CUSTODIAN AGREEMENT
THIS AGREEMENT, dated as of May 15, 2020, between AIM ETF PRODUCTS TRUST (the “Fund”),
a management investment company organized under the laws of the State of Delaware as a Delaware statutory trust and registered with the U.S. Securities and Exchange Commission (the “SEC”) under the Investment
Company Act of 1940 (the “1940 Act”), on behalf of each series listed on Annex A to this Agreement, as the same may be amended from time to time, separately and not jointly (each, a “Portfolio” and collectively, the “Portfolios”), and XXXXX BROTHERS XXXXXXXX & CO., a limited partnership formed under the laws of the State of New
York (“BBH&Co.” or the “Custodian”). All references herein to “Portfolio” are to each of the Portfolios listed on the attached Annex A individually, as if this
Agreement were between such individual Portfolio and the Custodian. Without limiting the generality of the foregoing, no Portfolio shall be liable for any obligations of any other Portfolio or series of the Fund, as applicable.
W I T N E S S E T H:
WHEREAS, the Fund wishes to employ BBH&Co. to act as custodian for the Portfolios and to provide related services, all as provided herein, and BBH&Co.
is willing to accept such employment, subject to the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the Fund and BBH&Co. hereby agree, as follows:
1. Appointment of Custodian. The Fund hereby
appoints BBH&Co. as each Portfolio's Custodian, and BBH&Co. hereby accepts such appointment. All Investments (as defined below) of a Portfolio delivered to the Custodian or its agents or Subcustodians shall be dealt with as provided in this
Agreement. The duties of the Custodian with respect to each Portfolio’s Investments shall be only as set forth expressly in this Agreement, including any attachments or schedules thereto, which duties are generally comprised of safekeeping assets
and various administrative duties that will be performed in accordance with Instructions (as defined below) and as reasonably required to effect Instructions.
2. Representations, Warranties and Covenants of the
Fund. The Fund hereby represents, warrants and covenants on behalf of each Portfolio, separately and not jointly, each of the following:
2.1 (i) This Agreement has been, and at the time of delivery of each Instruction, such
Instruction will have been, duly authorized, executed and delivered by the Fund. Neither this Agreement nor any Instruction delivered hereunder violates any Applicable Law or conflicts with or constitutes a default under the applicable Portfolio's
prospectus, the Fund’s organizational documents or any agreement, judgment, order or decree to which the Fund is a party or by which a Portfolio or its Investments are bound; and (ii) it has the power and authority under its organizational documents
to perform the duties set out in this Agreement; and (iii) it is, and will continue to be during the term of this Agreement, in material compliance with all Applicable Law applicable to it in respect of its duties, obligations and services under
this Agreement.
2.2 By providing an Instruction with respect to the first acquisition of an Investment
in a jurisdiction other than the United States of America, the Fund shall be deemed to have confirmed to the Custodian that the Fund has (a) assessed and accepted all material Country, Sanctions or Sovereign Risks and accepted responsibility for
their occurrence, (b) made all determinations required to be made by the Fund under the 1940 Act, except to the extent expressly delegated to the Custodian in the Delegation Schedule, and (c) solely with respect to Country Risk, as the Fund deems
appropriate, disclosed to its shareholders all material investment risks. Nothing in this Section 2.2 shall relieve the Custodian of its responsibilities under Section 8 of this Agreement.
2.3 The Fund shall safeguard and shall solely be responsible for the safekeeping of
any testkeys, identification codes, passwords, other security devices or statements of account with which the Custodian provides it (except to the extent that any failure by the Fund to safe keep such devices or statements is caused or contributed to
by the Custodian or by the design, or intended use or manufacture of the device or statement). If the Fund uses any on-line or similar communications service made available by the Custodian, the Fund and the Custodian each shall be solely responsible
for ensuring the security of its respective access to the service and for the authorized use of the service, and shall only attempt to access the service and the Custodian’s computer systems for their authorized use. If the Custodian provides any
computer software to the Fund relating to the
services described in this Agreement, the Fund will only use the software for the purposes for which the Custodian provided the software to the Fund, and will abide by the license agreement
accompanying the software and any other security policies which the Custodian provides to the Fund in writing.
2.4 Notwithstanding anything in this Agreement to contrary effect, the Fund
specifically represents and warrants to the Custodian that it shall at all times be principally liable for the repayment of any Advance made by the Custodian under this Agreement, as provided in Sections 7.5, 7.6 and 7.7 hereof.
2.5 By providing an Instruction in respect of an Investment (which Instruction may
relate to among other things, the processing of orders and/or settlement of transactions in funds), the Fund (including for each Portfolio) hereby (i) authorizes BBH&Co. to complete such documentation as may be required or appropriate to carry
out the Instruction, and agrees to be contractually bound to the terms of such documentation; (ii) represents, warrants and covenants that it has accepted and agreed to comply with all Applicable Law, terms and conditions to which it and/or its
Investment may be bound, including without limitation, requirements imposed by the Investment prospectus or offering circular, subscription agreement, any application or other documentation relating to an Investment (e.g., compliance with suitability
requirements and eligibility restrictions and requirements that all such documentation relating to the investment has been received, read and understood by the Fund); (iii) acknowledges and agrees that BBH&Co. will not be responsible for the
accuracy of any information provided to BBH&Co. by or on behalf of the Fund, or for any underlying commitment or obligation inherent to an Investment; (iv) except as otherwise provided for in Section 2.5.1, represents, warrants and covenants that
it will not effect any sale, transfer or disposition of Investment(s) held in BBH&Co.’s name by any means other than the issuance of an Instruction by the Fund to BBH&Co.; (v) acknowledges that collective investment pools (and/or their
agent(s)) in which the Fund invests may pay to BBH&Co. certain fees (including without limitation, shareholder servicing and/or trailer fees) in respect of the Fund’s investments in such pools; (vi) agrees that BBH&Co. shall have no
obligation or responsibility whatsoever to respond to, or provide capital in connection with any capital calls, letters of intent or other requirements as set out in the prospectus or offering circular of an Investment; (vii) represents, warrants and
covenants that it will provide BBH&Co. with such information as is necessary or appropriate to enable BBH&Co.’s performance pursuant to an Instruction or under this Agreement; (viii) undertakes to inform BBH&Co. and to keep the same
updated as to any tax withholding or benefit to which an Investment may be subject; (ix) authorizes BBH&Co. to furnish the customer due diligence records maintained by BBH&Co. on the Fund and its beneficial owners to the transfer agent or
other agent of an issuer of an Investment to satisfy regulatory obligations; (x) represents and warrants that to the extent the Fund provides BBH&Co. with any personal data or personally identifiable information in connection with an Investment,
the Fund will have obtained the consent of the applicable individuals to provide such data and information to BBH&Co. and the Fund and to the use of such data and information as described in the applicable account opening, subscription and
related Fund documentation; and (xi) acknowledges that BBH&Co. shall have no obligation to fund any order placed by the Fund for which the Fund does not have sufficient cash on deposit with BBH&Co.
2.5.1 To the extent that the Fund holds Investments in an account opened in the name of
BBH&Co. as custodian for and at the direction of the Fund, and the Fund requests that BBH&Co. provide the Fund with the capability to place orders in fund shares directly with such fund companies and/or their transfer agents which shall be
settled in an account established with each such fund company or its transfer agent, the Fund hereby acknowledges that BBH&Co. is under no obligation to agree to such arrangement but if BBH&Co. so agrees, the Fund (i) acknowledges that all
relevant terms under Section 2.5 above apply thereto, (ii) authorizes BBH&Co. as custodian, to grant a limited power of attorney to the Fund or its designated agent to enable the Fund to place orders in fund shares directly with the fund
companies and/or their transfer agents, (iii) agrees to ensure that any instructions issued by the Fund or its designated agent shall also be concurrently submitted to BBH&Co., and (iv) shall adhere to any BBH&Co. procedures established with
each such fund or its transfer agent with respect thereto provided to the Fund including, but not limited to, the terms of the limited power of attorney. The Fund also acknowledges and agrees that (1) BBH&Co. is acting solely in its capacity as
custodian and is not acting as a broker or introducing broker on behalf of the Fund, (2) BBH&Co. is not receiving compensation in connection with the Fund’s own execution hereunder of trades with each such fund other than its usual and customary
custody fees and transaction charges, (3) it will provide such account opening information to each such fund and/or transfer agent as and when requested by such fund and/or transfer
agent, and (4) BBH&Co. is not responsible for (a) providing information published by the relevant distributor of each such fund including, but not limited to, the prospectus for each such
Investment in a fund or for resolving execution queries or complaints relative to any such Investment, and (b) assessing the suitability of any such Investment placed directly by the Fund.
2.6 The Fund represents and warrants that it is not resident in or organized under the laws of any country
with which transactions or dealings are prohibited under a Sanctions Regime. The Fund further warrants that it is not owned or controlled by: (i) the government of any country with which transactions or dealings by any person are prohibited under a
Sanctions Regime; (ii) a person or entity resident in or organized under the laws of any country with which transactions or dealings by any person are prohibited under a Sanctions Regime; or (iii) any person or entity on the List of Specially
Designated Nationals and Blocked Persons published by OFAC or any comparable Sanctions Regime lists.
2.6.1 The Fund represents and warrants that it conducts ongoing screening of its
holdings, relevant transactional activity, and service providers engaged by the Fund, including but not limited to Authorized Participants and distributors, against lists promulgated by a Sanctions Regime, as such lists are amended from time to time.
2.6.2 The Fund represents and warrants that it has implemented adequate risk management
and systems to ensure that it will not instruct or otherwise cause Custodian to hold any assets in custody that would violate a Sanctions Regime. The Fund further represents it will not instruct Custodian to invest in, nor engage in, or facilitate
any transaction on the Fund’s behalf that would cause Custodian to violate any Sanctions Regime, including any transaction or dealing involving: (i) any country with which transactions or dealings by any person are prohibited under a Sanctions
Regime; (ii) any person or entity subject to any Sanctions Regime; or (iii) any assets owned or controlled by a person or entity that is the target of any Sanctions Regime (collectively, “Sanctioned Property”). The Fund further represents and
warrants that it will obtain representations from the Authorized Participants and distributors of the Fund that they have implemented sanctions compliance policies that are designed to comply with all applicable Sanctions Regimes, including U.S.
sanctions. The Fund further represents and warrants that it will promptly notify the Custodian in writing if either the Fund or, to the best of the Fund’s knowledge, any of the above relevant parties becomes subject to a Sanctions Regime or if any of
the assets custodied by the Custodian subsequently becomes Sanctioned Property.
2.7 The Fund represents and warrants that it has developed and implemented an
anti-money laundering (“AML”) program that is designed to comply with all U.S. AML and terrorist financing laws and regulations (collectively, “applicable U.S. AML Laws”) to the extent applicable to it. The Fund represents and warrants that it will
confirm that the Authorized Participants and distributors of the Fund have implemented AML programs designed to comply with applicable U.S. AML Laws.
2.7.1 The Fund acknowledges that the Custodian is obligated under applicable U.S. AML
Laws to obtain, verify and record identifying information about the Custodian’s customers prior to opening an account.
