AMENDMENT NO. 5 TO MUTUAL FUND CUSTODY AND SERVICES AGREEMENT
Exhibit (d)(11)
Execution Version
AMENDMENT NO. 5 TO MUTUAL FUND CUSTODY AND SERVICES AGREEMENT
This Amendment (“Amendment”) is made as of December 31, 2021 (“Effective Date”), by and between each investment company listed on Appendix D attached hereto (referred to herein, each separately, as the “Fund”) and The Bank of New York Mellon (referred to herein as the “Custodian”).
BACKGROUND:
| A. | The Fund and the Custodian are parties to a Mutual Fund Custody and Services Agreement dated as of July 20, 2007 (the “Agreement”), relating to the Custodian’s provision of custody services described in the Agreement to the Fund. This Amendment is an amendment to the Agreement. |
| B. | The parties desire to amend the Agreement as set forth herein. |
TERMS:
The parties hereby agree that:
| 1. | A new Article I Section 6.h of the Agreement is hereby added as follows: | |
| h. Third Party Data. In performing its services under this Agreement, the Custodian is entitled to rely without inquiry on (1) data provided by the Fund, (2) data provided by market utilities and (3) data provided by other providers of data where such data is required by the Custodian in order for the Custodian to perform its services under this Agreement. The Custodian is not responsible for losses incurred by the Fund in relation to any such data being inaccurate or incomplete. For clarity, if data is provided to the Custodian by an affiliate of the Custodian pursuant to an agreement relating to the Fund to which such affiliate is a party, the foregoing sentence is not intended to affect any liability such affiliate may have pursuant to such agreement. | ||
| 2. | Article IV Section 5.b of the Agreement is hereby deleted in its entirety and replaced with the following: b. The Custodian shall indemnify and hold the Fund harmless from all liabilities and costs and expenses, including reasonable counsel fees and expenses, resulting from the negligence or willful misconduct of the Custodian, any agent or subcustodian appointed by the Custodian or any of its or their directors, officers, agents, nominees or employees, in the performance of any functions hereunder, or any other failure to comply with the standard of care required by this Agreement. This provision shall survive the termination of this Agreement. | |
| 3. | The first sentence of Article IV Section 7.a of the Agreement is hereby deleted in its entirety and replaced with the following: The term of this Agreement shall continue until December 31, 2025 (the “Initial Term”). |
| 4. | The following is added to Article IV Section 7.h of the Agreement: For the avoidance of doubt, the Custodian shall be permitted to retain all or any portion of the records and data and retain any digital backup copies created through automated system processes, in accordance with the confidentiality obligations specified in this Agreement for as long as the information is retained, to the extent required by any applicable law, regulation, supervisory or regulatory body or the Custodian’s internal compliance requirements. | |
| 5. | Article IV Section 9.e of the Agreement is hereby deleted in its entirety and replaced with the following: e. This Agreement shall extend to and shall be binding upon the parties hereto, and their respective successors and assigns; provided, however, that this Agreement shall not be assignable by the Fund without the written consent of the Custodian, or by the Custodian without the written consent of the Fund, authorized or approved by a vote of the Board, provided, however, that a Fund merger or reorganization where the fund surviving from such merger or reorganization assumes the duties and obligations of such Fund under this Agreement shall not require the Custodian’s consent; provided further, however, that the Custodian may not assign or subcontract the rights or delegate the duties or outsource or offshore any services pursuant to this Agreement (“Services”), without the written consent of the Fund, and any other attempted assignment without written consent shall be null and void. Notwithstanding the foregoing, (1) no consent shall be required for the Custodian to assign this Agreement or to assign or subcontract the rights or delegate the duties or outsource or offshore the Services contemplated hereunder to an affiliate of the Custodian, provided the Custodian provides thirty (30) days advance written notice to the other parties hereto, (2) no consent shall be required for the Custodian to assign this Agreement to any successor to the business of the Custodian to which this Agreement relates, provided the Custodian provides thirty (30) days advance written notice (or such shorter notice reasonably necessitated by the circumstances) to the other parties hereto and provided further that such assignee satisfies the requirements for serving as a custodian for an investment company registered under the Investment Company Act of 1940, as amended, and (3) no consent shall be required for the Custodian to utilize a subcustodian in connection with the provision of the Services. | |
