Amendment to the Custody Agreement
EX-99.(g)(2)
Execution Copy
Amendment to the Custody Agreement
This Amendment (the “Amendment”) dated April 22, 2015, and effective as of 2015, to the Custody Agreement (the “Agreement”) dated April 5, 2011 by and between Xxxxxxx Xxxxx Trust (“GST”) and Xxxxxxx Sachs Variable Insurance Trust (each, the “Trust” and collectively, the “Existing Trusts”) on behalf of each series of the Trust listed on Schedule I to the Agreement, as updated from time to time, and Xxxxxxx Xxxxx ETF Trust (“GSETF”), separately and not jointly, and The Bank of New York Mellon (“BNY Mellon”).
WHEREAS, the Existing Trusts and BNY Mellon are parties to the Custody Agreement;
WHEREAS, the parties desire to amend the Agreement as set forth below;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
| 1. | Amendment. |
| (a) | Additional Trust |
GSETF has been established as a new open-end management investment company. In accordance with the terms of the Agreement, the Existing Trusts hereby request that GSETF be added to the Agreement as a “Trust”. GSETF shall be bound by all terms and conditions and provisions of the Agreement including, without limitation, the representations and warranties set forth in the Agreement. All references in the Agreement to a “Trust” shall be deemed to apply to GSETF. Schedule I to the Agreement shall be revised and replaced in its entirety with Schedule I attached hereto.
| (b) | Article II, Section 3(f) is hereby amended and restated as follows: |
Custodian will submit to the Fund on an annual basis a copy of its report prepared in compliance with the requirements of Statement on Standards for Attestation Engagements (SSAE) No. 16 issued by the American Institute of Certified Public Accountants, as it may be amended from time to time, or such other similar report or attestation used by professional custodians relating to their internal controls. Custodian will make information on Depositories received as part of the Depository Information Gathering Project (“DIGP”) available to GSETF. Custodian further agrees to make available to the Trust Custodian’s annual SSAE 16 Report of its independent auditors or any successor or replacement report covering the same subject matter.
| (c) | Article III, Section 4(a) is hereby amended and restated as follows: |
Custodian shall notify the Fund of rights, notices, or discretionary actions with respect to Securities held hereunder, and of the date or dates by when such rights must be exercised or such action must be taken, provided that Custodian has actually received, from the issuer or the relevant Depository (with respect to Securities issued in the United States) or from the relevant Subcustodian, Foreign Depository, or a nationally or internationally recognized bond or corporate action service to which Custodian subscribes (each, “Notice Provider”), timely notice of such rights or discretionary corporate action or of the date or dates such rights must be exercised or such action must be taken. Absent actual receipt of such notice,
Custodian shall have no liability for failing to so notify the Fund. Custodian shall use commercially reasonable care in forwarding such notice to the relevant Fund. Custodian shall be reasonable in its selection of a Notice Provider other than a Foreign Depository. The Custodian shall use reasonable efforts to identify and file claims for the Fund(s) involving any class action litigation or corporate action that impacts any security the Fund(s) may have held during the class period. The Trust agrees that the Custodian may file such claims on its behalf and understands that it may be waiving and/or releasing certain rights to make claims or otherwise pursue class action defendants who settle their claims.
| 2. | Miscellaneous. |
| (a) | Terms used herein and not hereby defined shall have the meaning attributed to them in the Agreement. |
| (b) | Except as expressly amended hereby, all provisions of the Agreement shall remain in full force and effect. |
| (c) | 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. |
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their officers designated below as of the date first written above.
| BANK OF NEW YORK MELLON | ||
| By: | /s/ Xxxxxxx Xxxx | |
| Name: | Xxxxxxx Xxxx | |
| Title: | Managing Director | |
| XXXXXXX XXXXX TRUST | ||
| By: | /s/ Xxxxx X. XxXxxx | |
| Name: Xxxxx X. XxXxxx | ||
| Title: Principal Financial Officer and Treasurer | ||
| XXXXXXX SACHS VARIABLE INSURANCE TRUST | ||
| By: | /s/ Xxxxx X. XxXxxx | |
| Name: Xxxxx X. XxXxxx | ||
| Title: Principal Financial Officer and Treasurer | ||
| XXXXXXX XXXXX ETF TRUST | ||
| By: | /s/ Xxxxx X. XxXxxx | |
| Name: Xxxxx X. XxXxxx | ||
| Title: Principal Financial Officer and Treasurer | ||
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SCHEDULE I
DATED AS OF [ ], 2015
Xxxxxxx Sachs Financial Square Tax-Exempt New York Fund
Xxxxxxx Xxxxx Financial Square Treasury Obligations Fund
Xxxxxxx Sachs Financial Square Prime Obligations Fund
Xxxxxxx Xxxxx Financial Square Government Fund
Xxxxxxx Sachs Financial Square Money Market Fund
Xxxxxxx Xxxxx Financial Square Tax-Fee Money Market Fund
Xxxxxxx Sachs Financial Square Federal Fund
Xxxxxxx Xxxxx Financial Square Treasury Instruments Fund
Xxxxxxx Sachs Financial Square Tax-Exempt California Fund
Xxxxxxx Xxxxx Variable Insurance Trust – Xxxxxxx Sachs Money Market Fund
Xxxxxxx Xxxxx ActiveBeta® Emerging Markets Equity ETF
Xxxxxxx Sachs ActiveBeta® Europe Equity ETF
Xxxxxxx Xxxxx ActiveBeta® International Equity ETF
Xxxxxxx Sachs ActiveBeta® Japan Equity ETF
Xxxxxxx Xxxxx ActiveBeta® U.S. Large Cap Equity ETF
Xxxxxxx Sachs ActiveBeta® U.S. Small Cap Equity ETF
Xxxxxxx Xxxxx Equity Long Short Hedge Tracker ETF
Xxxxxxx Sachs Event Driven Hedge Tracker ETF
Xxxxxxx Xxxxx Macro Hedge Tracker ETF
Xxxxxxx Sachs Multi-Strategy Hedge Tracker ETF
Xxxxxxx Xxxxx Relative Value Hedge Tracker ETF
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