2.7.2 The Fund represents and warrants that upon request, it will (i) cooperate with
the Custodian to obtain information from Authorized Participants and distributors of the Fund using commercially reasonable efforts and (ii) provide the Custodian with information in its possession, in both cases, to the extent that the Custodian
requires such information to comply with applicable U.S. AML Laws and Sanctions Regimes, including but not limited to, verification regarding the AML and Sanctions Regime controls implemented by the above referenced Authorized Participants and
distributors.
2.7.3 The Fund further represents and warrants that it will not directly or, to the
best of its knowledge, indirectly, instruct or otherwise cause Custodian to hold any assets in custody or engage in or facilitate any transaction that would cause Custodian to violate any applicable U.S. AML laws.
2.8 The Fund represents and warrants that it is not a “Plan” (which term includes (1) employee benefit plans that are subject to the United States (“US”) Employee Retirement Income
Security Act of 1974, as amended (“ERISA”), or plans, individual retirement accounts and other arrangements that are subject to Section 4975 of the US Internal Revenue Code of 1986, as amended (the “Code”), (2) plans, individual retirement accounts
and other arrangements that are subject to the prohibited transaction provisions of Section 406 of ERISA or Section 4975 of the Code, and (3) entities the underlying assets of which are considered to include “plan assets” of such plans, accounts and
arrangements), or an entity purchasing shares on behalf of, or with the “plan assets” of, a Plan, and further undertakes to inform BBH&Co. and to keep the same updated as to the status under ERISA or Section 4975 of the Code, each as amended, of
the Fund.
2.9 The Fund represents and warrants that it will promptly notify the Custodian in writing if any of the
above representations cease to be true in any material respect.
3. Representation and Warranty of BBH&Co.
BBH&Co. hereby represents and warrants (i) that this Agreement has been duly authorized, executed and delivered by BBH&Co. and does not and will not violate any Applicable Law or conflict with or constitute a default under BBH&Co.'s
limited partnership agreement or any agreement, instrument, judgment, order or decree to which BBH&Co. is a party or by which it is bound; (ii) it has the power and authority under its organizational documents to perform the duties set out in
this Agreement; and (iii) it is, and will continue to be during the term of this Agreement, in material compliance with all Applicable Law applicable to it in respect of its duties, obligations and services under this Agreement. BBH&Co.
acknowledges that, subject to the provisions of Section 9 (Responsibility of the Custodian) and its subsections and Section 16.3 (Business
Continuity Plan), it will continue to have access to facilities, equipment and personnel in performing its duties and obligations under this Agreement.
4. Instructions. Unless otherwise explicitly
indicated herein, the Custodian shall perform its duties pursuant to Instructions. As used herein, the term Instruction shall mean a directive initiated by the Fund, acting through its Board, officers or
other Authorized Person, which directive shall conform to the requirements of this Section 4.
4.1 Authorized Persons. For purposes hereof, an Authorized Person shall be a person or entity
designated by the Fund in writing to the Custodian as authorized to give Instructions to the Custodian for or on behalf of the Fund or Portfolio, as applicable, in accordance with procedures delivered to and acknowledged by the Custodian. The
Custodian may treat any Authorized Person as having the full authority of the Fund to issue Instructions hereunder unless the notice of authorization contains explicit limitations as to said authority. The Custodian shall be entitled to rely upon
the authority of designated Authorized Persons to give Instructions with respect to the Fund or a Portfolio until it receives appropriate written notice from the Fund to the contrary.
4.2 Form of Instruction. Each Instruction shall be transmitted by such secured or authenticated electro-mechanical means as the
Custodian shall make available to the Fund from time to time unless the Fund elects to transmit such Instruction in accordance with Subsections 4.2.1 through 4.2.3 of this Section.
4.2.1 Fund Designated Secured-Transmission Method. Instructions may be transmitted through a secured or tested electro-mechanical means
identified by the Fund or by an Authorized Person entitled to give Instruction and acknowledged and accepted by the Custodian, it being understood that such acknowledgment shall authorize the Custodian to accept such means of delivery but shall not
represent a judgment by the Custodian as to the reasonableness or security of the means utilized by the Authorized Person.
4.2.2 Written Instructions. Instructions may be transmitted in a writing that bears the manual signature of an Authorized Person.
4.2.3 Other Forms of Instruction. Instructions may also be transmitted by another means determined by the Fund or Authorized Persons
and acknowledged and accepted by the Custodian (subject to the same limits as to acknowledgements as are contained in Subsection 4.2.1, above) including but not limited to Instructions given orally or by SWIFT or telefax (whether tested or untested).
When an Instruction is given by means established under Subsections 4.2.1 through 4.2.3, it shall be the responsibility of the Custodian to use reasonable care to adhere to any security or other
procedures established
in writing between the Custodian and the Authorized Person with respect to such means of Instruction, but the Authorized Person shall be solely responsible for determining that the particular means
chosen is reasonable under the circumstances (unless such method is a secured or authenticated electro-mechanical product proprietary to the Custodian and offered to the Fund by the Custodian, which both parties hereby agree shall be deemed
reasonable). With respect to telefax Instructions, the parties agree and acknowledge that receipt of legible telefax Instructions cannot be assured, that the Custodian cannot verify that authorized signatures on telefax Instructions are original or
properly affixed, and that the Custodian shall not be liable for losses or expenses incurred through actions taken in reasonable reliance on inaccurately stated, illegible or unauthorized telefax Instructions. The provisions of Section 4A of the
Uniform Commercial Code shall apply to Funds Transfers performed in accordance with Instructions. The Funds Transfer Services Schedule to this Agreement and the BBH Online Terms and Conditions shall each comprise a designation of a form of a means of
delivering Instructions for purposes of this Section 4.2.
4.3 Completeness and Contents of Instructions. The Authorized Person shall be responsible for assuring the adequacy and accuracy of
Instructions. Particularly, upon any acquisition or disposition or other dealing in the Fund's Investments and upon any delivery and transfer of any Investment or moneys, the Authorized Person initiating the Instruction shall give the Custodian an
Instruction with appropriate detail, including, without limitation:
4.3.1 The transaction date and the date and location of settlement;
4.3.2 The specification of the type of transaction;
4.3.3 A description of the Investments or moneys in question, including, as appropriate, quantity, price per unit, amount of money to be received or delivered and currency information. Where an
Instruction is communicated by electronic means, or otherwise where an Instruction contains an identifying number such as a CUSIP, SEDOL or ISIN number, the Custodian shall be entitled to rely on such number as controlling notwithstanding any
inconsistency contained in the Instruction, particularly with respect to Investment description; and
4.3.4 The name of the broker or similar entity concerned with execution of the transaction.
If the Custodian is not able to process an Instruction based on a determination that the Instruction is either unclear or incomplete, the Custodian will, as soon as reasonably practicable, inform the
Fund of such determination, and the Fund shall thereupon amend or otherwise reform the Instruction. In such event, the Custodian shall have no obligation to take any action in response to the Instruction initially delivered until the redelivery of
an amended or reformed Instruction.
4.4 Timeliness of Instructions. In giving an Instruction, the Fund shall take into consideration known delays which may occur due to the
use of a Subcustodian or agent, differences in time zones, and other factors particular to a given market, exchange or issuer. When the Custodian has established specific timing requirements or deadlines with respect to particular classes of
Instructions and provided those requirements or deadlines to the Fund in writing (which may be via the Portal (defined below)), or when an Instruction is received by the Custodian at such a time that it could not reasonably be expected to have acted
on such Instruction due to time zone differences or other factors beyond its reasonable control, the execution of any Instruction received by the Custodian after such deadline or at such time (including any modification or revocation of a previous
Instruction) shall be at the risk of the Fund.
5. Safekeeping of Fund Assets. The Custodian
shall hold Investments delivered to it or Subcustodians for the Fund in accordance with the provisions of this Section. The Custodian shall not be responsible for (a) the safekeeping of Investments not delivered or that are not caused to be issued
to it or its Subcustodians, provided, in each case, such failure of the Investments to be so delivered or issued is not caused by the negligence, bad faith or willful misconduct, of the Custodian or any of its Subcustodians; or, (b) pre-existing
faults or defects in Investments that are delivered to the Custodian or its Subcustodians. The Custodian is hereby authorized to hold with itself or a Subcustodian, and to record in one or more accounts, all Investments delivered to and accepted by
the Custodian, any Subcustodian or their respective agents pursuant to an Instruction or in consequence of any corporate action or income event. The Custodian shall hold
Investments for the account of the Fund (for the applicable Portfolio) and shall segregate Investments from assets belonging to the Custodian and shall cause its Subcustodians to segregate Investments from assets
belonging to the Subcustodian in an account held for the Fund or in an account maintained by the Subcustodian generally for non-proprietary assets of the Custodian.
5.1 Use of Securities Depositories. The Custodian may deposit and maintain Investments in any Securities Depository, either directly
or through one or more Subcustodians appointed by the Custodian. Investments held in a Securities Depository shall be held (a) subject to the agreement, rules, statement of terms and conditions or other document or conditions effective between the
Securities Depository and the Custodian or the Subcustodian, as the case may be, and (b) in an account for the Fund or in bulk segregation in an account maintained for the non-proprietary assets of the entity holding such Investments in the
Depository. If market practice or the rules and regulations of the Securities Depository prevent the Custodian, the Subcustodian or (any agent of either) from holding its client assets in such a separate account, the Custodian, the Subcustodian or
other agent shall as appropriate segregate such Investments for benefit of the Fund or for benefit of clients of the Custodian generally on its own books.
5.2 Certificated Assets. Investments which are certificated may be held in registered or bearer form: (a) in the Custodian's vault; (b)
in the vault of a Subcustodian or agent of the Custodian or a Subcustodian; or (c) in an account maintained by the Custodian, Subcustodian or agent at a Securities Depository; all in accordance with customary market practice in the jurisdiction in
which any Investments are held.
5.3 Registered Assets. Investments which are registered may be registered in the name of the Custodian, a Subcustodian, or in the name
of the Fund, a Portfolio, or a nominee for any of the foregoing, and may be held in any manner set forth in Section 5.2 above.
5.4 Book Entry Assets. Investments which are represented by book-entry may be so held in an account maintained by the Book-Entry Agent
on behalf of the Custodian, a Subcustodian or another Agent of the Custodian, or a Securities Depository.
5.5 Replacement of Lost Investments. In the event of a loss of Investments for which loss the Custodian is responsible under the terms
of this Agreement, the Custodian shall replace such Investment, or in the event that such replacement cannot be effected, the Custodian shall pay to the affected Portfolio the fair market value of such Investment based on the last available price as
of the close of business in the relevant market on the date that a claim was first made to the Custodian with respect to such loss, or such other amount as shall be agreed by the parties.
6. Administrative Duties of the Custodian.
The Custodian shall perform the following administrative duties with respect to Investments of the Fund and its Portfolios.
6.1 Purchase of Investments. Pursuant to Instruction, Investments purchased for the account of the Fund (or a Portfolio) shall be paid
for (a) against delivery thereof to the Custodian or a Subcustodian, as the case may be, either directly or through a Clearing Corporation or a Securities Depository (in accordance with the rules of such Securities Depository or such Clearing
Corporation), or (b) otherwise in accordance with an Instruction, Applicable Law, generally accepted trade practices, or the terms of the instrument representing such Investment.