| 6. | A new final sentence of Article IV Section 9.i of the Agreement is hereby added as follows: Each of the parties to this Agreement expressly and irrevocably waives, to the fullest extent permitted by applicable law, any right to a jury trial with respect to all suits and proceedings arising out of or relating to this Agreement. | |
| 7. | A new Article IV Section 9.m of the Agreement is hereby added as follows: | |
| m. In connection with this Agreement, the Fund may enter into foreign exchange transactions (including foreign exchange hedging transactions) with the Custodian or an affiliate of the Custodian acting as a principal or otherwise through customary channels. With respect to such foreign |
exchange transactions, the Custodian or such affiliate of the Custodian is acting as a principal counterparty on its own behalf and is not acting as a fiduciary or agent for, or on behalf of, the Fund, a Series, any investment manager or any account.
| 8. | A new Article IV Section 9.n of the Agreement is hereby added as follows: |
n. For clarity, the Custodian may (1) use information regarding the Fund in connection with certain functions performed on a centralized basis by the Custodian, its affiliates and joint ventures and their service providers (including audit, accounting, risk, legal, compliance, sales, administration, product communication, relationship management, compilation and analysis of customer-related data and storage); (2) disclose such information to its affiliates and joint ventures and to its and their service providers who are subject to reasonable confidentiality obligations in accordance with applicable laws and regulations; (3) securely store in a manner consistent with applicable laws and regulations the names and business contact information of the Fund’s employees and representatives relating to this Agreement on the systems or in the records of the Custodian’s affiliates and joint ventures and its and their service providers; and (4) aggregate information regarding the Fund on an anonymized basis with other similar client data for the Custodian’s and its affiliates’ reporting, research, product development and distribution, and marketing purposes (for clarity, the Fund will not be charged by the Custodian for such aggregation or use by the Custodian or the Custodian’s affiliates, unless agreed to in writing by the Fund). For clarity, the foregoing provisions of this Section 9(n) do not relate to nonpublic personal information or authorize the Custodian to utilize nonpublic personal information in a way that would violate any applicable federal and state privacy laws and regulations.
| 9. | A new Article IV Section 9.o of the Agreement is hereby added as follows: |
o. At the Fund’s request and subject to the Custodian’s approval, as an accommodation to the Fund, the Custodian will provide consolidated recordkeeping services reflecting on statements provided to the Fund assets not held by the Custodian (“Non-Custody Assets”). Non-Custody Assets will be designated on the Custodian’s books as “assets not held in custody” or by other similar designation and are not considered assets maintained by the Custodian under this Agreement. The Fund acknowledges and agrees that, notwithstanding anything contained elsewhere in this Agreement, (1) the Fund will have no security entitlement against the Custodian with respect to Non-Custody Assets; (2) the Custodian will rely without inquiry on information provided by the Fund or its designee regarding Non-Custody Assets (including positions) and (3) the Custodian will have no responsibility 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.
| 10. | Section 4 of Amendment No. 2 to the Agreement (dated July 1, 2017) is hereby deleted in its entirety and replaced with the following: BNYM shall |
perform penetration testing activities on its systems related to the Services provided hereunder, at least annually, as part of its information security policies and procedures. The Fund agrees and understands that BNYM does not guarantee that the penetration testing activities will detect all security weaknesses, potential security problems or potential breaches. BNYM will provide the Fund with a certification confirming the completion of the testing promptly after it is complete. The Custodian will at its own cost remediate identified security vulnerabilities in accordance with its information security program.
