CUSTODY AGREEMENT by and between 1WS CREDIT INCOME FUND and THE BANK OF NEW YORK MELLON
Exhibit (j)(1)
by and between
and
THE BANK OF NEW YORK MELLON
TABLE OF CONTENTS
PAGE
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SECTION 1 – CUSTODY ACCOUNTS; INSTRUCTIONS
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1
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1.1
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Definitions
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1
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1.2
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Establishment of Account
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3
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1.3
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Representations and Warranties
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4
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1.4
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Distributions
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6
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1.5
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Authorized Instructions
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6
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1.6
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Authentication
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7
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1.7
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On-Line Systems
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7
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SECTION 2 – CUSTODY SERVICES
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7
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2.1
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Holding Securities
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7
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2.2
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Depositories
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9
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2.3
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Agents
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9
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2.4
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Custodian Actions without Direction
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9
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2.5
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Custodian Actions with Direction
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10
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2.6
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Foreign Exchange Transactions
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10
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SECTION 3 – CORPORATE ACTIONS
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10
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3.1
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Custodian Notification
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10
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3.2
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Direction
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10
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3.3
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Voting Rights
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11
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3.4
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Partial Redemptions, Payments, Etc.
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11
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SECTION 4 – SETTLEMENT OF TRADES
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11
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4.1
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Payments
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11
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4.2
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Contractual Settlement and Income
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11
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4.3
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Trade Settlement
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11
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SECTION 5 – DEPOSITS AND ADVANCES
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11
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5.1
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Deposits
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11
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5.2
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Sweep and Float
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12
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5.3
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Overdrafts and Indebtedness
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12
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5.4
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Securing Repayment
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12
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5.5
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Setoff
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13
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5.6
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Bank Borrowings
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13
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SECTION 6 – SALE AND REDEMPTION OF SHARES
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13
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6.1
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Sale of Shares
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13
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6.2
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Redemption of Shares
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13
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6.3
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Check Redemptions
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14
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SECTION 7 – PAYMENT OF DIVIDENDS AND DISTRIBUTIONS
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14
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7.1
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Determination to Pay
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14
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7.2
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Payment
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14
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SECTION 8 – TAXES, REPORTS AND RECORDS
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14
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8.1
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Tax Obligations
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14
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i
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8.2
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Pricing and Other Data
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14
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8.3
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Statements and Reports
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15
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8.4
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Review of Reports
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15
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8.5
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Books and Records
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15
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8.6
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Required Disclosure
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15
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8.7
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Tools
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16
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SECTION 9 – PROVISIONS REGARDING CUSTODIAN
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17
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9.1
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Standard of Care
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17
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9.2
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Limitation of Duties and Liability
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17
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9.3
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Losses
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17
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9.4
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Gains
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18
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SECTION 10 – AMENDMENT; TERMINATION; ASSIGNMENT
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19
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10.1
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Amendment
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19
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10.2
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Termination
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19
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10.3
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Successors and Assigns
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19
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SECTION 11 – ADDITIONAL PROVISIONS
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19
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11.1
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Non-Custody Assets
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19
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11.2
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Appropriate Action
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20
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11.3
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Governing Law
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20
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11.4
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Representations
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20
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11.5
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USA PATRIOT Act
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20
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11.6
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Non-Fiduciary Status
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20
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11.7
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Notices
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20
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11.8
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Entire Agreement
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20
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11.9
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Necessary Parties
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21
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11.10
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Execution in Counterparts
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21
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11.11
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Sanctions
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21
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ii
CUSTODY AGREEMENT, dated as of the
latest date set forth on the signature page hereto, between 1WS CREDIT INCOME FUND, a Delaware Statutory Trust organized under the laws of Delaware
(the “Customer”) and THE BANK OF NEW YORK MELLON, a bank organized under the laws of the state of New York (the “Custodian”).
SECTION 1 – CUSTODY
ACCOUNTS; INSTRUCTIONS
1.1 Definitions. Whenever used in this
Agreement, the following words shall have the meanings set forth below:
“‘40 Act” shall have the meaning set forth in
Section 1.3.
“Account” or “Accounts” shall have the meaning set forth in Section 1.2.
“Authorized Instructions” shall have the meaning set forth in Section 1.5.
“Authorized Person” shall mean any Person
authorized by the Customer to give Instructions with respect to one or more Accounts or with respect to foreign exchange, derivative investments or information and transactional web based services provided by the Custodian or a BNY Mellon Affiliate.
Authorized Persons shall include Persons authorized by an Authorized Person. Authorized Persons, their signatures and the extent of their authority shall be provided by a Certificate. The Custodian may conclusively rely on the authority of an
Authorized Person until it receives Written Instructions to the contrary.
“BNY Mellon Affiliate” shall mean any direct or
indirect subsidiary of The Bank of New York Mellon Corporation.
“BNY Mellon Group” shall have the meaning set
forth in Section 9.5.
“Book-Entry System” shall mean the United
States Federal Reserve/Treasury book-entry system for receiving and delivering securities, its successors and nominees.
“Business Day” shall mean any day on which the
Custodian and relevant Depositories are open for business.
“Centralized Functions” shall have the meaning
set forth in Section 9.5.
“Certificate” shall mean any notice,
instruction or other instrument in writing, authorized or required by this Agreement to be given to the Custodian, which is actually received by the Custodian by letter or facsimile transmission and signed on behalf of the Customer by two (2)
Authorized Persons or persons reasonably believed by the Custodian to be Authorized Persons.
“Country Risk Event” shall mean (a) issues
relating to the financial infrastructure of a country, (b) issues relating to a country’s prevailing custody and settlement practices, (c) nationalization, expropriation or other governmental actions, (d) issues relating to a country’s regulation of
the banking or securities industry, (e) currency controls, restrictions, devaluations, redenominations or fluctuations or (f) market conditions which affect the orderly execution of securities transactions or affect the value of securities.
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“Data Providers” shall mean pricing vendors,
analytics providers, brokers, dealers, investment managers, Authorized Persons, Subcustodians, Depositories and any other Person providing Market Data to the Custodian.
“Data Terms Website” shall mean ▇▇▇▇://▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or any successor website the address of which is provided by the Custodian to the Customer.
“Depository” shall include (a) the Book-Entry
System, (b) the Depository Trust Company, (c) any other clearing agency or securities depository registered with the Securities and Exchange Commission identified to the Customer from time to time and (d) the respective successors and nominees of the
foregoing.
“Economic Sanctions Compliance Program” shall
mean those programs, policies, procedures and measures designed to ensure compliance with, and prevent violations of, Sanctions.
“Foreign Depository” shall mean (a) Euroclear,
(b) Clearstream Banking, societe anonyme, (c) each Eligible Securities Depository as defined in Rule 17f-7 under the ‘40 Act identified to the Customer from time to time and (d) the respective successors and nominees of the foregoing.
“Instructions” shall mean Written Instructions
or Oral Instructions..
“Losses” shall mean, collectively, losses,
costs, expenses, damages, liabilities and claims.
“Market Data” shall mean pricing or other data
related to Securities and other assets. Market Data includes but is not limited to security identifiers, valuations, bond ratings, classification data and other data received from investment managers and others.
“Non-Custody Assets” shall have the meaning set
forth in Section 11.1.
“Operational Losses” shall have the meaning set
forth in Section 2.1.
“Oral Instructions” shall mean instructions
expressed in spoken words received by the Custodian. Where the Custodian provides recorded lines for this purpose, such instructions must be given using such lines.
“Person” or “Persons” shall mean any entity or individual.
“Replacement Subcustodian” shall have the
meaning set forth in Section 2.1.
“Required Care” shall have the meaning set
forth in Section 2.1.