6.2 Sale of Investments. Pursuant to Instruction, Investments sold for the account of the Fund (or a Portfolio) shall be delivered
against payment therefor (a) in cash, by check or by bank wire transfer, (b) by credit to the account of the Custodian or the applicable Subcustodian, as the case may be, with a Clearing Corporation or a Securities Depository (in accordance with the
rules of such Securities Depository or such Clearing Corporation), or (c) otherwise in accordance with an Instruction, Applicable Law, generally accepted trade practices, or the terms of the instrument representing such Investment.
6.3 Delivery and Receipt in Connection with Borrowings of the Fund or other Collateral and Margin Requirements. Pursuant to
Instruction, the Custodian may deliver or receive Investments or cash of the Fund in connection with borrowings or loans by the Fund and other collateral and margin requirements.
6.4 Futures, Options and other Derivatives. If, pursuant to an Instruction, the Custodian shall become a party to an agreement with the
Fund, on behalf of a Portfolio, and a futures commission merchant or derivatives counterparty regarding margin (Tri-Party Agreement), the Custodian shall (a) receive and retain, to the extent the same are
provided to the Custodian, confirmations or other documents evidencing the purchase or sale by the Fund of exchange-traded futures contracts and commodity options or entry into other derivatives transactions; (b) when required by such Tri-Party
Agreement, deposit and maintain in an account opened pursuant to such Agreement (Margin Account), segregated either physically or by book-entry in a Securities Depository for the benefit of any futures
commission merchant or derivatives counterparty, such Investments as the Fund, on behalf of a Portfolio, shall have designated as initial, maintenance or variation "margin" deposits or other collateral intended to secure the Fund's performance of its
obligations, on behalf of a Portfolio, under the terms of any exchange-traded futures contracts and commodity options or other derivatives; and (c) thereafter pay, release or transfer Investments into or out of the margin account in accordance with
the provisions of such Agreement. Alternatively, the Custodian may deliver Investments, in accordance with an Instruction, to a futures commission merchant for purposes of margin requirements in accordance with Rule 17f-6 under the 1940 Act. The
Custodian shall in no event be responsible for the acts and omissions of any futures commission merchant to whom Investments are delivered pursuant to this Section; for the sufficiency of Investments held in any Margin Account; or, for the
performance of any terms of any exchange-traded futures contracts and commodity options or other derivatives.
6.5 Contractual Obligations and Similar Investments. From time to time, the Fund's Investments
may include Investments that are not ownership interests as may be represented by certificate (whether registered or bearer), by entry in a Securities Depository or by Book-Entry Agent, registrar or similar agent for recording ownership interests in
the relevant Investment. If the Fund shall at any time acquire such Investments, including without limitation deposit obligations, loan participations, repurchase agreements and derivative arrangements, the Custodian shall (a) receive and retain, to
the extent the same are provided to the Custodian, confirmations or other documents evidencing the arrangement; and (b) perform on the Fund's account in accordance with the terms of the applicable arrangement, but only to the extent directed to do so
by Instruction. The Custodian shall have no responsibility for agreements running to the Fund as to which it is not a party other than to retain, to the extent the same are provided to the Custodian, documents or copies of documents evidencing the
arrangement and, in accordance with Instruction, to include such arrangements in reports made to the Fund.
6.6 Exchange of Securities. Unless otherwise directed by Instruction, the Custodian shall: (a) exchange securities held for the
account of the Fund (or a Portfolio) for other securities in connection with any reorganization, recapitalization, conversion, stock split, change of par value of shares or similar event, and (b) deposit any such securities in accordance with the
terms of any reorganization or protective plan.
6.7 Surrender of Securities. Unless otherwise directed by Instruction, the Custodian may surrender securities: (a) in temporary form
for definitive securities; (b) for transfer into the name of an entity allowable under Section 5.3; and (c) for a different number of certificates or instruments representing in the aggregate the same number of shares or the same principal amount of
indebtedness.
6.8 Rights, Warrants, Etc. Pursuant to Instruction, the Custodian shall (a) deliver warrants, puts, calls, rights or similar securities
to the issuer or trustee thereof, or to any agent of the issuer or trustee, for purposes of exercising such rights or selling such securities, and (b) deliver securities in response to any tender offer.
6.9 Mandatory Corporate Actions. Unless otherwise directed by Instruction, the Custodian shall: (a) comply with the terms of all
mandatory or compulsory exchanges, calls, tenders, redemptions or similar rights of securities ownership affecting securities held on the Fund’s/Portfolio’s account and promptly notify the Fund of such action; and (b) collect all stock dividends,
rights and other items of like nature with respect to such securities.
6.10 Income Collection. Unless otherwise directed by Instruction, the Custodian shall collect any amount due and payable to the Fund
with respect to a Portfolio’s Investments and promptly credit the amount collected to a Principal or Agency Account (each as defined below); provided, however, that the Custodian shall not be responsible for: (a) the collection of amounts due and
payable with respect to Investments that are in default or (b) the collection of cash or share entitlements with respect to Investments that are not registered in the name of
the Custodian or its Subcustodians. The Custodian is hereby authorized to endorse and deliver any instrument required to be so endorsed and delivered to effect collection of any amount due and
payable to the Fund with respect to Investments.
6.11 Corporate Action
Information. In fulfilling the duties set forth in Sections 6.6 through 6.10 above, the Custodian shall without undue delay provide to the Fund, on behalf of the Portfolio, such material information pertaining to a corporate action
(including, without limitation, stock splits, stock dividends, reorganizations, and calls and maturities of securities) which the Custodian actually receives; provided that the Custodian shall not be responsible for the completeness or accuracy of
such information. Information relative to any pending corporate action made available to the Fund via any of the services described in the BBH Online Terms and Conditions shall constitute the delivery of such information by the Custodian. Any
advance credit of cash or shares expected to be received as a result of any corporate action shall be subject to actual collection and may be reversed by the Custodian.
6.12 Proxy Materials. The Custodian shall promptly deliver, or cause to be delivered, to the Fund proxy forms, notices of meeting,
and any other notices or announcements materially affecting or relating to Investments received by the Custodian. Information relative to any pending proxy, meeting or other announcement described in the preceding sentence made available to the
Fund, on behalf of any Portfolio, via any of the services described in the BBH Online Terms and Conditions shall constitute the delivery of such information by the Custodian.
6.13 Ownership Certificates and Disclosure of the Fund's Interest. The Custodian is hereby
authorized to execute on behalf of the Fund or a Portfolio ownership certificates, affidavits or other disclosure required under Applicable Law or established market practice in connection with the receipt of income, capital gains or other payments
by the Fund or Portfolio with respect to Investments, or in connection with the sale, purchase or ownership of Investments.
With respect to securities issued in the United States of America, the Custodian [ ] may [X] may not release the identity of the Fund to an issuer which requests such
information pursuant to the Shareholder Communications Act of 1985 for the specific purpose of direct communications between such issuer and the Fund. IF NO BOX IS CHECKED, THE CUSTODIAN SHALL RELEASE SUCH INFORMATION UNTIL IT RECEIVES CONTRARY
INSTRUCTIONS FROM THE FUND. With respect to securities issued outside of the United States of America, information shall be released in accordance with law or custom of the particular country in which such security is located.
6.14. Taxes. The Custodian shall, where applicable, assist the Fund and its Portfolios in the reclamation of taxes withheld on
dividends and interest payments received by the Fund, including on behalf of a Portfolio. In the performance of its duties with respect to tax withholding and reclamation, the Custodian shall be entitled to rely on the advice of others pursuant to
Section 12.11 below and upon information and advice regarding the Fund’s tax status that is received from or on behalf of the Fund without duty of separate inquiry.
6.15 Other Dealings. The Custodian shall otherwise act as directed by Instruction, including without limitation effecting the free
payments of moneys or the free delivery of securities, provided that such Instruction shall indicate the purpose of such payment or delivery and that the Custodian shall record the party to whom the payment or delivery is made.
6.16 Nondiscretionary Details and Minor Expenses. The Custodian shall attend to all nondiscretionary details in connection with the
sale or purchase or other administration of Investments, except as otherwise directed by Instruction, and may make payments for minor expenses of administering Investments under this Agreement. The Custodian shall disclose to the Fund (which may be
via online reporting) any such payments and the Fund shall have the right to request an accounting with respect to such expenses.
6.17 Use of Agents. The Custodian may at any time or times in its discretion appoint (and may at any time remove) any affiliate of
the Custodian, or third party bank, trust company or subcontractor as its agent (each such affiliate, bank, trust company or subcontractor an “Agent” and collectively, the “Agents”),
in addition to Subcustodians, to carry out provisions of this Agreement, including in connection with use of any Securities
System. The Custodian shall exercise reasonable care, prudence and diligence in the selection and monitoring of such Agents and Subcustodians. The appointment of an Agent or Subcustodian shall not
relieve the Custodian of its obligations under this Agreement. The Custodian shall be liable for the acts and omissions of its Agents to the extent that the Custodian would itself be liable for such acts or omissions under this Agreement had it
performed or not performed the relevant act or omission itself directly.
6.18 Registration Document Completion Service. The Fund may appoint the Custodian to further provide registration document completion
services for account openings, name changes, conversions, mergers, market-specific licensing renewals, account closings and other events, and for such markets, as may be agreed between the Fund and the Custodian from time to time (the “Registration
Services”). The Fund shall pay Custodian such fees as may be agreed between the parties from time to time with respect to the Registration Services in accordance with Section 14 hereof. The Fund further acknowledges and agrees that: (i) as part of
the Registration Services, the Custodian will complete registration documentation for the agreed markets on behalf of the Fund and then forward such documentation to the Fund or an Authorized Person for final review and signature on behalf of the
Fund; (ii) by the Fund or an Authorized Person signing and submitting the aforementioned documentation to the Custodian on behalf of the Fund (the "Submitted Documents"), the Fund shall be deemed to have confirmed to the Custodian that the Fund has
reviewed the Submitted Documents and has determined that all of the information contained therein is accurate and complete; (iii) the submission of the Submitted Documents to the Custodian, shall be deemed an Instruction under Section 4 hereof to
open one or more accounts in the referenced market (in accordance with the information provided in the Submitted Documents) and to provide the Submitted Documents and/or the information contained therein to the Subcustodian in the referenced market
(and where applicable, for further submission to the relevant Securities Depository, exchanges, regulatory and tax authorities, tax agents and/or brokers in the referenced market).
7. Cash Accounts, Deposits and Money Movements. Subject
to the terms and conditions set forth in this Section 7, the Fund hereby authorizes the Custodian to open and maintain, with itself or with Subcustodians, cash accounts in United States Dollars, in such other currencies as are the currencies of the
countries in which the Fund or a Portfolio maintains Investments or in such other currencies as the Fund, on behalf of the Portfolios, shall from time to time request by Instruction, including standing Instructions for Principal Accounts to
participate in a BBH&Co. cash management vehicle. Notwithstanding anything in this Agreement to the contrary, the Fund shall be liable as principal for any overdrafts occurring in its cash accounts.