| 11. | Section 7 of Amendment No. 2 to the Agreement (dated July 1, 2017) is hereby deleted in its entirety and replaced with the following: Annually, upon the Fund’s request, BNYM will confirm in writing completion of its ISO 27001 certification, and will provide a SOC 1 Type II Report covering BNYM’s internal control over financial reporting applicable to the processing of Fund information. | |
| 12. | Section 9 of Amendment No. 2 to the Agreement (dated July 1, 2017) is hereby deleted in its entirety and replaced with the following: In performing the Services, BNYM shall comply with all laws, rules and regulations in connection with this Agreement to which BNYM is subject and with such standards as may be imposed on BNYM by law and by the requirements of all regulatory authorities. | |
| 13. | For clarity, as of the Effective Date of this Amendment the Agreement shall be deemed to be in its “Initial Term” (as defined in Section 3 above). | |
| 14. | Appendix D of the Agreement is hereby deleted in its entirety and replaced with Appendix D attached hereto. | |
| 15. | Appendix E of the Agreement is hereby deleted in its entirety. The first sentence of Article IV Section 1.a of the Agreement is hereby deleted in its entirety and replaced with the following: The Fund will compensate the Custodian for its services rendered under this Agreement in accordance with the fees set forth in a fee schedule agreed in writing between the Fund and the Custodian (the “Fees”). | |
| 16. | Miscellaneous. | |
| (a) | As hereby amended and supplemented, the Agreement, as well as capitalized terms not defined in this Amendment, shall remain in full force and effect. In the event of a conflict between the terms of this Amendment and the terms of the Agreement, the terms of this Amendment shall control. | |
| (b) | The Agreement, as amended hereby, constitutes the complete understanding and agreement of the parties with respect to the subject matter thereof and supersedes all prior communications with respect thereto. |
| (c) | To the extent required by applicable law, the terms of this Amendment and the fees and expenses associated with this Amendment have been disclosed to and approved by the governing body of the Fund. | |
| (d) | This Amendment shall be governed by the laws of the Commonwealth of Pennsylvania, without regard to its principles of conflicts of laws. | |
| (e) | The parties expressly agree that this Amendment may be executed in one or more counterparts and expressly agree that such execution may occur by manual signature on a physically delivered copy of this Amendment, by a manual signature on a copy of this Amendment transmitted by facsimile transmission, by a manual signature on a copy of this Amendment transmitted as an imaged document attached to an email, or by “Electronic Signature”, which is hereby defined to mean inserting an image, representation or symbol of a signature into an electronic copy of this Amendment by electronic, digital or other technological methods. Each counterpart executed in accordance with the foregoing shall be deemed an original, with all such counterparts together constituting one and the same instrument. The exchange of executed counterparts of this Amendment or of executed signature pages to counterparts of this Amendment, in either case by facsimile transmission or as an imaged document attached to an email transmission, shall constitute effective execution and delivery of this Amendment and may be used for all purposes in lieu of a manually executed and physically delivered copy of this Amendment. |
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be executed as of the Effective Date by its duly authorized representative indicated below. An authorized representative, if executing this Amendment by Electronic Signature, affirms authorization to execute this Amendment by Electronic Signature and that the Electronic Signature represents an intent to enter into this Amendment and an agreement with its terms.