“Sanctions” means all economic
sanctions, laws, rules, regulations, executive orders and requirements administered by any governmental authority of the United States (including the United States Office of Foreign Assets Control), the European Union (including any national
jurisdiction or member state thereof) and any other applicable authority with jurisdiction over a Customer.
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“Securities” shall include, without limitation,
any common stock and other equity securities, depository receipts, limited partnership and limited liability company interests, bonds, debentures and other debt securities, notes or other obligations, and any instruments representing rights to
receive, purchase or subscribe for the same, or representing any other rights or interests therein (whether represented by a certificate or held in a Depository, a Foreign Depository or with a Subcustodian or on the books of the issuer) that are
acceptable to the Custodian.)
“Shares” shall have the meaning set forth in
Section 6.1.
“Sweep Direction” shall mean in relation to any Sweep Investment (as defined below), a Written Instruction from each Customer, which may be a standing Written Instruction, and accepted by
Custodian which acknowledges and sets forth the terms and conditions of the Sweep Investment selected by Customer.
“Sweep Investment” means a registered or unregistered investment vehicle selected by
Customer and identified to Custodian (the “Customer Investment”) in the Sweep Direction in connection with which the Custodian is directed in a Sweep Direction
to automatically or otherwise in a purely ministerial capacity withdraw on a daily or other periodic basis some or all of the cash held in the applicable Customer’s Account at the designated Sweep Investment’s deadline on a Business Day to purchase
shares of the Customer Investment to be held in or credited to the applicable Customer’s Account and, in accordance with the Sweep Direction, sell shares of the Customer Investment and credit the applicable Customer’s Account such proceeds, less the
sum of any investment loss, fees, expenses or other charges assessed on the Sweep Investment, in accordance with the Sweep Direction.
“Subcustodian” shall mean a bank or other
financial institution (other than a Foreign Depository) located outside the United States which is utilized by the Custodian or by a BNY Mellon Affiliate in connection with the purchase, sale or custody of Securities or cash hereunder and is
identified to the Customer from time to time, and their respective successors and assigns.
“Tax Obligations” shall mean taxes,
withholding, certification and reporting requirements, claims for exemptions or refund, interest, penalties, additions to tax and other related expenses.
“Written Instructions” shall mean written
communications (including signed writings attached to and transmitted by electronic mail) actually received by Custodian by S.W.I.F.T., tested telex, letter, facsimile transmission, or other method or system specified by Custodian as available for
use in connection with the services hereunder.
1.2 Establishment of Account. (a) The
Customer hereby appoints the Custodian as the custodian of all Securities and cash at any time delivered to the Custodian to be held under this Agreement. The Custodian hereby accepts such appointment and agrees to establish and maintain one or
more accounts for each Customer in which the Custodian will hold Securities and cash as provided herein. Such accounts (each, an “Account,” and collectively, the “Accounts”) shall be in the name of the Customer.
(b) The Custodian may from time
to time establish on its books and records such sub-accounts within each Account as the Customer and the Custodian may agree upon (each a “Special Account”), and the Custodian shall reflect therein such assets as the Customer may specify in
Instructions.
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(c) The Custodian may from time
to time establish pursuant to a written agreement with and for the benefit of a broker, dealer, future commission merchant or other third party identified in Instructions such accounts on such terms and conditions as the Customer and the Custodian
shall agree, and the Custodian shall transfer to such account such Securities and cash as the Customer may specify in Written Instructions.
1.3 Representations and Warranties of Customer. The
Customer hereby represents and warrants, which representations and warranties shall be continuing and shall be deemed to be reaffirmed upon each giving of Instructions by the Customer, that:
(a) It is duly organized and
existing under the laws of the jurisdiction of its organization, with full power to carry on its business as now conducted, to enter into this Agreement and to perform its obligations hereunder;
(b) This Agreement has been duly
authorized, executed and delivered by the Customer, has been approved by a resolution of its board and constitutes a valid and legally binding obligation of the Customer, enforceable in accordance with its terms, and there is no statute,
regulation, rule, order or judgment binding on it, and no provision of its charter or by-laws, nor of any mortgage, indenture, credit agreement or other contract binding on it or affecting its property, which would prohibit its execution or
performance of this Agreement;
(c) It is conducting its
business in substantial compliance with all applicable laws and requirements, both state and federal, and has obtained all regulatory licenses, approvals and consents necessary to carry on its business as now conducted;
(d) It will not use the services
provided by the Custodian hereunder in any manner that is, or will result in, a violation of any law, rule or regulation applicable to the Customer;
(e) Its board or its foreign
custody manager, as defined in Rule 17f-5 under the Investment Company Act of 1940, as amended (the “‘40 Act”), has determined that use of each Subcustodian (including any Replacement Subcustodian) which the Custodian is authorized to utilize in
accordance with this Agreement satisfies the applicable requirements of the ‘40 Act and Rule 17f-5 thereunder;
(f) The Customer or its
investment adviser has determined that the custody arrangements of each Foreign Depository provide reasonable safeguards against the custody risks associated with maintaining assets with such Foreign Depository within the meaning of Rule 17f-7
under the ‘40 Act;
(g) It is fully informed of the
protections and risks associated with various methods of transmitting Instructions to the Custodian, shall safeguard and treat with extreme care any user and authorization codes, passwords and/or authentication keys, understands that there may be
more secure methods of transmitting or delivering the same than the methods selected by it, agrees that the security procedures (if any) to be followed in connection therewith provide a commercially reasonable degree of protection in light of its
particular needs and circumstances and acknowledges and agrees that Instructions need not be reviewed by the Custodian, may conclusively be presumed by the Custodian without inquiry to have been given by person(s) duly authorized and may be acted
upon as given;
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(h) It shall manage its
borrowings, including, without limitation, any advance or overdraft (including any day-light overdraft) in the Accounts, so that the aggregate of its total borrowings for each Customer does not exceed the amount such Customer is permitted to borrow
under the ‘40 Act;
(i) Its transmission or giving
of, and the Custodian acting upon and in reliance on, Instructions pursuant to this Agreement shall at all times comply with the ‘40 Act;
(j) It shall impose and
maintain restrictions on the destinations to which cash may be disbursed by Instructions to ensure that each disbursement is for a proper purpose;
(k) Either Customer owns the
Securities in the Accounts free and clear of all liens, claims, security interests and encumbrances (except those granted herein) or, if the Securities in an Account are owned beneficially by others, Customer has the right to pledge such Securities
to the extent necessary to secure Customer’s obligations hereunder, free of any right of redemption or prior claim by the beneficial owner. Custodian’s security interest pursuant to Section 5.4 hereof shall be a first lien and security interest
subject to no setoffs, counterclaims or other liens prior to or on a parity with it in favor of any other party (other than specific liens granted preferred status by statute), and Customer shall take reasonable measures which may be required to
assure Custodian of such priority and status, including notifying third parties or obtaining their consent to, Custodian’s security interest;
(l) Customer has established or
has contracted with a third party who has established and presently maintains an anti-money laundering program (the “Program”) reasonably designed
to prevent the applicable Customer from being used as a conduit for money laundering or other illicit purposes or the financing of terrorist activities, and is in compliance with the Program and all anti-money laundering laws, regulations and rules
now or hereafter in effect that are applicable to it;
(m) Customer or its third party
service provider has or will verify the identity of each of its investors and documented the origin of the assets funding each investor’s account with the applicable Customer, and to the best of Customer’s actual knowledge, no investor has invested
in Customer for money laundering or other illicit purposes;
(n) Customer will not knowingly
use the services provided by Custodian hereunder in any manner that is, or will result in, a violation of any law, rule or regulation applicable to Customer, and it will not include in any printed manner nor make any other statement or
representation regarding Custodian’s services under this Agreement except as specifically provided herein or as required pursuant to the ‘40 Act;
(o) Except as previously
disclosed to Custodian, Customer is not (i) an employee benefit plan (hereinafter, an “ERISA Plan”), as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”), that is subject to Part 4 of Subtitle B of Title I of ERISA, (ii) a “plan” to which
Section 4975 of the Internal Revenue Code of 1986, as amended, (the “Code”) applies, (iii) an entity whose underlying assets include the assets of
any such “employee benefit plan” or “plan” by reason of ERISA or the regulation issued by the U. S. Department of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV, Title 29 of the U.S. Code of Federal Regulations, as modified by Section
3(42) of ERISA, or otherwise for purposes of Section 406 of ERISA or Section 4975 of the Code, (iv) a “benefit plan investor” as such term is otherwise defined in any regulations promulgated by the U.S. Department of Labor under Section 3(42) of
ERISA;
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(p) In giving any instructions,
which purport to be Written Instructions under this Agreement, Customer or any Authorized Person on behalf of Customer shall have the power and authority to give such Written Instructions, all such instructions shall be in accordance with the
documents establishing Customer and any related laws and regulations applicable to Customer or its Authorized Persons and no such instructions or transaction entered into hereunder shall cause or result in a “prohibited transaction” under ERISA or
Section 4975 of the Code; and
(q) Customer acknowledges that
the representations and warranties in this Agreement are continuing in nature and agrees to notify the Custodian promptly in the event any of the Customer’s representations are no longer accurate and complete.