7.1 Types of Cash Accounts. Cash accounts opened on the books of the Custodian (Principal Accounts) shall be opened in the name of the Fund, on behalf of the applicable Portfolios. Such accounts collectively shall be a deposit obligation of the Custodian and shall be subject to the terms of
this Section 7 and the general liability provisions contained in Section 9. Cash accounts opened on the books of a Subcustodian may be opened in the name of the Fund, on behalf of the Portfolios, or in the name of the Custodian for the Fund or in
the name of the Custodian for its customers generally (Agency Accounts). Such deposits shall be obligations of the Subcustodian and shall be treated as an Investment of the Fund and the applicable Portfolios.
Accordingly, the Custodian shall be responsible for exercising reasonable care in the administration of such accounts, and, without derogation of the Custodian’s obligation to use reasonable care, prudence and diligence in its selection and
monitoring of Subcustodians hereunder, shall not be liable for their repayment in the event the Subcustodian, by reason of its bankruptcy, insolvency or otherwise, fails to make repayment. In connection with the services provided hereunder, the
Custodian is hereby directed to open cash accounts on its books and records from time to time for the purposes of receiving subscriptions and/or processing redemptions on behalf of the Fund, and/or for the purposes of aggregating, netting and/or
clearing transactions (including, without limitation foreign exchange, repurchase agreements, capital stock activity, expense payment) or other administrative purposes on behalf of the Fund or the Fund on behalf of one or more Portfolios (each an
"Account"). Each such Account shall be subject to the terms and conditions of this Agreement (including, without limitation Section 7.6) and the Fund or the Fund on behalf of one or more Portfolios shall be liable for the satisfaction of its own
obligations in connection with each Account; provided however, the respective Portfolio shall not be liable for the obligations of any other affiliated Portoflio thereunder.
7.2 Payments and Credits with
Respect to the Cash Accounts. The Custodian shall make payments from or deposits to any of the cash accounts in the course of carrying out its administrative duties, including but not
limited to income collection with respect to a Portfolio’s Investments and payments of Fund expenses, and otherwise in accordance with Instructions. The Custodian and its Subcustodians shall be
required to credit amounts to the cash accounts only when moneys are actually received in cleared funds in accordance with banking practice in the country and currency of deposit. Any credit made to any Principal or Agency Account before actual
receipt of cleared funds shall be provisional and may be reversed by the Custodian in the event such payment is not actually collected. The Custodian will endeavor to provide the Fund with notification of any such reversal as soon as commercially
practicable. Unless otherwise specifically agreed in writing by the Custodian or any Subcustodian, all deposits shall be payable only at the branch of the Custodian or Subcustodian where the deposit is made or carried.
7.3 Currency and Related Risks. The Fund bears the risks of holding or transacting in any currency, including any xxxx to market exposure associated with a foreign exchange transaction undertaken with the
Custodian. The Custodian shall not be liable for any loss or damage arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event (not directly caused by the negligence, bad faith, or
willful misconduct in the performance of the Custodian’s obligations and duties hereunder), which may delay or affect the transferability, convertibility or availability of any currency in the country (a) in which such Principal or Agency Accounts
are maintained or (b) in which such currency is issued, and in no event shall the Custodian be obligated to make payment of a deposit denominated in a currency during the period during which its transferability, convertibility or availability has
been affected by any such law, regulation or event. Without limiting the generality of the foregoing, neither the Custodian nor any Subcustodian shall be required to repay any deposit made at a foreign branch of either the Custodian or Subcustodian
if such branch cannot repay the deposit due to a cause for which the Custodian would not be responsible in accordance with the terms of this Agreement unless the Custodian or such Subcustodian expressly agrees in writing to repay the deposit under
such circumstances. All currency transactions in any account opened pursuant to this Agreement are subject to exchange control regulations of the United States and of the country where such currency is the lawful currency or where the account is
maintained. Any taxes, costs, charges or fees imposed on the convertibility of a currency held by the Fund on behalf of a Portfolio shall be for the account of the Fund/Portfolio.
7.4 Foreign Exchange
Transactions. The Custodian shall, subject to the terms of this Section, settle foreign exchange transactions (including contracts, futures, options and options on futures) on behalf and for the
account of the Fund or a Portfolio with such currency brokers or banking institutions, including Subcustodians, as the Fund on behalf of a Portfolio may direct pursuant to Instructions. The Custodian may act as principal in any foreign exchange
transaction with the Fund in accordance with Section 7.4.2 of this Agreement. The obligations of the Custodian in respect of all foreign exchange transactions (whether or not the Custodian shall act as principal in such transaction) shall be
contingent on the free, unencumbered transferability of the currency transacted on the actual settlement date of the transaction.
7.4.1 Third Party Foreign Exchange Transactions. The Custodian shall process foreign exchange
transactions (including without limitation contracts, futures, options, and options on futures), where any third party acts as principal counterparty to the Fund or a Portfolio on the same basis it performs duties as agent for the Fund with respect
to any other of the Fund's or a Portfolio’s Investments. Accordingly, the Custodian shall only be responsible for delivering or receiving currency on behalf of the Fund or a Portfolio in respect of such contracts pursuant to Instructions. The
Custodian shall not be responsible for the failure of any counterparty (including any Subcustodian) in such agency transaction to perform its obligations thereunder. The Custodian (a) shall transmit cash and Instructions to and from the currency
broker or banking institution with which a foreign exchange contract or option has been executed, (b) may make free outgoing payments of cash in the form of Dollars or foreign currency without receiving confirmation of a foreign exchange contract or
option or confirmation that the countervalue currency completing the foreign exchange contract has been delivered or received or that the option has been delivered or received, (c) may, in connection with cash payments made to third party currency
brokers/dealers for settlement of the Fund’s foreign exchange spot or forward transactions, foreign currency swap transactions and similar foreign exchange transactions, process settlements using the facilities of the CLS Bank according to CLS Bank’s
standard terms and conditions, and (d) shall hold in safekeeping all confirmations, certificates and other documents and agreements received by the Custodian and evidencing or relating to such foreign exchange
transactions. The Fund on behalf of the Portfolios accepts full responsibility for its use of third-party foreign exchange dealers
and for execution of the foreign exchange contracts and options and understands that each applicable Portfolio shall be responsible for any and all costs and interest charges which may be incurred by
it or the Custodian as a result of the failure or delay of third parties to deliver foreign exchange.
7.4.2 Foreign Exchange with the Custodian as Principal. The Custodian may enter into foreign
exchange transactions with the Fund. If a foreign exchange transaction with the Custodian as principal is initiated by Instruction and the parties have not otherwise entered into an agreement specific to such transaction(s), the transaction will be
performed and subject to the terms and conditions posted on the Custodian’s website at: xxxx://xxx.xxx.xxx/xxxxxxxxxxxxxxxxxxxx and incorporated into the BBH Online Terms and Conditions ( the "FX Terms and Conditions"), which terms are
available in hardcopy upon request and may be updated from time to time. The Custodian shall provide notice of any material change to the FX Terms and Conditions to the Fund at least ten (10) business days prior to their taking effect, unless the
Custodian determines that the circumstances require that a shorter period apply. Foreign exchange transactions that occur or are placed on or after the effective date of such changes, as stated in the applicable notice, shall be governed by the FX
Terms and Conditions, as so modified. The Fund represents and warrants, each and every time an Instruction to execute a foreign exchange transaction with the Custodian as principal is initiated, that it is an eligible contract participant, as that
term is used under the Commodity Exchange Act and the regulations thereunder, as amended from time to time.
7.5 Delays. If no relevant event of Force Majeure shall have occurred and be continuing and in
the event that a delay shall have been caused by the negligence, bad faith or willful misconduct of the Custodian in carrying out an Instruction to credit or transfer cash, the Custodian shall be liable to the Fund on behalf of the applicable
Portfolio(s) for direct damages, which shall include: (a) with respect to Principal Accounts, for interest to be calculated at the rate customarily paid on such deposit and currency by the Custodian on overnight deposits at the time the delay
occurs for the period from the day when the transfer should have been effected until the day it is in fact effected; and, (b) with respect to Agency Accounts, for interest to be calculated at the rate customarily paid on such deposit and currency by
the Subcustodian on overnight deposits at the time the delay occurs for the period from the day when the transfer should have been effected until the day it is in fact effected. The Custodian shall not be liable for delays in carrying out
Instructions to transfer cash which are not due to the Custodian's own negligence, bad faith or willful misconduct hereunder.
7.6 Advances. If, for any reason in connection with this Agreement the Custodian or any Subcustodian makes an Advance to facilitate
settlement or otherwise for the benefit of the Fund or a Portfolio (whether or not any Principal or Agency Account shall be overdrawn either during, or at the end of, any Business Day), the Fund hereby does:
7.6.1 acknowledge that the Fund shall have no right, title or interest in or to any Investments purchased with such Advance or proceeds of such Investments, and that any credit of Investments to an
account of Fund shall be provisional, until: (a) the debit of the Principal or Agency Account by Custodian for an amount equal to Advance Costs; and/or (b) if such debit produces an overdraft in such account, reimbursement to the Custodian or
Subcustodian for the amount of such overdraft;
7.6.2 acknowledge that the Custodian has an automatically perfected statutory security interest in Investments purchased with any such Advance pursuant to Section 9-206 of the Uniform Commercial
Code as in effect in the State of New York from time to time;
7.6.3 in addition, in order to secure the obligations of the Fund to pay or perform any and all obligations of the Fund pursuant to this Agreement, including without limitation to repay any Advance
made pursuant to this Agreement, grant to the Custodian a security interest in all Investments and proceeds thereof (as defined in the Uniform Commercial Code as currently in effect in the State of New York); and agree to take, and agree that the
Custodian may take, in respect of the security interest referenced above, any further actions that the Custodian may reasonably require.
7.7 Custodian’s Rights Neither the Custodian nor any Subcustodian shall be obligated to make any Advance or to allow an Advance to
occur to the Fund or a Portfolio, and in the event that the Custodian or any
Subcustodian does make or allow an Advance, any such Advance and any transaction giving rise to such Advance shall be for the account and risk of the Fund and shall not be deemed to be a transaction
undertaken by the Custodian for its own account and risk. If such Advance shall have been made or allowed by a Subcustodian or any other person, the Custodian may assign all or part of its security interest referenced above and any other rights
granted to the Custodian hereunder to such Subcustodian or other person. If the Fund or Portfolio shall fail to repay the Advance Costs when due, the Custodian or its assignee, as the case may be, shall be entitled to a portion of the available cash
balance in any Agency or Principal Account of the Portfolio equal to such Advance Costs, and the Fund authorizes the Custodian, on behalf of the Fund or Portfolio, to pay an amount equal to such Advance Costs irrevocably to such Subcustodian or other
person, and to dispose of any property in such Account to the extent necessary to make such payment. Any Investments credited to accounts subject to this Agreement created pursuant hereto shall be treated as financial assets credited to securities
accounts under Articles 8 and 9 of the Uniform Commercial Code as in effect in the State of New York from time to time. Accordingly, the Custodian and any Subcustodian shall have the rights and benefits of a secured creditor that is a securities
intermediary under such Articles 8 and 9.
