall pay an early removal fee (“Early Removal Fee”) calculated as follows with respect to the Removed Assets (“Removed Assets” means all assets removed from the coverage of this Agreement during the applicable fiscal year, excluding (1) any decrease in assets which is the result of negative market movement, (2) any decrease in assets which is the result of shareholder redemptions, (3) any assets removed pursuant to Section 13(e) hereof where the Custodian is the Defaulting Party, (4) any assets removed as the result of liquidation of a Fund and (5) any assets removed as the result of a merger of a Fund  into another investment vehicle for which the Custodian then-currently provides custody services substantially similar to the services provided by the Custodian under this Agreement):

 

·         With respect to any Removed Assets removed up to and including December 31, 2020, the Early Removal Fee equals 25% of the fees that the Custodian would have received with respect to those Removed Assets if such Removed Assets had remained under the coverage of this Agreement until the end of the Current Term

·      With respect to any Removed Assets removed up to and including December 31, 2021, the Early Removal Fee equals 15% of the fees that the Custodian would have received with respect to those Removed Assets if such Removed Assets had remained under the coverage of this Agreement until the end of the Current Term

·      With respect to any Removed Assets removed up to and including December 31, 2022, the Early Removal Fee equals 10% of the fees that the Custodian would have received with respect to those Removed Assets if such Removed Assets had remained under the coverage of this Agreement until the end of the Current Term

The Early Removal Fee is applicable on a fiscal year basis.  Once the 1/3 threshold is passed with respect to a particular fiscal year, the Early Removal Fee shall be payable at such times as determined by the Custodian in its reasonable, good faith discretion. Each Investment Company agrees that the Early Removal Fee is reasonable compensation to the Custodian for the removal of assets before the end of the Current Term.

 

 

(g)        The termination of this Agreement with respect to one Investment Company or Fund shall not automatically terminate this Agreement for the other Investment Companies or Funds on Exhibit A.  The removal of an Investment Company or Fund from Exhibit A shall not be deemed a termination of this Agreement with respect to any other Investment Company or Fund.  Notwithstanding any other provision of this Agreement, the parties agree that one or more Investment Companies or Funds may be removed from this Agreement in the event such Investment Company or Fund is (1) liquidated or (2) merged into another investment vehicle for which the Custodian then-currently provides custody services substantially similar to the services provided by the Custodian under this Agreement. 

(h)        The obligations of the parties regarding the use of reasonable care, indemnities and payment of fees and expenses will survive the termination of this Agreement.  This Section 13 shall survive termination of this Agreement.”

 

2.                  For clarity, as of the effective date of this Amendment the Agreement shall be deemed to be in its “Current Term” (as defined in Section 1 above) rather than in a “Renewal Term.”

 

3.         Miscellaneous.

(a)               Capitalized terms not defined in this Amendment shall have the same meanings as set forth in the Agreement. In the event of a conflict between the terms of this Amendment and the Agreement, this Amendment shall control with respect to the subject matter of this Amendment.

 

(b)               As hereby amended and supplemented, the Agreement shall remain in full force and effect.

 

(c)               This Amendment constitutes the complete understanding and agreement of the parties with respect to the subject matter of this Amendment and supersedes all prior communications with respect thereto.

 

(d)               This Amendment may be executed in two or more counter­parts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The facsimile signature of any party to this Amendment shall constitute the valid and binding execution hereof by such party.

 

 

(e)               The governing law provision of the Agreement shall be the governing law provision of this Amendment.

 

(f)                This Amendment is executed by an Investment Company with respect to each of its Funds and the obligations hereunder are not binding upon any of the directors, officers or shareholders of a Fund individually.  Notwithstanding any other provision in this Amendment to the contrary, each and every obligation, liability or undertaking of a particular Fund under this Amendment shall constitute solely an obligation, liability or undertaking of, and be binding upon, such particular Fund and shall be payable solely from the available assets of such particular Fund and shall not be binding upon or affect any assets of any other Fund.

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly authorized officers designated below on the date and year first above written.

 

EACH OF THE INVESTMENT

COMPANIES LISTED ON

EXHIBIT A TO THE AGREEMENT

 

 

By:_/s/▇▇▇▇▇▇▇ ▇. HINKLE_________

Name: _ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ _______

Title: _CEO – Finance and Administration_

 

 

THE BANK OF NEW YORK MELLON

 

By:_/s/ ▇▇▇▇▇▇▇ KEENAN___________

Name: _Michael Keenan_______________

Title: __Director______________________

 

 

 

MASTER CUSTODY AGREEMENT

 

EXHIBIT A

(Effective as of February 2020)

 

The following is a list of the Investment Companies and their respective Series for which the Custodian shall serve under the Master Custody Agreement dated as of February 16, 1996.