1.4 Representations and Warranties of Custodian. The
Custodian hereby represents and warrants that:
(a) It is duly organized and
existing under the laws of the jurisdiction of its organization, with full power to carry on its business as now conducted, to enter into this Agreement and to perform its obligations hereunder;
(b) This Agreement has been duly
authorized, executed and delivered by the Custodian, has been approved by a resolution of its board and constitutes a valid and legally binding obligation of the Custodian, enforceable in accordance with its terms, and there is no statute,
regulation, rule, order or judgment binding on it, and no provision of its charter or by-laws, nor of any mortgage, indenture, credit agreement or other contract binding on it or affecting its property, which would prohibit its execution or
performance of this Agreement;
(c) It is conducting its
business in substantial compliance with all applicable laws and requirements, both state and federal, in each case, applicable to it and has obtained all regulatory licenses, approvals and consents necessary to carry on its business as now
conducted;
(d) Its performance of its
obligations and its provision of the services described in this Agreement shall be in accordance with laws, rules and regulations applicable to it.
(e) Custodian
acknowledges that the representations and warranties in this Agreement are continuing in nature and agrees to endeavor to notify the Customer promptly in the event any of the Custodian’s representations are no longer accurate and complete.
1.5 Distributions. The Custodian shall make
distributions or transfers out of an Account pursuant to Instructions. In making payments to service providers pursuant to Instructions, the Customer acknowledges that the Custodian is acting in an administrative or in a ministerial capacity, and
not as the payor, for tax information reporting and withholding purposes.
1.6 Authorized Instructions. The Custodian
shall be entitled to rely upon any Oral Instructions or Written Instructions actually received by the Custodian and reasonably believed by the Custodian to be from an Authorized Person (“Authorized Instructions”). Notwithstanding any other
provision included in this Agreement, Written Instructions relating to the disbursement of cash of the Customer other than in connection with the purchase, sale or settlement of Securities, shall be in the form of a Certificate. The Customer agrees
that an Authorized Person shall forward to the Custodian Written Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to the Custodian. The Customer agrees that the fact Written
Instructions confirming Oral Instructions are not received or that contrary Written Instructions are received by the Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected
by the Custodian.
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1.7 Authentication. If the Custodian receives Written Instructions that appear on their face to have been transmitted by an Authorized Person via (i) facsimile or other electronic method
that is not secure or (ii) secure electronic transmission containing applicable authorization codes, passwords or authentication keys, the Customer understands and agrees that the Custodian cannot reasonably determine the identity of the actual
sender of such Written Instructions and that the Custodian shall be entitled to conclusively presume that such Written Instructions have been sent by an Authorized Person. The Customer shall be responsible for ensuring that only Authorized Persons
transmit Written Instructions to the Custodian and that all Authorized Persons safeguard and treat with extreme care applicable user and authorization codes, passwords and authentication keys.
1.8 On-Line Systems. If an Authorized Person
elects to transmit Instructions through an on-line communication system offered by the Custodian, the use thereof shall be subject to any terms and conditions contained in a separate written agreement. If the Customer or an Authorized Person
elects, with the Custodian’s prior consent, to transmit Instructions through an on-line communications service owned or operated by a third party, the Customer agrees that the Custodian shall not be responsible or liable for the reliability or
availability of any such service.
SECTION 2 – CUSTODY
SERVICES
2.1 Holding Securities. (a) Subject to the
terms hereof, the Customer hereby authorizes the Custodian to hold any Securities received by it from time to time for the Customer’s account in registered form in the name of the Custodian or one of its nominees. Securities held for the Customer
hereunder shall be segregated on the Custodian’s books and records from the Custodian’s own property. The Custodian shall be entitled to utilize, subject to subsection (d) of this Section 2.1, Subcustodians, Depositories, and subject to subsection
(e) of this Section 2.1, Foreign Depositories in connection with its performance hereunder. Securities and cash held through a Subcustodian shall be held subject to the terms and conditions of the Custodian’s or a BNY Mellon Affiliate’s agreements
with such Subcustodian. Securities and cash deposited by the Custodian in a Depository or Foreign Depository will be held subject to the rules, terms and conditions of such entity. Subcustodians may be authorized to hold Securities in
Depositories or Foreign Depositories in which such Subcustodian participates. Unless otherwise required by local law or practice or a particular subcustodian agreement, Securities deposited with Subcustodians, Depositories or Foreign Depositories
will be held in a commingled account in the name of the Custodian or a BNY Mellon Affiliate for the Customer. The Custodian shall identify on
its books and records the Securities and cash belonging to the Customer, whether held directly or indirectly through Subcustodians, Depositories or Foreign Depositories. The Custodian shall, directly or indirectly through Subcustodians,
Depositories or Foreign Depositories, endeavor, to the extent feasible, to hold Securities in the country or other jurisdiction in which the principal trading market for such Securities is located, where such Securities are to be presented
for cancellation and/or payment and/or registration or where such Securities are acquired. The Custodian at any time may cease utilizing any Subcustodian and/or may replace a Subcustodian with a different Subcustodian (a “Replacement
Subcustodian”). In the event the Custodian selects a Replacement Subcustodian, the Custodian shall not utilize such Replacement Subcustodian until after the Customer’s board or foreign custody manager has determined that utilization of such
Replacement Subcustodian satisfies the requirements of the ‘40 Act and Rule 17f-5 thereunder.
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(b) The Custodian shall exercise
reasonable care in the selection or retention, monitoring and continued use of a Subcustodian in light of prevailing rules, terms, practices and procedures in the relevant market (“Required Care”). The Custodian shall be liable for repayment to
the Customer of cash credited to an Account and cash credited to the Customer’s or the Custodian’s cash account at a Subcustodian that the Custodian is not able to recover from the Subcustodian (other than as a result of a Country Risk Event).