7.8 Integrated Account. For purposes hereof, deposits maintained in all Principal Accounts
(whether or not denominated in Dollars) shall collectively constitute a single and indivisible current account with respect to the Fund's obligations to the Custodian or its assignee, and balances in the Principal Accounts shall be available for
satisfaction of the Fund's obligations under this Section 7. The Custodian shall further have a right of offset against the balances in any Agency Account maintained hereunder to the extent that the aggregate of all Principal Accounts is overdrawn.
For the avoidance of doubt, it is acknowledged and agreed that under no circumstances shall the assets of one Portfolio be used to satisfy the debts or obligations of any other Portfolio of the Fund.
8. Subcustodians and Securities Depositories. Subject to the provisions hereinafter set forth in this Section 8, the Fund hereby authorizes the Custodian to utilize Securities Depositories to act on behalf of a Portfolio and to appoint from time to time
and to utilize Subcustodians. With respect to Investments and cash held by a Subcustodian, either directly or indirectly (including by a Securities Depository or Clearing Corporation), notwithstanding any provisions of this Agreement to the contrary,
payment for securities purchased and delivery of securities sold may be made prior to receipt of securities or payment, respectively, and securities or payment may be received in a form, in accordance with: (a) governmental regulations, (b) rules of
Securities Depositories and Clearing Corporations, (c) generally accepted trade practice in the applicable local market, (d) the terms and characteristics of the particular Investment, or (e) the terms of Instructions.
8.1 Domestic Subcustodians and Securities Depositories. The Custodian may deposit and/or
maintain, either directly or through one or more Agents appointed by the Custodian, Investments of the Fund in any Securities Depository in the United States, including The Depository Trust Company, provided such Depository meets applicable
requirements of the Federal Reserve Bank or of the SEC. The Custodian may, from time to time, appoint any bank as defined in Section 2(a)(5) of the 1940 Act meeting the requirements of a custodian under Section 17(f) of the 1940 Act and the rules and
regulations thereunder to act on behalf of the Fund as a Subcustodian for purposes of holding Investments of the Fund in the United States. The Custodian shall only use domestic “intermediary custodians” (as defined in Rule 17f-4 of the 0000 Xxx)
consistent with the requirements of Rule 17f-4 under the 0000 Xxx.
8.2 Foreign Subcustodians and Securities Depositories. Unless instructed otherwise by the Fund,
the Custodian may deposit and/or maintain non-U.S. Investments of the Fund in any Foreign Securities Depository provided such Securities Depository meets the requirements of an "eligible securities depository" under Rule 17f-7 promulgated under the
1940 Act, or any successor rule or regulation ("Rule 17f-7") or which by order of the SEC is exempted therefrom. Prior to the time that Investments are placed with such depository, but subject to the provisions of Section 8.5 below, the Custodian
shall have prepared and provided to the Fund an assessment of the custody risks associated with maintaining assets with the Securities Depository and shall have established a system to monitor such risks on a continuing basis in accordance with
Section 8.5 below. Additionally, the Custodian may, from time to time, appoint (a) any bank, trust company or other entity meeting the requirements of an “eligible foreign custodian” under Rule 17f-5 or which
by order of the SEC is exempted therefrom, or (b) any bank as defined in Section 2(a)(5) of the 1940 Act meeting the requirements of a custodian under Section 17(f) of the 1940 Act and the rules and regulations thereunder, to act on behalf of the
Fund as a Subcustodian for purposes of holding Investments of the Fund outside the United States.
8.3 Delegation of Board Review of Subcustodians. From time to time, the Custodian may agree to
perform certain reviews of Subcustodians and of Subcustodian Contracts as the delegate of the Board. In such event, the Custodian's duties and obligations with respect to this delegated review will be performed in accordance with the terms of the
attached 17f-5 Delegation Schedule to this Agreement.
8.4 Board Approval of Foreign Subcustodians. Unless and except to the extent that the Board has
delegated to the Custodian and the Custodian has accepted delegation of review of certain matters concerning the appointment of Subcustodians pursuant to Subsection 8.3, the Custodian shall, prior to the appointment of any Subcustodian for purposes
of holding Investments of the Fund or its Portfolios outside the United States, obtain written confirmation of the approval of the Board with respect to (a) the identity of a Subcustodian, and (b) the Subcustodian agreement which shall govern such
appointment, such approval to be signed by an Authorized Person. An Instruction to open an account in a given country shall comprise authorization of the Custodian to hold assets in such country in accordance with the terms of this Agreement. The
Custodian shall not be required to make independent inquiry as to the authorization of the Fund to invest in such country.
8.5 Monitoring and Risk Assessment of Securities Depositories. Prior to the placement of any
assets of the Fund or a Portfolio with a Foreign Securities Depository, the Custodian: (a) shall provide to the Fund or its authorized representative a written assessment of the custody risks associated with maintaining assets within such
Securities Depository; and (b) shall have established a system to monitor the custody risks associated with maintaining assets with such Securities Depository on a continuing basis and to promptly notify the Fund or its Investment Advisor of any
material changes in such risks. In performing its duties under this Section 8.5, the Custodian shall use reasonable care, prudence and diligence, and may rely on such reasonable sources of information as may be available including but not limited
to: (i) published ratings; (ii) information supplied by a Subcustodian that is a participant in such Securities Depository; (iii) industry surveys or publications; (iv) information supplied by the depository itself, by its auditors (internal or
external) or by the relevant Foreign Financial Regulatory Authority. It is acknowledged that information procured through some or all of these sources may not be independently verifiable by the Custodian and that direct access to Securities
Depositories is limited under most circumstances. Accordingly, the Custodian shall not be responsible for errors or omissions in its duties hereunder provided that it has performed its monitoring and assessment duties with reasonable care, prudence
and diligence. The risk assessment shall be provided to the Fund or its Investment Advisor by such means as the Custodian shall reasonably establish. Advices of material change in such assessment may be provided by the Custodian in the manner
established as customary between the Fund and the Custodian for transmission of material market information.
8.6 Responsibility for Subcustodians. The Custodian shall be liable to the Fund on behalf of its applicable Portfolios for any loss or damage thereto caused by or resulting from the acts or omissions of any Subcustodian to the
extent that such acts or omissions would be deemed to be negligence, bad faith or willful misconduct in accordance with the terms of the relevant subcustodian agreement under the laws, circumstances and practices prevailing in the place where the act
or omission occurred.
8.7 New Countries. The Fund shall be responsible for informing the Custodian sufficiently in advance of a proposed investment which is
to be held in a country in which no Subcustodian is authorized to act in order that the Custodian shall, if it deems appropriate to do so, have sufficient time to establish a subcustodial arrangement in accordance herewith. In the event, the
Custodian is unable to establish such arrangements prior to the time the investment is to be acquired, the Custodian is authorized to designate at its discretion a local safekeeping agent and shall notify the Fund of any such designation, and the use
of the local safekeeping agent shall be at the sole risk of the Fund, and accordingly the Custodian shall be responsible to the Fund for the actions of such agent if and only to the extent the Custodian shall have recovered from such agent for any
damages caused the Fund by such agent.
9. Responsibility of the Custodian. In
performing its duties and obligations hereunder, the Custodian shall use reasonable care, prudence and diligence of a professional custodian under the facts and circumstances prevailing in the market where performance is effected. Subject to the
specific provisions of this Section, the Custodian shall be liable to the Fund for any damage incurred by the Fund or a Portfolio in consequence of the Custodian's (or its employees’, officers’ or other agents’) negligence, bad faith, or willful
misconduct in the performance of its duties and obligations hereunder.
In no event shall the Custodian be liable hereunder for any special, indirect, punitive or consequential damages arising out of, pursuant to or in connection with this Agreement even if the Custodian has been advised
of the possibility of such damages. It is agreed that the Custodian shall have no duty to assess the risks inherent in the Fund's Investments or to provide investment advice with respect to such Investments and that the Fund and its Portfolios as
principal shall bear any risks attendant to particular Investments such as failure of counterparty or issuer.
9.1 Limitations of Performance. Neither party shall be
responsible under this Agreement for any failure to perform its duties under this Agreement, and shall not be liable hereunder for any loss or damage in association with such failure to perform to the extent resulting from the following causes:
9.1.1 Force Majeure. Force Majeure shall mean any circumstance or event
which is beyond the reasonable control of the Fund, Custodian, a Subcustodian or any agent of the Custodian or a Subcustodian and which adversely affects the performance by the Fund or Custodian of its obligations hereunder, by the Subcustodian of
its obligations under its subcustody agreement or by any other Agent of the Custodian or the Subcustodian, including any event caused by, arising out of or involving (a) an act of God, (b) fire, water or wind damage or explosion, (c) any computer,
system or other equipment failure or malfunction caused by any computer virus or the malfunction or failure of any communications medium, (d) any interruption of the power supply or other utility service, (e) any delay or disruption resulting from or
reflecting the occurrence of any Country, Sanctions or Sovereign Risk, (f) any disruption of, or suspension of trading in, the securities, commodities or foreign exchange markets, whether or not resulting from or reflecting the occurrence of any
Country, Sanctions or Sovereign Risk, or (g) any encumbrance on the transferability of a currency or a currency position on the actual settlement date of a foreign exchange transaction, whether or not resulting from or reflecting the occurrence of
any Country, Sanctions or Sovereign Risk. Each of the Fund and BBH&Co. agrees to use reasonable efforts to mitigate any such failure to perform in accordance with a commercially reasonable business continuity plan.
9.1.2 Country Risk. Country Risk shall mean, with respect to the acquisition,
ownership, settlement or custody of Investments in a jurisdiction, all risks relating to, or arising in consequence of, systemic and markets factors affecting the acquisition, payment for or ownership of Investments including (a) the prevalence of
crime and corruption, (b) the inaccuracy or unreliability of business and financial information, (c) the instability or volatility of banking and financial systems, or the absence or inadequacy of an infrastructure to support such systems, (d)
custody and settlement infrastructure of the market in which such Investments are transacted and held, (e) the acts, omissions and operation of a Securities Depository, (f) the risk of the bankruptcy or insolvency of banking agents, counterparties to
cash and securities transactions, registrars or transfer agents, and (g) the existence of market conditions which prevent the orderly execution or settlement of transactions or which affect the value of assets.
9.1.3 Sovereign Risk. Sovereign Risk shall mean, in respect of any
jurisdiction, including the United States of America, where Investments are acquired or held hereunder or under a subcustody agreement, (a) any act of war, terrorism, riot, insurrection or civil commotion, (b) the imposition of any investment,
repatriation or exchange control restrictions by any Governmental Authority, (c) the confiscation, expropriation or nationalization of any Investments or cash deposits by any Governmental Authority, whether de facto or de jure, (d) any government
sponsored devaluation or revaluation of the currency, (e) the imposition of taxes, levies or other charges affecting Investments or cash deposits, or (f) any change in the Applicable Law, or (g) political turmoil or government default.