| The Bank of New York Mellon | ||
| By: | /s/ Xxxxx Xxxxx | |
| Name: | Xxxxxxxxxxx Xxxxx | |
| Title: | Managing Director | |
| DELAWARE GROUP | |
| ADVISER
FUNDS, on behalf of its Portfolios identified on Appendix D | |
DELAWARE GROUP CASH RESERVE, on behalf of its | |
DELAWARE GROUP EQUITY FUNDS I, on behalf of its | |
DELAWARE GROUP EQUITY FUNDS II, on behalf of its | |
DELAWARE GROUP EQUITY FUNDS IV, on behalf of its | |
DELAWARE GROUP EQUITY FUNDS V, on behalf of its |
| DELAWARE GROUP | |
| FOUNDATION FUNDS, on behalf of its Portfolios identified on Appendix D | |
DELAWARE GROUP INCOME FUNDS, on behalf of its | |
DELAWARE GROUP STATE on behalf of its Portfolios | |
DELAWARE GROUP TAX- FREE FUND, on behalf of its | |
DELAWARE GROUP FUNDS, on behalf of its | |
VOYAGEUR INSURED FUNDS, on behalf of its | |
VOYAGEUR INTERMEDIATE TAX FREE FUNDS, on behalf | |
VOYAGEUR MUTUAL FUNDS, on behalf of its | |
VOYAGEUR MUTUAL FUNDS II, on behalf of its |
| DELAWARE GROUP GOVERNMENT FUND, on behalf of its Portfolios identified on Appendix D | |
| DELAWARE GROUP LIMITED-TERM GOVERNMENT FUNDS, on behalf of its Portfolios identified on Appendix D | |
| DELAWARE POOLED TRUST, on behalf of its Portfolios identified on Appendix D | |
| VOYAGEUR MUTUAL FUNDS III, on behalf of its Portfolios identified on Appendix D | |
| VOYAGEUR TAX FREE FUNDS, on behalf of its Portfolios identified on appendix D | |
| DELAWARE VIP TRUST, on behalf of its Portfolios identified on Appendix D | |
| IVY FUNDS, on behalf of its Portfolios identified on Appendix D | |
| IVY
VARIABLE INSURANCE PORTFOLIOS, on behalf of its Portfolios identified on Appendix D | |
| INVESTED PORTFOLIOS, on behalf of its Portfolios identified on Appendix D |
| DELAWARE INVESTMENTS COLORADO MUNICIPAL INCOME FUND, INC. | ||
| DELAWARE INVESTMENTS NATIONAL MUNICIPAL INCOME FUND | ||
| DELAWARE INVESTMENTS MINNESOTA MUNICIPAL INCOME FUND II, INC. | ||
| DELAWARE INVESTMENTS DIVIDEND AND INCOME FUND, INC. | ||
| DELAWARE IVY HIGH INCOME OPPORTUNITIES FUND | ||
| DELAWARE ENHANCED GLOBAL DIVIDEND AND INCOME FUND | ||
| By: | ||
| By: | /s/ Xxxxxx X. Xxxxxxx | |
| Name: | Xxxxxx X Xxxxxxx | |
| Title: | Senior Vice President | |
Appendix D
The following Registrants and Series are covered by, and made parties to, the Agreement as of the date first written above.
| Registrants and Series |
| Delaware Group® Adviser Funds |
| Delaware Diversified Income Fund |
| Delaware Group® Cash Reserve |
| Delaware Investments Ultrashort Fund |
| Delaware Group® Equity Funds I |
| Delaware Mid Cap Value Fund |
| Delaware Group® Equity Funds II |
| Delaware Value® Fund |
| Delaware Group® Equity Funds IV |
| Delaware Healthcare Fund |
| Delaware Small Cap Growth Fund |
| Delaware Xxxx Cap Growth Fund |
| Delaware Covered Call Strategy Fund |
| Delaware Equity Income Fund |
| Delaware Global Equity Fund |
| Delaware Growth and Income Fund |
| Delaware Growth Equity Fund |
| Delaware Hedged U.S. Equity Opportunities Fund |
| Delaware Opportunity Fund |
| Delaware Premium Income Fund |
| Delaware Total Return Fund |
| Delaware Group® Equity Funds V |