With respect to any Losses incurred by the Customer as a result of an act or the failure to act by any Subcustodian (“Operational Losses”), the Custodian shall be liable for: (i) Operational Losses with respect to Securities or cash held by the
Custodian with or through a BNY Mellon Affiliate to the extent the Custodian would be liable under this Agreement if the applicable act or failure to act was that of the Custodian; and (ii) Operational Losses with respect to Securities or cash held
by the Custodian with or through a Subcustodian (other than a BNY Mellon Affiliate) to the extent that such Operational Losses were directly caused by failure on the part of the Custodian to exercise Required Care; provided that in no event shall
the Custodian have any liability for Operational Losses arising out of or relating to a Country Risk Event. With respect to all other Operational Losses not covered by clauses (i) and (ii) (including the proviso) above, the Custodian shall take
appropriate action to recover such Operational Losses from the applicable Subcustodian and the Custodian’s sole liability shall be limited to amounts recovered from such Subcustodian (exclusive of costs and expenses incurred by the Custodian).
(c) Unless the Custodian has
received Written Instructions to the contrary, the Custodian shall hold Securities indirectly through a Subcustodian only if (i) the Securities are not subject to any right, charge, security interest, lien or claim of any kind in favor of such
Subcustodian or its creditors or operators, including a receiver or trustee in bankruptcy or similar authority, except for a claim of payment for the safe custody or administration of Securities on behalf of the Customer by such Subcustodian and
(ii) beneficial ownership of the Securities is freely transferable without the payment of money or value other than for safe custody or administration.
(d) With respect to each
Depository, the Custodian (i) shall exercise due care in accordance with reasonable commercial standards in discharging its duties as a securities intermediary hereunder to obtain and thereafter maintain Securities or financial assets deposited or
held in such Depository and (ii) will provide, promptly upon request by the Customer, such reports as are available concerning the internal accounting controls and financial strength of the Custodian.
(e) With respect to each Foreign
Depository, the Custodian shall exercise reasonable care, prudence and diligence (i) to provide the Customer with an analysis of the custody risks associated with maintaining assets with the Foreign Depository and (ii) to monitor such custody risks
on a continuing basis and promptly notify the Customer of any material change in such risks. The Customer acknowledges and agrees that such analysis and monitoring shall be made on the basis of, and limited by, information gathered from
Subcustodians or through publicly available information otherwise obtained by the Custodian, and shall not include any evaluation of Country Risk Events.
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2.2 Depositories. The Custodian shall have
no liability whatsoever for the action or inaction of a Depository or a Foreign Depository or for any Losses resulting from the maintenance of assets with a Depository or a Foreign Depository except to the extent that such Losses were solely and
directly caused by failure on the part of the Custodian to exercise the applicable standard of care set forth in Section 2.1; provided that in no event shall the Custodian have any liability for Losses arising out of or relating to a Country Risk
Event.. Notwithstanding the foregoing sentence, the Custodian shall be liable for repayment to the Customer of cash credited to the Customer’s, the Custodian’s or a Subcustodian’s account at a Depository or a Foreign Depository that the Custodian
is not able to recover from the Depository or Foreign Depository (other than as a result of a Country Risk Event).
2.3 Agents. The Custodian may appoint
agents, including BNY Mellon Affiliates, on such terms and conditions as it deems appropriate to perform its services hereunder. Except as otherwise provided herein, no such appointment shall discharge the Custodian from its obligations hereunder.
2.4 Custodian Actions without Direction. With
respect to Securities held hereunder, the Custodian shall:
(a) Receive all eligible income
and other payments due to the Accounts and make available reports through Custodian’s online reporting and communications portal to the Customer as promptly as practicable of any such amounts due but not paid;
(b) Present for payment and
receive the amount paid upon all Securities which may mature and make available reports through Custodian’s online reporting and communications portal to the Customer as promptly as practicable of any such amounts due but not paid;
(c) Carry out any exchanges of
Securities or other corporate actions not requiring discretionary decisions;
(d) Facilitate access by the Customer or its designee to ballots or online systems to assist in the voting of proxies received by the Custodian in its capacity as custodian for eligible positions of Securities held in the Accounts (excluding
bankruptcy matters);
(e) Forward to the Customer or
its designee information (or summaries of information) that the Custodian receives in its capacity as custodian (including from Depositories or Subcustodians) concerning Securities in the Accounts (excluding bankruptcy matters);
(f) Forward to the Customer or
its designee an initial notice of bankruptcy cases relating to Securities held in the Accounts and a notice of any required action related to such bankruptcy cases as may be received by the Custodian in its capacity as custodian. No further action
or notification related to the bankruptcy case shall be required;
(g) Endorse for collection
checks, drafts or other negotiable instruments; and
(h) Execute and deliver, solely
in its custodial capacity, certificates, documents or instruments incidental to the Custodian’s performance under this Agreement.
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2.5 Custodian Actions with Direction. The
Custodian shall take the following actions in the administration of the Accounts only pursuant to Authorized Instructions:
(a) Settle purchases and sales
of Securities and process other transactions, including free receipts and deliveries to a broker, dealer, future commission merchant or other third party specified in Instructions;
(b) Take actions necessary to
settle transactions in connection with futures or options contracts, short-selling programs, foreign exchange or foreign exchange contracts, swaps and other derivative investments; and
(c) Deliver Securities in an
Account if an Authorized Person advises the Custodian that the Customer has entered into a separate securities lending agreement, provided that the Customer executes such agreements as the Custodian may require in connection with such arrangements.
2.6 Foreign Exchange Transactions. (a) For
the purpose of settling Securities and foreign exchange transactions, the Customer shall provide the Custodian with sufficient immediately available funds for all transactions by such time and date as conditions in the relevant market dictate. As
used herein, “sufficient immediately available funds” shall mean either (i) sufficient cash denominated in United States dollars to purchase the necessary foreign currency or (ii) sufficient applicable foreign currency, to settle the transaction.
The Custodian shall provide the Customer with immediately available funds each day which result from the actual settlement of all sale transactions, based upon advices received by the Custodian from Subcustodians, Depositories and Foreign
Depositories. Such funds shall be in United States dollars or such other currency as the Customer may specify to the Custodian.
(b) Any foreign exchange
transaction effected by the Custodian in connection with this Agreement may be entered with the Custodian or a BNY Mellon Affiliate acting as a principal or otherwise through customary channels. The Customer may issue standing Instructions with
respect to foreign exchange transactions, but the Custodian may establish rules or limitations concerning any foreign exchange facility made available to the Customer.
SECTION 3 – CORPORATE
ACTIONS
3.1 Custodian Notification. The Custodian
shall notify the Customer or its designee of rights or discretionary corporate actions as promptly as practicable under the circumstances, provided that the Custodian in its capacity as custodian has actually received notice of such right or
discretionary corporate action from the relevant Subcustodian or Depository. Without actual receipt of such notice by the Custodian in its capacity as custodian the Custodian shall have no liability for failing to so notify the Customer.
3.2 Direction. Whenever there are voluntary
rights that may be exercised or alternate courses of action that may be taken by reason of the Customer’s ownership of Securities, the Customer or its designee shall be responsible for making any decisions relating thereto and for directing the
Custodian to act. In order for the Custodian to act, it must receive Instructions using the Custodian generated form or clearly marked as instructions for the decision at the Custodian’s offices addressed as the Custodian may from time to time
request, by such time as the Custodian shall advise the Customer or its designee. If the Custodian does not receive such Instructions by such deadline, the Custodian shall not be liable for failure to take any action relating to or to exercise any
rights conferred by such Securities.
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3.3 Voting Rights. All voting rights with
respect to Securities, however registered, shall be exercised by the Customer or its designee. The Custodian will make available to the Customer proxy voting services upon the request of, and for the jurisdictions selected by, the Customer in
accordance with terms and conditions to be mutually agreed upon by the Custodian and the Customer.