9.1.4 AML and Sanctions Risk. AML and Sanctions Risk shall mean, with respect to the acquisition, ownership,
settlement or custody of Investments, all risks relating to, or arising in consequence of the Custodian complying with one or more Sanctions Regimes or applicable U.S. AML Laws, including, but not limited to, the risk that if Custodian reasonably
believes it has come in contact with a sanctioned party, or has come into possession or control of any Sanctioned Property as a result of its performance of this Agreement, Custodian may be required by one or more Sanctions Regime to block (i.e.
prevent further movement of) such Sanctioned Property and report any related activity to relevant government authorities. The Fund acknowledges that if multiple Sanctions Regimes apply (including OFAC), the Custodian will comply with the most
restrictive of the
applicable regimes. The Fund also acknowledges that the Custodian shall not be liable hereunder for any loss or damage caused by any delays or refusals to process a transaction that result from the Custodian’s
obligation to review such transaction to assess compliance with applicable AML Laws and Sanctions Regimes.
9.2. Limitations on Liability. Except as otherwise expressly provided in the above paragraphs of Section 9 (Responsibility
of the Custodian) of this Agreement, the Custodian shall not be liable for any loss, claim, damage or other liability arising from the following causes:
|
9.2.1 Failure of Third Parties. The failure of any third party (other than a Subcustodian or Agent, the Custodian’s responsibility for which is expressly covered under other
terms of this Agreement) including: (a) any issuer of Investments or Book-Entry Agent or other agent of an issuer; (b) any counterparty with respect to any Investment, including any issuer of exchange-traded or other futures, option,
derivative or commodities contract; (c) failure of an Investment Advisor, third party foreign custody manager or other agent of the Fund; or (d) failure of other third parties similarly beyond the control or choice of the Custodian.
|
9.2.2 Information Sources. The Custodian may rely upon information received from issuers of Investments or agents of
such issuers, information received from Subcustodians and from other commercially reasonable sources such as commercial data bases and the like, but shall not be responsible for specific inaccuracies in such information, provided that the Custodian
has relied upon such information in good faith, or for the failure of any commercially reasonable information provider.
9.2.3 Reliance on Instruction. Action by the Custodian or the Subcustodian in accordance with an Instruction, even when such action conflicts with, or is contrary to any provision of, the Fund's declaration of trust, certificate of trust or
by-laws, Applicable Law, or actions by the Board or shareholders of the Fund.
9.2.4 Restricted Securities. The limitations inherent in the rights, transferability or similar investment characteristics of a given
Investment of the Fund.
10. Indemnification. The Fund hereby agrees
to indemnify the Custodian and each Subcustodian and their respective agents, nominees and the partners, employees, officers and directors (collectively, the “BBH&Co. Indemnitees”), and agrees to hold each of them harmless from and against all
claims and liabilities, including reasonable counsel fees and taxes (calculated or verified by an independent expert or taxation authority), incurred or assessed against any of them in connection with the performance of this Agreement and any
Instruction; provided, however, that the BBH&Co. Indemnitees shall not be indemnified against any claims or liability (or any expenses incident thereto) to the extent caused by any BBH&Co. Indemnitee’s negligence, bad faith or willful
misconduct in the performance of its duties and obligations hereunder. Except with respect to the Fund’s indemnification obligations with respect to third party claims pursuant to this Section 10, in no event shall the Fund be liable hereunder for
any special, indirect, punitive or consequential damages arising out of, pursuant to or in connection with this Agreement even if the Fund has been advised of the possibility of such damages.
10.1 It is expressly acknowledged and agreed that the obligations of the Fund hereunder
shall not be binding upon any of the shareholders, Trustees, officers, employees or agents of the Fund personally, as provided in the Fund’s Declaration of Trust, but shall bind only the trust property of the Fund. The execution and delivery of this
Agreement have been authorized by the Board and signed by an officer of the Fund acting as such, and neither such authorization by such Board nor such execution and delivery by such officer shall be deemed to have been made by any of them
individually or to impose any liability on any of them personally, as provided in its Declaration of Trust, but shall bind only the trust property of the Fund.
11. Reports and Records. The Custodian shall:
11.1 create and maintain records relating to the performance of its obligations under this Agreement;
11.2 make available to the Fund, its auditors, agents and employees, upon reasonable request and during its normal business hours of the Custodian and the Fund, all records maintained by the
Custodian pursuant to Section 11.1 above, subject, however, to all reasonable security requirements of the Custodian then applicable to the records of its custody customers generally; and
11.3 make available to the Fund all Electronic Reports.
11.4 The Fund shall examine all records, however produced or transmitted, promptly upon receipt and notify the Custodian promptly of any discrepancy or error. Unless the Fund delivers written notice
of any such discrepancy or error within a reasonable time after its receipt of the records, absent manifest error, the records shall be deemed to be true and accurate.
11.5 The Fund acknowledges that the Custodian obtains information on the value of assets from outside sources which may be utilized in certain reports made available to the Fund. The Custodian deems
such sources to be reliable but the Fund acknowledges and agrees that the Custodian does not verify such information nor make any representations or warrantees as to its accuracy or completeness and accordingly shall be without liability in
selecting and using such sources and furnishing such information.
12. Miscellaneous.
12.1 Audits. At the Fund’s
request, but not more often than annually, the Custodian will provide the Fund with a copy of those portions of the Custodian’s SOC 1 audit report (or any successor report) applicable to the services hereunder (the “SOC 1 Information”). The SOC 1
Information and any information provided to the Fund pursuant to such due diligence requests shall be deemed to be Custodian’s confidential information.
12.2 Powers of Attorney, etc.
The Fund (for itself and/or on behalf of its Portfolios) will promptly execute and deliver, upon request, such proxies, powers of attorney or other instruments as may be reasonably necessary or desirable for the Custodian to provide, or to cause any
Subcustodian to provide, the services contemplated by this Agreement.
12.3 Entire Agreement;
Amendment. This Agreement constitutes the entire understanding and agreement of the parties hereto and supersedes any other oral or written agreements heretofore in effect between the Fund and the Custodian with respect to the subject
matter hereof. No provision of this Agreement may be amended or terminated except by a statement in writing signed by the party against which enforcement of the amendment or termination is sought, provided, however, that an Instruction shall, whether
or not such Instruction shall constitute a waiver, amendment or modification for purposes hereof, be deemed to have been accepted by the Custodian when it commences actions pursuant thereto or in accordance therewith. In the event of a conflict
between the terms of this Agreement and the terms of a service level agreement or other operating agreement in place between the parties from time to time, the terms of this Agreement shall control.
12.4 Binding Effect; Assignment. This Agreement shall be binding upon and shall inure to the benefit of the Custodian and the Fund
and their successors and assignees, provided that neither party may assign this Agreement without the prior written consent of the other party. Each party agrees that only the parties to this Agreement and/or their successors in interest shall have
a right to enforce the terms of this Agreement. Accordingly, no client of the Fund or other third party shall have any rights under this Agreement and such rights are explicitly disclaimed by the parties.
12.5 GOVERNING LAW, JURISDICTION AND VENUE. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES OF SUCH STATE. THE PARTIES HERETO IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS LOCATED IN NEW YORK CITY IN
THE BOROUGH OF MANHATTAN. THE FUND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING IN ANY OF THE AFORESAID COURTS AND ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. FURTHERMORE, EACH PARTY HERETO
HEREBY IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12.6 Notices. Notices
and other writings contemplated by this Agreement, other than Instructions, shall be delivered (a) by hand, (b) by first class registered or certified mail, postage prepaid, return receipt requested, (c) by a nationally recognized overnight courier,
or (d) by facsimile transmission, provided that any notice or other writing sent by facsimile transmission shall also be mailed, postage prepaid, to the party to whom such notice is addressed. All such notices shall be addressed, as follows:
|
If to the Fund:
|
||||||
|
0000 Xxxxxx Xxxxx Xxxxx
|
||||||
|
Xxxxxxxxxxx, XX 00000-0000
|
||||||
|
Attn: Chief Legal Officer
|
||||||
|
Telephone: 763/000-0000
|
||||||
|
If to the Custodian:
|
Xxxxx Brothers Xxxxxxxx & Co.
|
|||||
|
00 Xxxx Xxxxxx Xxxxxx
|
||||||
|
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
|
||||||
|
Attn: Office of the General Counsel
|
||||||
|
Telephone: (000) 000-0000
|
||||||
|
Facsimile: (000) 000-0000,
|
||||||
or such other address as the Fund or the Custodian may designate in writing to the other. Notices given by the Custodian pursuant to Sections 7.4.2 and 12.13 may also be given by electronic mail to the
email address of any Authorized Person. The Fund agrees that such notices given by electronic mail shall be conclusively presumed to have been delivered and received by the Fund as of the date such electronic mail was sent by the Custodian, as
recorded by the Custodian’s systems.
12.6 Headings. Paragraph headings included herein are for convenience of reference only and shall not modify, define, expand or limit
any of the terms or provisions hereof.
12. 7 Severability. In the event any provision of this Agreement is determined to be void or unenforceable, such determination shall
not affect the remainder of this Agreement, which shall continue to be in force.
12.8 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. This
Agreement shall become effective when one or more counterparts have been signed and delivered by the Fund and the Custodian. A photocopy, portable document format (.pdf) or telefax copy of the Agreement shall be acceptable evidence of the existence
of the Agreement.
12.9 Confidentiality. The parties hereto agree that each, including each party’s respective employees and agents, shall treat
confidentially all information provided by each party to the other regarding its business and operations, and, with respect to the Fund, regarding its shareholders and portfolio holdings. All confidential information provided by a party hereto shall
be used by any other party hereto solely for the purpose of rendering or obtaining services pursuant to this Agreement and, except as may be required in carrying out this Agreement (including, without limitation, disclosure to Subcustodians or
Agents appointed by the Custodian), shall not be disclosed to any third party without the prior consent of such providing party. The foregoing shall not be applicable to any information that is publicly available when provided or thereafter becomes
publicly available other than through a breach of this Agreement, or that is required to be disclosed by or to any regulator of the Custodian, any Agent or any Subcustodian, or the Fund, or any other similarly relevant regulatory authority, any
auditor or attorney of the parties hereto, or by judicial or administrative process or otherwise by Applicable Law.
12.9.1. The Custodian acknowledges that the Fund is prohibited by law from making selective public disclosure of information regarding portfolio holdings, and acknowledges and agrees that disclosure
of any and all such information to the Custodian hereunder is made strictly under the conditions of confidentiality set forth in this Section 12.9.1. and solely for the purposes of the performance of
custodial services hereunder, that any unauthorized use or disclosure of such information (including, without limitation, any trading on the basis of receipt of such information by the Custodian or
its agents or employees) may constitute a criminal offense of trading on or tipping of material inside information regarding publicly traded securities, that the Custodian’s provision of access to any and all such information regarding portfolio
holdings of the Fund shall be restricted to those persons needing such information in the course of the performance of duties hereunder, and that all such persons having access to such confidential information are under nondisclosure obligations at
least as protective of the such confidential information as those set forth herein. The Custodian further acknowledges that any breach or threatened breach of this Section 12.9.1. may cause not only financial damage, but irreparable harm to the Fund
for which money damages may not provide an adequate remedy. Accordingly, in the event of a breach of this Section 12.9.1., the Fund shall (in addition to all other rights and remedies it may have pursuant to this Agreement) be entitled to seek an
injunction to restrain disclosure or misuse, in whole or in part, of any confidential information.