| Delaware Small Cap Core Fund |
| Delaware Small Cap Value Fund |
| Delaware Wealth Builder Fund |
| Delaware Group® Foundation Funds |
| Delaware Strategic Allocation Fund |
| Delaware Group® Global & International Funds |
| Delaware Emerging Markets Fund |
| Delaware International Small Cap Fund |
| Delaware International Value Equity Fund |
| Delaware Group® Government Fund |
| Delaware Emerging Markets Debt Corporate Fund |
| Delaware Strategic Income Fund |
| Registrants and Series |
| Delaware Group® Income Funds |
| Delaware Corporate Bond Fund |
| Delaware Extended Duration Bond Fund |
| Delaware Floating Rate Fund |
| Delaware High-Yield Opportunities Fund |
| Delaware Group® Limited-Term Government Funds |
| Delaware Limited-Term Diversified Income Fund |
| Delaware Tax-Free New Jersey Fund |
| Delaware Tax-Free Oregon Fund |
| Delaware Group® State Tax-Free Income Trust |
| Delaware Tax-Free Pennsylvania Fund |
| Delaware Group® Tax-Free Fund |
| Delaware Tax-Free USA Fund |
| Delaware Tax-Free USA Intermediate Fund |
| Delaware Pooled® Trust |
| Macquarie Emerging Markets Portfolio |
| Macquarie Emerging Markets Portfolio II |
| Macquarie Labor Select International Equity Portfolio |
| Delaware Global Listed Real Assets Fund (formerly, Delaware REIT Fund) |
| Delaware VIP® Trust |
| Delaware VIP® Emerging Markets Series |
| Delaware VIP® Small Cap Value Series |
| Delaware VIP® Equity Income Series |
| Delaware VIP® Fund for Income Series |
| Delaware VIP® Growth and Income Series |
| Delaware VIP® Growth Equity Series |
| Delaware VIP® International Series |
| Delaware VIP® Investment Grade Series |
| Delaware VIP® Limited Duration Bond Series |
| Delaware VIP® Opportunity Series |
| Delaware VIP® Special Situations Series |
| Delaware VIP® Total Return Series |
| InvestEd Portfolios |
| InvestEd 90 Portfolio |
| InvestEd 80 Portfolio |
| InvestEd 70 Portfolio |
| InvestEd 60 Portfolio |
| InvestEd 50 Portfolio |
| InvestEd 40 Portfolio |
| InvestEd 30 Portfolio |
| InvestEd 20 Portfolio |
| InvestEd 10 Portfolio |
| InvestEd 0 Portfolio |
| Registrants and Series |
| Ivy Funds |
| Delaware Ivy Accumulative Fund |
| Delaware Ivy Multi-Asset Income Fund |
| Delaware Ivy Strategic Income Fund |
| Delaware Ivy Asset Strategy Fund |
| Delaware Ivy Balanced Fund |
| Delaware Ivy California Municipal High Income Fund |
| Delaware Xxx Xxxx Management Fund |
| Delaware Ivy Core Equity Fund |
| Delaware Ivy Corporate Bond Fund |
| Delaware Ivy Crossover Credit Fund |
| Delaware Ivy Systematic Emerging Markets Equity Fund |
| Delaware Ivy Energy Fund |
| Delaware Ivy Global Bond Fund |
| Delaware Ivy Global Equity Income Fund |
| Delaware Ivy Global Growth Fund |
| Delaware Ivy Government Money Market Fund |
| Delaware Ivy Government Securities Fund |
| Delaware Ivy High Income Fund |
| Delaware Ivy International Core Equity Fund |
| Delaware Ivy International Small Cap Fund |
| Delaware Ivy Large Cap Growth Fund |
| Delaware Xxx XxXxxxx Global Real Estate Fund |
| Delaware Ivy Limited-Term Bond Fund |
| Delaware Ivy Managed International Opportunities Fund |
| Delaware Ivy Mid Cap Growth Fund |