3.4 Partial Redemptions, Payments, Etc.. The
Custodian shall promptly advise the Customer or its designee upon its notification in its capacity as custodian of a partial redemption, partial payment or other action with respect to a Security affecting fewer than all such Securities held within
an Account. If the Custodian or any Subcustodian, Depository or Foreign Depository holds any Securities affected by one of the events described, the Custodian, Subcustodian, Depository or Foreign Depository may select the Securities to participate
in such partial redemption, partial payment or other action in any non-discriminatory manner that it customarily uses to make such selection.
SECTION 4 – SETTLEMENT
OF TRADES
4.1 Payments. Promptly after each purchase
or sale of Securities by the Customer, an Authorized Person shall deliver to the Custodian Instructions specifying all information necessary for the Custodian to settle such purchase or sale. For the purpose of settling purchases of Securities,
the Customer shall provide the Custodian with sufficient immediately available funds for all such transactions by such time and date as conditions in the relevant market dictate.
4.2 Contractual Settlement and Income. The
Custodian may, as a matter of bookkeeping convenience, credit an Account with the proceeds from the sale, redemption or other disposition of Securities or interest, dividends or other distributions payable on Securities prior to its actual receipt
of final payment therefor. All such credits shall be conditional until the Custodian’s actual receipt of final payment and may be reversed by the Custodian to the extent that final payment is not received. Payment with respect to a transaction
will not be “final” until the Custodian shall have received immediately available funds that under applicable local law, rule and practice are irreversible and not subject to any security interest, levy or other encumbrance, and that are
specifically applicable to such transaction.
4.3 Trade Settlement. Transactions will be
settled using practices customary in the jurisdiction or market where the transaction occurs. The Customer understands that when the Custodian is instructed to deliver Securities against payment, delivery of such Securities and receipt of payment
therefor may not be completed simultaneously. The Customer assumes full responsibility for all risks involved in connection with the Custodian’s delivery of Securities pursuant to Authorized Instructions in accordance with local market practice.
SECTION 5 – DEPOSITS
AND ADVANCES
5.1 Deposits. The Custodian may hold cash
in Accounts or may arrange to have cash held by a BNY Mellon Affiliate or Subcustodian, or with a Depository or Foreign Depository. Where cash is on deposit with
the Custodian, a Subcustodian or a BNY Mellon Affiliate, it will be subject to the terms of this Agreement and such deposit terms and conditions as may be issued by the Custodian or a BNY Mellon Affiliate or Subcustodian, to the extent applicable,
from time to time, including rates of interest and deposit account access.
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5.2 Sweep and Float. Customer may, from
time to time, provide to Custodian the Sweep Direction. Upon receipt of the Sweep Direction, and after having a reasonable amount of time to implement and process the instruction, Custodian shall automatically invest all of the cash on deposit in
or credited to the applicable Customer’s Account in the Sweep Investment selected by such Customer. Any and all shares of and any earnings on the Sweep Investment purchased pursuant to the Sweep Direction shall be maintained in or credited to the
applicable Customer’s Account (subject to the terms and conditions of this Agreement and Sweep Direction). Each Customer acknowledges that a Sweep Investment may be offered by a BNY Mellon Affiliate or by a client of the Custodian and Custodian
may receive compensation therefrom. The Customer acknowledges that, as part of the Custodian’s compensation, the Custodian will earn interest on cash balances held by the Custodian, including disbursement balances and balances arising from
purchase and sale transactions, as provided in the Custodian’s indirect compensation disclosures. Each Customer agrees to furnish to Custodian the Sweep Direction and, in the event of any change to the Sweep Direction including, without
limitation, the Sweep Investment selected by Customer, Custodian shall be fully protected in acting in accordance with the then effective Sweep Direction until such new Sweep Direction is received and implemented. With respect to the Sweep
Direction and Sweep Investment, Custodian shall have no liability for any loss incurred on any such investments. Each Customer acknowledges and agrees, the Custodian shall have no obligation, responsibility or duty to provide investment advice to
Customer in respect of the Sweep Direction and selection of the Sweep Investment. The Customer acknowledges that, as part of the Custodian’s compensation, the Custodian will earn interest on cash balances held by the Custodian, including
disbursement balances and balances arising from purchase and sale transactions, as disclosed in the Custodian’s float policy.
5.3 Overdrafts and Indebtedness. The
Custodian may, in its sole discretion, advance funds in any currency hereunder. If an overdraft occurs in an Account (including, without limitation, overdrafts incurred in connection with the settlement of securities transactions, funds transfers
or foreign exchange transactions) or if the Customer is for any other reason indebted to the Custodian, the Customer agrees to repay the Custodian on demand or upon becoming aware of the amount of the advance, overdraft or indebtedness, plus
accrued interest at a rate then charged by the Custodian to its institutional custody clients in the relevant currency.
5.4 Securing Repayment. In order to secure
repayment of the Customer’s obligations to the Custodian, the Customer hereby pledges and grants to the Custodian and agrees the Custodian shall have to the maximum extent permitted by law, a continuing first lien and security interest in, and
right of setoff against: (a) all of the Customer’s right, title and interest in and to all Accounts in the Customer’s name and the Securities, cash and other property now or hereafter held in such Accounts (including proceeds thereof) and (b) any
other property at any time held by the Custodian for the Customer. The Customer represents, warrants and covenants that it owns the Securities in the Accounts free and clear of all liens, claims and security interests, and that the first lien and
security interest granted herein shall be subject to no setoffs, counterclaims or other liens prior to or on a parity with it in favor of any other party (other than specific liens granted preferred status by statute). The Customer shall take all
reasonable steps required to assure the Custodian of such priority security interest, including notifying third parties or obtaining their consent. The Custodian shall be entitled to collect from the Accounts sufficient cash for reimbursement, and
if such cash is insufficient, to sell the Securities in the Accounts to the extent necessary to obtain reimbursement. In this regard, the Custodian shall be entitled to all the rights and remedies of a pledgee and secured creditor under applicable
laws, rules and regulations as then in effect.
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5.5 Setoff. The Custodian has the right to
debit any cash in the Accounts for any amount payable by the Customer in connection with any and all obligations of the Customer to the Custodian whether or not relating to or arising under this Agreement. In addition to the rights of the
Custodian under applicable law and other agreements, at any time when the Customer shall not have honored any and all of its obligations to the Custodian, the Custodian shall have the right without notice to the Customer to retain or set-off
against such obligations of the Customer any cash the Custodian or a BNY Mellon Affiliate may directly or indirectly hold for the Customer, and any obligations (whether or not matured) that the Custodian or a BNY Mellon Affiliate may have to the
Customer in any currency. Any such asset of, or obligation to, the Customer may be transferred to the Custodian and any BNY Mellon Affiliate in order to effect the above rights.
5.6 Bank Borrowings. If the Customer
borrows money from any bank (including the Custodian if the borrowing is pursuant to a separate agreement) for investment or for temporary or emergency purposes using Securities held by the Custodian hereunder as collateral for such borrowings, the
Customer shall deliver to the Custodian Instructions specifying with respect to each such borrowing: (a) the Customer to which such borrowing relates, (b) the name of the bank, (c) the amount of the borrowing, (d) the time and date, if known, on
which the loan is to be entered into, (e) the total amount payable to the Customer on the borrowing date, (f) the Securities to be delivered as collateral for such loan, including the name of the issuer, the title and the number of shares or the
principal amount of any particular Securities and (g) a statement specifying that such loan is in conformance with the ‘40 Act and the Customer’s prospectus. The Custodian shall deliver on the borrowing date specified in Instructions the specified
collateral against payment by the lending bank of the total amount of the loan payable, provided that the same conforms to the total amount payable as set forth in the Instructions. The Custodian may, at the option of the lending bank, keep such
collateral in its possession, but such collateral shall be subject to all rights therein given the lending bank by virtue of any promissory note or loan agreement. The Custodian shall deliver such Securities as additional collateral as may be
specified in Instructions to collateralize further any transaction described in this Section 5.6. The Customer shall cause all Securities released from collateral status to be returned directly to the Custodian, and the Custodian shall receive
from time to time such return of collateral as may be tendered to it. In the event that the Customer fails to specify in Instructions the Customer, the name of the issuer of the Securities to be delivered as collateral by the Custodian, or the
title and number of shares or the principal amount of any particular Securities to be delivered as collateral by the Custodian, the Custodian shall not be under any obligation to deliver any Securities.