12.10 Tape-recording. The Fund authorizes the Custodian to tape record any and all telephonic or other oral instructions given to the
Custodian by or on behalf of the Fund and/or its Portfolios, including from any Authorized Person. This authorization will remain in effect until and unless revoked by the Fund in writing.
12.11 Counsel/ Certified Public Accountant. The Custodian may consult with its outside counsel
or the Fund’s counsel (with the Fund’s consent) at the Custodian’s expense unless otherwise agreed by the parties in any case where so doing appears to the Custodian to be necessary or desirable. The Custodian shall not be considered to have engaged
in any misconduct or to have acted negligently and shall be without liability in acting upon the written advice of its outside counsel or of the Fund’s counsel.
The Custodian may consult with a certified public accountant at the Custodian’s expense or the Fund’s Treasurer in any case where so doing appears to the Custodian to be necessary or desirable. The
Custodian shall not be considered to have engaged in any misconduct or to have acted negligently and shall be without liability in acting upon the opinion of such certified public accountant or of the Fund’s Treasurer.
12.12 Conflict. Nothing contained in this Agreement shall prevent the Custodian and its associates from (i) dealing as a principal or
an intermediary in the sale, purchase or loan of the Fund’s Investments to, or from the Custodian or its associates; (ii) acting as a custodian, a subcustodian, a trustee, an agent, securities dealer, an investment manager or in any other capacity
for any other client whose interests may be adverse to the interest of the Fund; or (iii) buying, holding, lending, and dealing in any way in any assets for the benefit of its own account, or for the account of any other client whose interests may be
adverse to the Fund notwithstanding that the same or similar assets may be held or dealt in by, or for the account of the Fund by the Custodian. The Fund hereby waives any potential conflict of interest, to the extent permitted under Applicable Law,
including the 1940 Act, between the Custodian and/or its associates and the Fund, and agrees that:
(a) the Custodian’s and/or its associates’ engagement in any such transaction shall not
disqualify the Custodian from continuing to perform as the custodian of the Fund or Portfolios under this Agreement;
(b) the Custodian and/or its associates shall not be under any duty to disclose any
information in connection with any such transaction to the Fund; and
(c) the Custodian and/or its associates shall not be liable to account to the Fund or a
Portfolio for any profits or benefits made or derived by or in connection with any such transaction.
12.13 BBH Online Terms and Conditions. Use of the BBH WorldView® portal, any future release thereof or successor thereto (the “Portal”), and the products
and services available through the Portal (the “Online Services”) are subject to additional terms and conditions, which are available at: xxx.xxx/xxxxxxxxxxx, as such may be updated from time to time (the “BBH Online Terms and Conditions”)
and which are incorporated herein by reference and are available in hard copy upon request. Without limiting any provision of this Agreement or the BBH Online Terms and Conditions, the Fund is responsible for all use of the Online Services by its
authorized users (including employees, officers, directors, agents, consultants, contractors and any third parties given access to the Online Services by or on behalf of the Fund), and for ensuring that all such persons comply with the BBH Online
Terms and Conditions. BBH&Co. will inform the Fund of any updates or material changes to the BBH Online Terms and Conditions in accordance with the procedures set forth
therein.
13. Definitions. The following defined terms
will have the respective meanings set forth below.
13.1 Advance(s) shall mean any extension of
credit by or through the Custodian or by or through any Subcustodian and shall include, without limitation, amounts due to the Custodian as the principal counterparty to any foreign exchange transaction with the Fund as described in Section 7.4.2
hereof, or paid to third parties for account of the Fund or in discharge of any expense, tax or other item payable by the Fund.
13.2 Advance Costs shall mean any Advance,
interest on the Advance and any related expenses, including without limitation any xxxx to market loss of the Custodian or Subcustodian on any Investment to which Section 7.6.1 applies.
13.3 Agency Account(s) shall mean any
deposit account opened on the books of a Subcustodian or other banking institution in accordance with Section 7.1 hereof.
13.4 Agent(s) shall have the meaning set
forth in Section 6.17 hereof.
13.5 Applicable Law shall mean with respect
to each jurisdiction, all (a) laws, statutes, treaties, regulations, guidelines (or their equivalents); (b) orders, interpretations, licenses and permits; and (c) judgments, decrees, injunctions, writs, orders and similar actions by a court of
competent jurisdiction; compliance with which is required or customarily observed in such jurisdiction.
13.6 Authorized Person(s) shall mean any
person or entity authorized to give Instructions on behalf of the Fund in accordance with Section 4.1 hereof.
13.7 BBH Online Terms and Conditions shall
have the meaning set forth in Section 12.13 hereof.
13.8 Board shall mean the board of trustees
of the Fund.
13.9 Book-Entry Agent(s) shall mean an
entity acting as agent for the issuer of Investments for purposes of recording ownership or similar entitlement to Investments, including without limitation a transfer agent or registrar.
13.10Clearing Corporation shall mean any
entity or system established for purposes of providing securities settlement and movement and associated functions for a given market(s).
13.11 Delegation Schedule shall mean any
separate schedule entered into between the Custodian and the Fund or its authorized representative with respect to certain matters concerning the appointment and administration of Subcustodians delegated to the Custodian pursuant to Rule 17f-5 under
the 1940 Act.
13.12 Electronic Reports shall mean any reports prepared by the Custodian and remitted to the Fund or its authorized representative via the internet or
electronic mail.
13.13 EU shall mean the European Union and its member states
13.14 Foreign Custody Manager shall mean the
Fund’s foreign custody manager appointed pursuant to Rule 17f-5 of the 1940 Act.
13.15 Foreign Financial Regulatory Authority
shall have the meaning given by Section 2(a)(50) of the 0000 Xxx.
13.16 Funds Transfer Services Schedule shall
mean any separate schedule entered into between the Custodian and the Fund or its authorized representative with respect to certain matters concerning the processing of payment orders from Principal Accounts of the Fund.
13.17 Global
Custody Network Listing shall mean the Countries and Subcustodians approved for Investments in non-U.S. Markets.
13.18 Instruction(s) shall have the meaning
assigned in Section 4 hereof.
13.19Investment Advisor shall mean any person
or entity who is an Authorized Person to give Instructions with respect to the investment and reinvestment of the Fund's Investments.
13.20 Investment(s) shall mean any
investment asset of the Fund or Portfolios, including without limitation securities, bonds, notes, and debentures as well as receivables, derivatives, contractual rights or entitlements and other intangible assets, but shall not include any Principal
Account.
13.21 Margin Account shall have the meaning
set forth in Section 6.4 hereof.
13.22 OFAC shall mean the US Treasury Department’s Office of Foreign Assets Control.
13.23 Principal Account(s) shall mean
deposit accounts of the Fund or a Portfolio carried on the books of BBH&Co. as principal in accordance with Section 7 hereof.
13.24 Sanctions or Sanctions Regime(s) shall mean any governmental sanctions against countries, persons and entities that are imposed at
any time by the US, the EU, the United Nations or any other jurisdiction, which Custodian must comply with.
13.25 Securities Depository shall mean a
central or book entry system or agency established under Applicable Law for purposes of recording the ownership and/or entitlement to investment securities for a given market that, if a foreign Securities Depository, meets the definitional
requirements of Rule 17f-7 under the 1940 Act.
13.26 Subcustodian(s) shall mean each
foreign bank appointed by the Custodian pursuant to Section 8 hereof, but shall not include Securities Depositories.
13.27 Tri-Party Agreement shall have the
meaning set forth in Section 6.4 hereof.
13.28 1940 Act shall mean the Investment
Company Act of 1940.
14. Compensation. The Fund agrees to pay to
the Custodian (a) a fee in an amount set forth in the fee letter between the Fund and the Custodian (the “Fee Schedule”), in effect on the date hereof or as amended from time to time, and (b) all reasonable out-of-pocket expenses incurred by the
Custodian for account or benefit of the Fund or its Portfolios based on the agreed upon Fee Schedule, and payable from time to time. Amounts payable by the Fund under and pursuant to this Section 14 shall be payable by wire transfer to the Custodian
at BBH&Co. in New York, New York, unless the Fund raises reasonable issues with respect to the xxxx. Any such contested items shall be paid promptly after BBH&Co. has provided additional and reasonably satisfactory explanation of the
expenses.
15. Termination.This Agreement may be
terminated by either party in accordance with the provisions of this Section. The provisions of this Agreement and any other rights or obligations incurred or accrued by any party hereto prior to termination of this Agreement shall survive any
termination of this Agreement.
15.1 Term, Notice and Effect. This Agreement shall have an initial term of three (3) years from the date hereof. Thereafter, this
Agreement shall automatically renew for successive one (1) year periods provided that the Fund may terminate this Agreement at any time upon at least seventy-five (75) days written notice to the Custodian, and the Custodian may terminate this
Agreement at any time upon at least one-hundred and eighty (180) days’ written notice to the Fund. Notwithstanding the foregoing provisions, either party may terminate this Agreement at any time for Cause, in which case termination shall be
effective upon written receipt of notice by the non-terminating party.
15.1.1 Cause. Cause shall mean, (a) with respect to the Fund, for itself and each Portfolio, (i) a material breach by the Fund (on behalf
of the Fund and/or Portfolios) of the Agreement not cured within 60 days
or the Fund or a Portfolio is adjudged bankrupt or insolvent, or there shall be commenced against the Fund (for itself or a Portfolio) a case under any applicable bankruptcy, insolvency, or other
similar law now or hereafter in effect; and (b) with respect to the BBH&Co., that BBH&Co. (i) has failed in any material respect to perform its duties and obligations hereunder pursuant to the applicable standard of care set forth herein,
provided the Fund has notified the Custodian of such failure and the Custodian has not cured such failure within 60 days of such notice, (ii) has ceased to be qualified as a custodian under the 1940 Act, or has been indicted for a crime, has
commenced any bankruptcy or insolvency proceedings or has had such a proceeding initiated against it which is not dismissed within 60 days, or has suffered any other material adverse change in its financial condition or operations that is determined
by the Fund in its reasonable discretion to threaten the continuing performance of services hereunder or the reputation of the Fund, or (iii) it or its parent has been appointed a conservator or receiver by a regulatory agency or court of competent
jurisdiction.
15.1.2. Change of Control. BBH&Co. shall notify the Fund as soon as commercially practicable following the execution of any agreement
that would result in, or would be expected to result in, a change of control of the Custodian. Notwithstanding Section 15.1 above, this Agreement may be terminated by the Fund upon at least 60 days’ written notice following notice of execution of any
such agreement.
15.1.3. Non-Ordinary Course Transaction. Notwithstanding Section 15.1 above, this Agreement may be terminated by the Fund, with respect to
the Fund or a Portfolio, upon 30 days’ written notice to the Custodian in the event that the Board of the Fund approves (i) the liquidation or dissolution of the Fund or Portfolio, (ii) the merger of the Fund or Portfolio into, or the consolidation
of the Fund or Portfolio with, another entity, or (iii) the sale by the Fund or Portfolio of all, or substantially all, of its assets to another entity.