| Delaware Ivy Mid Cap Income Opportunities Fund |
| Delaware Ivy Municipal Bond Fund |
| Delaware Ivy Municipal High Income Fund |
| Delaware Ivy Natural Resources Fund |
| Delaware Ivy Emerging Markets Local Currency Debt Fund |
| Delaware Ivy Total Return Bond Fund |
| Delaware Ivy High Yield Fund |
| Delaware Ivy ProShares Interest Rate Hedged High Yield Index Fund |
| Delaware Ivy ProShares MSCI ACWI Index Fund |
| Delaware Ivy ProShares Xxxxxxx 2000 Dividend Growers Index Fund |
| Delaware Ivy ProShares S&P 500 Bond Index Fund |
| Delaware Ivy S&P 500 Dividend Aristocrats Index Fund |
| Delaware Ivy International Value Fund |
| Registrants and Series |
| Ivy Funds (continued) |
| Delaware Ivy Science and Technology Fund |
| Delaware Ivy Securian Core Bond Fund |
| Delaware Ivy Securian Real Estate Securities Fund |
| Delaware Xxx Xxxx Cap Core Fund |
| Delaware Ivy Small Cap Growth Fund |
| Delaware Ivy Value Fund |
| Delaware Xxx Xxxxxxxx Global Allocation Fund |
| Ivy Variable Insurance Portfolios |
| Delaware Ivy VIP Asset Strategy |
| Delaware Ivy VIP Balanced |
| Delaware Ivy VIP Core Equity |
| Delaware Ivy VIP Corporate Bond |
| Delaware Ivy VIP Energy |
| Delaware Ivy VIP Global Bond |
| Delaware Ivy VIP Global Equity Income |
| Delaware Ivy VIP Global Growth |
| Delaware Ivy VIP Government Money Market |
| Delaware Ivy VIP Growth |
| Delaware Ivy VIP High Income |
| Delaware Ivy VIP International Core Equity |
| Delaware Ivy VIP Limited-Term Bond |
| Delaware Ivy VIP Mid Cap Growth |
| Delaware Ivy VIP Natural Resources |
| Delaware Ivy VIP Pathfinder Aggressive |
| Delaware Ivy VIP Pathfinder Conservative |
| Delaware Ivy VIP Pathfinder Moderate |
| Delaware Ivy VIP Pathfinder Moderate - Managed Volatility |
| Delaware Ivy VIP Pathfinder Moderately Aggressive |
| Delaware Ivy VIP Pathfinder Moderately Aggressive - Managed Volatility |
| Delaware Ivy VIP Pathfinder Moderately Conservative |
| Delaware Ivy VIP Pathfinder Moderately Conservative - Managed Volatility |
| Delaware Ivy VIP Science and Technology |
| Delaware Ivy VIP Securian Real Estate Securities |
| Delaware Ivy VIP Xxxx Cap Core |
| Delaware Ivy VIP Small Cap Growth |
| Delaware Ivy VIP Value |
| Voyageur Insured Funds |
| Delaware Tax-Free Arizona Fund |
| Voyageur Intermediate Tax Free Funds |
| Delaware Tax-Free Minnesota Intermediate Fund |
| Voyageur Mutual Funds |
| Delaware Minnesota High-Yield Municipal Bond Fund |
| Delaware National High-Yield Municipal Bond Fund |
| Delaware Tax-Free California Fund |
| Delaware Tax-Free Idaho Fund |
| Delaware Tax-Free New York Fund |
| Voyageur Mutual Funds II |
| Delaware Tax-Free Colorado Fund |
| Voyageur Mutual Funds III |
| Delaware Select Growth Fund |
| Voyageur Tax Free Funds |
| Delaware Tax-Free Minnesota Fund |
| Delaware Enhanced Global Dividend and Income Fund |
| Delaware Investments Dividend and Income Fund, Inc. |
| Delaware Investments Colorado Municipal Income Fund, Inc. |
| Delaware Investments Minnesota Municipal Income Fund II, Inc. |
| Delaware Investments National Municipal Income Fund |
| Delaware Ivy High Income Opportunities Fund |