SECTION 6 – SALE AND
REDEMPTION OF SHARES
6.1 Sale of Shares. Whenever the Customer
shall sell any shares issued by the Customer (“Shares”) it shall deliver to the Custodian Instructions specifying the amount of cash and/or Securities to be received by the Custodian for the sale of such Shares and specifically allocated to an
Account for such Customer. Upon receipt of such cash, the Custodian shall credit such cash to an Account in the name of the Customer for which such cash was received.
6.2 Redemption of Shares. Except as provided
hereinafter, whenever the Customer desires the Custodian to make payment out of the cash held by the Custodian hereunder in connection with a redemption of any Shares, it shall furnish to the Custodian Instructions specifying the total amount to be
paid for such Shares. The Custodian shall make payment of such total amount to the transfer agent specified in such Instructions out of the cash held in an Account of the appropriate Customer.
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6.3 Check Redemptions. Notwithstanding the
above provisions regarding the redemption of any Shares, whenever any Shares are redeemed pursuant to any check redemption privilege which may from time to time be offered by the Customer, the Custodian, unless otherwise instructed by Instructions,
shall, upon presentment of such check, charge the amount thereof against the cash held in the Account of the Customer of the Shares being redeemed, provided, that if the Customer or its agent timely advises the Custodian that such check is not to
be honored, the Custodian shall return such check unpaid.
SECTION 7 – PAYMENT OF
DIVIDENDS AND DISTRIBUTIONS
7.1 Determination to Pay. Whenever the
Customer shall determine to pay a dividend or distribution on Shares it shall furnish to the Custodian Instructions setting forth with respect to the Customer specified therein the date of the declaration of such dividend or distribution, the total
amount payable and the payment date.
7.2 Payment. Upon the payment date
specified in such Instructions, the Custodian shall pay out of the cash held for the account of such Customer the total amount payable to the dividend agent of the Customer specified therein.
SECTION 8 – TAXES,
REPORTS AND RECORDS
8.1 Tax Obligations. The Customer shall be
liable for all taxes, assessments, duties and other governmental charges, including interest and penalties, with respect to any cash and Securities held on behalf of the Customer and any transaction related thereto. To the extent that the
Custodian has received relevant and necessary information with respect to an Account, the Custodian shall perform the following services with respect to Tax Obligations:
(a) The Custodian shall, upon
receipt of sufficient information, file claims for exemptions or refunds with respect to withheld foreign (non-United States) taxes in instances in which such claims are appropriate;
(b) The Custodian shall
withhold appropriate amounts, as required by United States tax laws, with respect to amounts received on behalf of nonresident aliens upon receipt of Instructions. Custodian shall endeavor to provide or otherwise make available to the Customer
information in connection with withholding; and
(c) The Custodian shall provide
to the Customer such information received by the Custodian (in its capacity as custodian) that could, in the Custodian’s reasonable belief, assist the Customer or its designee in the submission of any reports or returns with respect to Tax
Obligations. An Authorized Person shall inform the Custodian in writing as to which party or parties shall receive such information from the Custodian.
8.2 Pricing and Other Data. In providing
Market Data related to the Accounts in connection with this Agreement, the Custodian is authorized to use Data Providers. The Custodian may follow Authorized Instructions in providing pricing or other Market Data, even if such instructions direct
the Custodian to override its usual procedures and Market Data sources.. The Custodian shall be entitled to rely without inquiry on all Market
Data (and all Authorized Instructions related to Market Data) provided to it by Customer or its agent, and the Custodian shall not be liable for any Losses incurred as a result of errors or omissions with respect to any Market Data utilized by the
Custodian or the Customer hereunder. The Customer acknowledges that certain pricing or valuation information may be based on calculated amounts rather than actual market transactions and may not reflect actual market values, and that the variance
between such calculated amounts and actual market values may be material. The Custodian shall not be required to inquire into the pricing of any Securities or other assets even though the Custodian may receive different prices for the same
Securities or assets. Market Data may be the intellectual property of the Data Providers, which may impose additional terms and conditions upon the Customer’s use of the Market Data. The additional terms and conditions can be found in the Data
Terms Website. The Customer agrees to those terms as they are posted in the Data Terms Website from time to time. Certain Data Providers may not permit the Customer’s directed price to be used. Performance measurement and analytic services may
use different data sources than those used by the Custodian to provide Market Data for an Account, with the result that different prices and other Market Data may apply.
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8.3 Statements and Reports. The Custodian
shall make available to the Customer a monthly report of all transfers to or from the Accounts and a statement of all holdings in the Accounts as of the last Business Day of each month. The Customer may elect to receive certain information
electronically through the Internet to an email address specified by it for such purpose. By electing to use the Internet for this purpose, the Customer acknowledges that such transmissions are not encrypted and therefore are not secure. The
Customer further acknowledges that there are other risks inherent in communicating through the Internet such as the possibility of virus contamination and disruptions in service, and agrees that the Custodian shall not be responsible for any Losses
suffered or incurred by the Customer or any person claiming by or through the Customer as a result of the use of such methods.
8.4 Review of Reports. If, within ninety
(90) days after the Custodian makes available to the Customer a statement with respect to the Accounts, the Customer has not given the Custodian written notice of any exception or objection thereto, the statement shall be deemed to have been
approved, and in such case, the Custodian shall not be liable for any claims concerning such statement.
8.5 Books and Records. The books and records
pertaining to the Customer which are in possession of the Custodian shall be the property of the Customer. Such books and records shall be prepared and maintained by the Custodian as required by the ‘40 Act, the rules thereunder and any other
applicable laws, rules or regulations applicable to the Custodian. The Customer, or its authorized representatives, shall have access to such books and records during the Custodian’s normal business hours. Upon the reasonable request of the
Customer, copies of any such books and records shall be provided by the Custodian to the Customer or its authorized representative. Upon the reasonable request of the Customer, the Custodian shall provide in hard copy or on computer disc any
records included in any such delivery which are maintained by the Custodian on a computer disc, or are similarly maintained.
8.6 Required Disclosure. With respect to
Securities issued in the United States, the Shareholder Communications Act of 1985 (the “Act”) requires the Custodian to disclose to issuers, upon their request, the name, address and securities position of the Custodian’s clients who are
“beneficial owners” (as defined in the Act) of the issuer’s Securities, unless the beneficial owner objects to such disclosure. The Act defines a “beneficial owner” as any person who has or shares the power to vote a security (pursuant to an
agreement or otherwise) or who directs the voting of a security. The Customer represents that it is the beneficial owner of the Securities. As beneficial owner it has designated below whether it objects to the disclosure of its name, address and
securities position to any United States issuer that requests such information pursuant to the Act for the specific purpose of direct communications between such issuer and the Customer.
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With respect to Securities issued outside the United States, the Custodian shall disclose information required by law, regulation, rules
of a stock exchange or organizational documents of an issuer. The Custodian is also authorized to supply any information regarding the Accounts that is required or requested by governmental or regulatory authorities or by any law, regulation or
rules now or hereafter in effect. The Customer agrees to supply the Custodian with any required information if it is not otherwise reasonably available to the Custodian.
Pursuant to this Section 8.6, as Beneficial Owner:
[ ] The Customer OBJECTS to disclosure
[ ] The Customer DOES NOT OBJECT to disclosure
IF NO BOX IS CHECKED, THE CUSTODIAN SHALL RELEASE SUCH
INFORMATION UNTIL IT RECEIVES A CONTRARY INSTRUCTION FROM THE FUND.
8.7 Tools. From time to time the Custodian
may make available to the Customer or its agent(s) certain computer programs, products, services, reports or information (including, without limitation, information obtained by the Custodian from third parties and information reflecting the
Custodian’s input, evaluation and interpretation) (collectively, “Tools”). Tools may allow the Customer or its agent(s) to perform certain analytic, accounting, compliance, reconciliation and other functions with respect to an Account. By way of
example, Tools may assist the Customer or its agent(s) in analyzing the performance of investment advisers appointed by the Customer, determining on a post-trade basis whether transactions for an Account comply with the Customer’s investment
guidelines, evaluating assets at risk and performing account reconciliations. Tools, as well as practices and processes developed by or for the Custodian in connection with the services provided to the Customer, (1) may be used only for the
Customer’s internal purposes, and may not be resold, redistributed or otherwise made available to third parties and (2) are the sole and exclusive property of the Custodian (and its suppliers if applicable). The Customer may not reverse engineer
or decompile any computer programs provided by the Custodian comprising, or provided as a part of, any Tools. Information supplied by third parties may be incorrect or incomplete, and any information, reports, analytics or other services supplied
by the Custodian that rely on information from third parties may also be incorrect or incomplete. All Tools are provided “AS IS”, whether or not they are modified to meet specific needs of the Customer and regardless of whether the Custodian is
compensated by the Customer for providing such Tools. THE CUSTODIAN DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE TOOLS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS
FOR A PARTICULAR PURPOSE. ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE CUSTODIAN AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY LOSS, COST, EXPENSE, DAMAGE, LIABILITY OR CLAIM SUFFERED OR INCURRED BY THE FUND, ITS AGENT(S) OR ANY
OTHER PERSON AS A RESULT OF USE OF, INABILITY TO USE OR RELIANCE UPON ANY TOOLS.
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SECTION 9 – PROVISIONS
REGARDING THE CUSTODIAN
9.1 Standard of Care. In performing its
duties under this Agreement, the Custodian shall exercise the standard of care and diligence that a professional custodian would observe in these affairs.
9.2 Limitation of Duties and Liability.
Notwithstanding anything contained elsewhere in this Agreement, the Custodian’s liability hereunder is limited as follows:
(a) The duties of the Custodian
shall only be those specifically undertaken pursuant to this Agreement and shall be subject to such other limits on liability as are set out herein;
(b) The Custodian shall not be
liable for any Losses that are not a result of the Custodian’s negligence or willful misconduct;
(c) The Custodian shall not be
responsible for the title, validity or genuineness of any Securities or evidence of title thereto received by it or delivered by it pursuant to this Agreement or for Securities held hereunder being freely transferable or deliverable without
encumbrance in any relevant market;
(d) The Custodian shall not be
responsible for the failure to receive payment of, or the late payment of, income or other payments due to an Account;
(e) The Custodian shall have no
duty to take any action to collect any amount payable on Securities in default or if payment is refused after due demand and presentment;
(f) The Custodian may obtain
the advice of counsel and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice;
(g) The Custodian shall have no
duty or responsibility to inquire into, make recommendations, supervise or determine the suitability of any transactions affecting any Account and shall have no liability with respect to the Customer’s or an Authorized Person’s decision to invest
in Securities or to hold cash in any currency;
(h) The Custodian shall have no
responsibility if the rules or procedures imposed by Depositories or Foreign Depositories, exchange controls, asset freezes or other laws, rules, regulations or orders at any time prohibit or impose burdens or costs on the transfer of Securities or
cash to, by or for the account of the Customer; and
(i) The Custodian shall have no
liability for any Losses arising from the insolvency of any Person, including but not limited to a Subcustodian, Depository, Foreign Depository, broker, bank or counterparty to the settlement of a transaction or a foreign exchange transaction,
except as provided in Section 2.1 and Section 2.2.
9.3 Losses. Under no circumstances shall the
Custodian be liable to the Customer or any third party for indirect, consequential or special damages, or lost profits or loss of business, arising in connection with this Agreement, even if the Custodian has been advised of the possibility of such
damages.
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9.4 Gains. Where an error or omission has
occurred under this Agreement, the Custodian may take such remedial action as it considers appropriate under the circumstances and, provided that the Customer is put in the same or equivalent position as it would have been in if the error or
omission had not occurred, any favorable consequences of the Custodian’s remedial action shall be solely for the account of the Custodian, without any duty to report to the Customer any loss assumed or benefit received by it as a result of taking
such action.
9.5 Centralized Functions. The Bank of New
York Mellon Corporation is a global financial organization that provides services to clients through its affiliates and subsidiaries in multiple jurisdictions (the “BNY Mellon Group”). The BNY Mellon Group may centralize functions, including audit, accounting, risk, legal, compliance, sales, administration, product communication, relationship management, storage, compilation and
analysis of customer-related data, and other functions (the “Centralized Functions”) in one or more affiliates, subsidiaries and third-party
service providers. Notwithstanding anything contained elsewhere in this Agreement, solely in connection with the Centralized Functions, (i) the Customer consents to the disclosure of, and authorizes Custodian to disclose, information regarding the
Customer and its accounts (“Customer-Related Data”) to the BNY Mellon Group and to its third-party service providers who are subject to
confidentiality obligations with respect to such information and (ii) Custodian may store the names and business addresses of the Customer’s employees on the systems or in the records of the BNY Mellon Group or its service providers. In addition,
the BNY Mellon Group may aggregate Customer-Related Data with other data collected and/or calculated by the BNY Mellon Group, and the BNY Mellon Group will own all such aggregated data, provided that the BNY Mellon Group shall not distribute the
aggregated data in a format that identifies Customer-Related Data with the Customer. The Customer is authorized to consent to the foregoing and confirms that the disclosure to and storage by the BNY Mellon Group of such information does not
violate any relevant data protection legislation. In addition, Custodian may disclose Customer-Related Data as required by law or at the request of any governmental or regulatory authority.
9.6 Force Majeure. Notwithstanding anything
in this Agreement to the contrary, the Custodian shall not be responsible or liable for any failure to perform under this Agreement or for any Losses to any Account resulting from any event beyond the reasonable control of the Custodian.
9.7 Fees. The Customer shall pay to the
Custodian the fees and charges as may be specifically agreed upon from time to time and such other fees and charges at the Custodian’s standard rates for such services as may be applicable. The Customer shall also reimburse the Custodian for
out-of-pocket expenses that are a normal incident of the services provided hereunder.
9.8 Indemnification. The Customer shall
indemnify and hold harmless the Custodian from and against all Losses, including reasonable counsel fees and expenses in third party suits and in a successful defense of claims asserted by the Customer, relating to or arising out of the performance
of the Custodian’s obligations under this Agreement, except to the extent resulting from the Custodian’s negligence or willful misconduct. This provision shall survive the termination of this Agreement.
9.9 Confidentiality. The parties agree that all information, books and records provided by the Custodian or the Customer to each other in
connection with this Agreement, and all information provided by either party pertaining to its business or operations, is “Confidential Information.” All Confidential Information shall be used by the party receiving such information only for the
purpose of providing or obtaining services under this Agreement or otherwise in accordance with the terms of this Agreement and, except as may be required to carry out the terms of this Agreement, shall not be disclosed to any other party without
the express written consent of the party providing such Confidential Information. The foregoing limitations shall not apply to any information that is available to the general public other than as a result of a breach of this Agreement, or that is
required to be disclosed by or to any entity having regulatory authority over a party hereto or any auditor of a party hereto or that is required to be disclosed as a result of a subpoena or other judicial process, or otherwise by applicable laws.
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SECTION 10 – AMENDMENT; TERMINATION; ASSIGNMENT
10.1 Amendment. This Agreement may be amended
only by written agreement between the Customer and the Custodian.
10.2 Termination. Either party may terminate
this Agreement by giving to the other party a notice in writing specifying the date of such termination, which shall be not less than ninety (90) days after the date of such notice. Upon termination hereof, the Customer shall pay to the Custodian
such compensation as may be due to the Custodian, and shall likewise reimburse the Custodian for other amounts payable or reimbursable to the Custodian hereunder. The Custodian shall follow such reasonable Instructions concerning the transfer of
custody of records, Securities and other items as the Customer shall give; provided that (a) the Custodian shall have no liability for shipping and insurance costs associated therewith and (b) full payment shall have been made to the Custodian of
its compensation, costs, expenses and other amounts to which it is entitled hereunder. If any Securities or cash remain in any Account after termination, the Custodian may deliver to the Customer such Securities and cash. Provisions authorizing
the disclosure of information shall survive termination of this Agreement. Except as otherwise provided herein, all obligations of the parties to each other hereunder shall cease upon termination of this Agreement.
10.3 Successors and Assigns. Neither the
Customer nor the Custodian may assign this Agreement without the prior written consent of the other party, except that the Custodian may assign this Agreement to any BNY Mellon Affiliate without the need for such consent. Any entity that shall by
merger, consolidation, purchase or otherwise succeed to substantially all the institutional custody business of the Custodian shall, upon such succession and without any appointment or other action by the Customer, be and become successor custodian
hereunder. The Custodian agrees to provide notice of such successor custodian to the Customer. This Agreement shall be binding upon, and inure to the benefit of, the Customer and the Custodian and their respective successors and permitted
assigns.
SECTION 11 –
ADDITIONAL PROVISIONS
11.1 Non-Custody Assets. As an accommodation
to the Customer, the Custodian may provide consolidated recordkeeping services pursuant to which the Custodian reflects on statements assets not held by, or under the control of, the Custodian (“Non-Custody Assets”). Non-Custody Assets shall be
designated on the Custodian’s books as “shares not held” or by other similar characterization. The Customer acknowledges and agrees that it shall have no security entitlement against the Custodian with respect to Non-Custody Assets, that the
Custodian shall rely, without independent verification, on information provided by the Customer, its designee or the entity having custody regarding Non-Custody Assets (including but not limited to positions and market valuations), and that the
Custodian shall have no responsibility whatsoever with respect to Non-Custody Assets or the accuracy of any information maintained on the Custodian’s books or set forth on account statements concerning Non-Custody Assets.
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11.2 Appropriate Action. The Custodian is
hereby authorized and empowered, in its sole discretion, to take any action with respect to an Account that it deems necessary or appropriate in carrying out the purposes of this Agreement.
11.3 Governing Law. This Agreement shall be
construed in accordance with and governed by the substantive laws of the state of New York without regard to its conflicts of law provisions. The parties consent to the jurisdiction of a state or federal court situated in New York City, New York
in connection with any dispute hereunder. The Customer irrevocably waives any objection it may now or hereafter have to venue in such court and any claim that a proceeding brought in such court has been brought in an inconvenient forum. The
parties hereby expressly waive, to the full extent permitted by applicable law, any right to trial by jury with respect to any judicial proceeding arising from or related to this Agreement. The parties agree that the establishment and maintenance
of the Accounts, and all interests, duties and obligations with respect thereto, shall be governed by the laws of the state of New York.
11.4 Representations. Each party represents
and warrants to the other party that it has full authority to enter into this Agreement upon the terms and conditions hereof and that the individual executing this Agreement on its behalf has the requisite authority to bind such party to this
Agreement, and that the Agreement constitutes a binding obligation of such party enforceable in accordance with its terms.
11.5 USA PATRIOT Act. The Customer hereby
acknowledges that the Custodian is subject to federal laws, including the Customer Identification Program (“CIP”) requirements under the USA PATRIOT Act and its implementing regulations, pursuant to which the Custodian must obtain, verify and
record information that allows the Custodian to identify the Customer. Accordingly, prior to opening an Account hereunder, the Custodian will ask the Customer to provide certain information including, but not limited to, the Customer’s name,
physical address, tax identification number and other information that will help the Custodian to identify and verify the Customer’s identity, such as organizational documents, certificate of good standing, license to do business or other pertinent
identifying information. The Customer agrees that the Custodian cannot open an Account hereunder unless and until the Custodian verifies the Customer’s identity in accordance with the Custodian’s CIP.
11.6 Non-Fiduciary Status. The Customer
hereby acknowledges and agrees that the Custodian is not a fiduciary by virtue of accepting and carrying out its obligations under this Agreement and has not accepted any fiduciary duties, responsibilities or liabilities with respect to its
services hereunder.
11.7 Notices. Notices shall be in writing and
shall be addressed to the Custodian or the Customer at the address set forth on the signature page or such other address as either party may designate in writing to the other party. All notices shall be effective upon receipt.
11.8 Entire Agreement. This Agreement and any
related fee agreement constitute the entire agreement with respect to the matters dealt with herein, and supersede all previous agreements, whether oral or written, and documents with respect to such matters.
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11.9 Necessary Parties. All of the
understandings, agreements, representations and warranties contained herein are solely for the benefit of the Customer and the Custodian, and there are no other parties who are intended to be benefited by this Agreement.
11.10 Execution in Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and said counterparts when taken together shall constitute but one and the same instrument and may be sufficiently evidenced by one set of
counterparts.
11.11 Sanctions. (a) Throughout the term of this Agreement, the Customer: (i) shall maintain, and comply with, an economic sanctions compliance program which includes measures to accomplish effective and timely scanning of all
relevant data with respect to its clients and with respect to incoming or outgoing assets or transactions; (ii) shall ensure that, to its knowledge after due inquiry, neither the Fund nor any of its affiliates, directors, officers, employees or
clients (to the extent such clients are covered by this Agreement) is an individual or entity that is, or is owned or controlled by an individual or entity that is: (A) the target of Sanctions, or (B) located, organized or resident in a country
or territory that is, or whose government is, the target of Sanctions; and (iii) shall not, directly or indirectly, knowingly use the Accounts in any manner that would result in a violation of Sanctions.
(b) Customer will promptly provide to Custodian such information as Custodian reasonably requests in connection with the matters referenced in
this Section 11.11, including information regarding the Accounts, the assets held or to be held in such Accounts, the source thereof, and the identity of any individual or entity having or claiming an interest therein. Custodian may decline to
act or provide services in respect of any Account, and take such other actions as it, in its reasonable discretion, deems necessary or advisable, in connection with the matters referenced in this Section 11.11. If Custodian declines to act or
provide services as provided in the preceding sentence, except as otherwise prohibited by applicable law or official request, Custodian will inform Customer as soon as reasonably practicable.
11.13 Captions. The captions of this
Agreement are included for convenience of reference only and in no way define or delimit any of the provisions hereof or otherwise affect their construction or effect.
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IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the latest date set forth below.
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Authorized Signer of:
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Authorized Officer of:
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THE BANK OF NEW YORK MELLON
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By:
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By:
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Name:
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Name:
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Title:
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Title:
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Date:
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Date:
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| Address for Notice: | Address for Notice: | ||||
| The Bank of New York Mellon | |||||
| c/o BNY Mellon Asset Servicing | |||||
| Attention: _____________________ | Attention: ____________________ | ||||
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