15.1.4. Separate Termination for Each Portfolio. Termination of this Agreement with respect to any one particular Portfolio shall in no
way affect the rights and duties under this Agreement with respect to any other Portfolio.
15.2 Notice and Succession. In the event a termination notice is given by a party hereto, all reasonable costs and expenses
associated with any required systems, facilities, procedures, personnel, and other resourced modifications as well as the movement of records and materials and the conversion thereof shall be paid by the Fund/Portfolio for which services shall cease
to be performed hereunder provided, that any special or unduly burdensome arrangements may, upon request of the Fund, be subject to discussion by the parties. Furthermore, to the extent that it appears impracticable given the circumstances to effect
an orderly delivery of the necessary and appropriate records of Custodian to a successor within the time specified in the notice of termination as aforesaid, Custodian and the Fund agree that this Agreement shall remain in full force and effect for
such reasonable period as may be required to complete necessary arrangements with a successor.
15.3 Successor Custodian. In the event of the appointment of a successor custodian, it is agreed
that the Investments of the Fund/Portfolio held by the Custodian or any Subcustodian shall be delivered to the successor custodian in accordance with reasonable Instructions. The Custodian agrees to cooperate with the Fund in the execution of
documents and performance of other actions necessary or desirable in order to facilitate the succession of the new custodian. If no successor custodian shall be appointed, the Custodian shall in like manner transfer the Fund's Investments in
accordance with Instructions.
15.4 Delayed Succession of Custodian. If no Instruction has been given as of the effective date of termination, Custodian may at any time
on or after such termination date and upon thirty (30) consecutive calendar days written notice to the Fund deliver any Investments and other assets held hereunder to (a) the Fund at the address designated for receipt of notices hereunder; or (b) a
“U.S. bank” as defined in the 1940 Act having an aggregate capital, surplus, and undivided profits, as shown by its last published report, of not less than $50,000,000 USD, such delivery to be at the risk of the Fund. In the event that Investments
or moneys of the Fund remain in the custody of the Custodian or its Subcustodians after the date of termination owing to the failure of the Fund to issue Instructions with respect to their disposition or owing to the fact that such disposition could
not be accomplished in accordance with such Instructions despite diligent efforts of the Custodian, the Custodian shall
be entitled to compensation for its services with respect to such Investments and moneys during such period as the Custodian or its Subcustodians retain possession of such items and the provisions
of this Agreement shall remain in full force and effect until disposition in accordance with this Section is accomplished.
16. Policies and Procedures; Insurance.
16.1 Compliance. To assist the Fund in complying with Rule 38a-1 of the 1940 Act, BBH&Co. represents that it has adopted written policies and
procedures reasonably designed to prevent violation of the federal securities laws in fulfilling its obligations under the Agreement and that it has in place a compliance program to monitor its compliance with those policies and procedures.
BBH&Co will upon request provide the Fund with information about its compliance program as mutually agreed.
16.2. Information Security. In order to safeguard confidential records and information of the Fund, including the personal information of the Fund’s
shareholders, employees, directors and/or officers that the Custodian receives, stores maintains, processes or otherwise accesses in connection the provision of services hereunder, the Custodian will implement and maintain a written information
security program that contains security measures reasonably designed to protect such records and information in the Custodian’s possession from unauthorized access by third parties. For these purposes, “personal information” means (i) an individual’s
name (first initial and last name or first name and last name), address or telephone number plus (a) social security number, (b) driver’s license number, (c) state identification card number, (d) debit or credit card number, (e) financial account
number or (f) personal identification number or password that would permit access to a person’s account or (ii) any combination of the foregoing that would allow a person to log onto or access an individual’s account. Notwithstanding the foregoing
“personal information” shall not include information that is lawfully obtained from publicly available information, or from federal, state or local government records lawfully made available to the general public.
16.3. Business Continuity Plan. Without
prejudice to the provisions of Section 9.1.1 (Force Majeure) of this Agreement, the Custodian agrees to implement and maintain a business continuity plan (including contingency facilities and procedures reasonably designed to provide for periodic
back-up of the computer files and data with respect to the Portfolios and emergency use of electronic data processing equipment) reasonably designed to permit the Custodian to resume the provision of the services under this Agreement or any exhibit,
schedule or annex hereto within forty-eight (48) hours, following any event which prevents the Custodian from providing such services (the “Business Continuity Plan”). The Custodian shall conduct a test of significant components of its Business
Continuity Plan not less frequently than annually, and upon reasonable request, discuss with senior management of the Fund such Business Continuity Plan and test results and answer questions regarding the same.
16.4. Insurance. The Custodian agrees to
maintain, at all times during the term of this Agreement, errors and omissions insurance, fidelity bonds and such other insurance as may be appropriate, in each case in a commercially reasonable amount as is customary for insurance typically
maintained by entities that perform similar duties and activities as Custodian provides hereunder for assets similar to the Fund’s assets. The insurance protection shall be in compliance with the requirements of the Custodian’s applicable banking
regulator.
17. Separate Agreements. Solely for the
convenience of the parties hereto, in lieu of executing an individual agreement between BBH&Co. and each Portfolio, BBH&Co. and the Fund have determined to execute this single Agreement on the terms contained herein. Therefore, anything in
this Agreement to the contrary notwithstanding, this Agreement will be interpreted as if the Fund on behalf of each Portfolio had executed a separate Agreement with BBH&Co. having the terms of this Agreement. Each such deemed Agreement is
intended to be, and shall be treated for all purposes as, a separate Agreement between BBH&Co. and the Fund on behalf of any other Portfolio. Accordingly, no Portfolio shall have any liability for the obligations of any other Portfolio, whether
hereunder or otherwise.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed as of the date first above written.
The undersigned acknowledges that (I/we) have received a copy of this document.
|
XXXXX BROTHERS XXXXXXXX & CO.
|
|
|
By: /s/Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Senior Vice President
Date: May 13, 2020
|
By: /s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President
Date: 05/12/2020
|
Annex A
SERIES OF AIM ETF PRODUCTS TRUST
AllianzIM U.S. Large Cap Buffer10 Apr ETF
AllianzIM U.S. Large Cap Buffer20 Apr ETF
AllianzIM U.S. Large Cap Buffer10 Jul ETF
AllianzIM U.S. Large Cap Buffer20 Jul ETF
FUNDS TRANSFER SERVICES SCHEDULE
(“FTSS”)
In accordance with Section 4.2 of the Custodian Agreement, the Fund acknowledges the following terms and conditions in respect of all funds transfers effected by the Custodian. References to UCC 4A shall mean Article
4A of the Uniform Commercial Code as currently in effect in the State of New York. Terms not otherwise defined herein shall have the meanings accorded to them in the Custodian Agreement.
1. Transmission of Payment Orders. Each FT Instruction shall be transmitted by such secured or
authenticated means and subject to such security procedures as the Custodian shall make available to the Fund from time to time (such transmission method and security procedures, a Custodian Designated Security
Procedure), unless the Fund shall elect to transmit such FT Instruction in accordance with a Fund Designated Security Procedure (as defined in Section 4 below). The Fund acknowledges and agrees that the Custodian will use the security
procedures referenced in Sections 3 and 4 below solely to authenticate a FT Instruction, as set forth herein, and not to detect any errors or omissions therein.
2. Custodian Designated Security Procedure. The Custodian will make the following Custodian
Designated Security Procedures available to the Fund for use in communicating FT Instructions to the Custodian:
◾ BBH Worldview® Payment Products. The Custodian offers to the Fund use of its
BBH Worldview Payment Products (“BBH Worldview”), which are Custodian proprietary on-line payment order authorization facilities with built-in authentication procedures. The Custodian and the Fund shall each be responsible for maintaining the
confidentiality of passwords or other codes used by them in connection with BBH Worldview. The Custodian will act on FT Instructions received through BBH Worldview without duty of further confirmation unless the Fund notifies the Custodian that its
password is not secure. The Fund agrees that access to, and use of, BBH Worldview shall be governed by the BBH Online Terms and Conditions as provided in Section 12.13 of the Agreement.
◾ SWIFT Transmission. The Custodian and the Fund shall comply with SWIFT’s
authentication procedures. The Custodian will act on FT Instructions received via SWIFT provided the instruction is authenticated by the SWIFT system.
◾ Written Instructions. Instructions may be transmitted in an original writing
that bears the manual signature of an Authorized Person(s).
3. Fund Designated Security Procedure. FT Instructions may be transmitted through such other
means, and subject to such additional security procedures, as may be elected by the Fund (or by an Authorized Person entitled to give Instructions) and acknowledged and accepted by the Custodian (the transmission methods and security procedures
referenced below, as may be supplemented by such additional security procedures, each a Fund Designated Security Procedure); it being understood that the Custodian’s acknowledgment shall authorize it to accept
such means of delivery but shall not represent a judgment by the Custodian as to the reasonableness or security of the means utilized by the Fund.
◾ Computer Transmission. The Custodian is able to accept transmissions
sent from the Fund’s computer facilities to the Custodian’s computer facilities. If the Fund determines to use its proprietary transmission or other electronic transmission method, it must provide Custodian sufficient notice and information to allow
testing or other confirmation that FT Instructions received via the Fund Designated Security Procedure can be processed in good time and order. The Custodian may require the Fund to execute additional documentation prior to the use of such
transmission method.
◾ Facsimile Transmission. A FT Instruction transmitted to the Custodian by
facsimile transmission must be transmitted by the Fund to a telephone number specified from time to time by the Custodian for such purposes. The Custodian will then follow one of the procedures below:
1. If the facsimile requests a non-repetitive order, the Custodian will call the Fund
and request to speak to a person authorized to validate orders on behalf of the Fund, and confirm the authorization and details of the payment order (a Callback);
2. If the facsimile FT Instruction pertains to a repetitive payment order (see Section
7 below), the Custodian may (at its sole discretion) perform a Callback. The Fund acknowledges that prior to its issuance of any repetitive payment order, it must (a) request that the appropriate repetitive payment order process be approved and set
up at the Custodian, and (b) complete such documentation as may be required by the Custodian, including a PPO (as defined in Section 7).
The Custodian shall rely on the purported identity of the originator but due to the lack of reliability of a facsimile signature, it will not perform signature verification on facsimiles.
◾ Telephonic. The Fund may call a telephonic payment order into the Custodian at
the telephone number designated from time-to-time by the Custodian for that purpose. The caller shall identify herself/himself as an Authorized Person. The Custodian shall obtain the FT Instruction details from the caller. The Custodian shall then
follow one of the procedures below:
i. If the telephonic FT Instruction pertains to a non-repetitive payment order, the
Custodian will perform a Callback; or
ii. If the telephonic FT Instruction pertains to a repetitive payment order (see
Section 7 below), the Custodian may (at its sole discretion) perform a Callback. The Fund acknowledges that prior to its issuance of any repetitive payment order, it must (a) request that the appropriate
repetitive payment order process be approved and set up at the Custodian, and (b) complete such documentation as may be required by the Custodian, including a PPO.
In electing to transmit a FT Instruction via a Fund Designated Security Procedure, the Fund (i) agrees to be bound by the transaction(s) or payment order(s) specified on said FT Instruction, whether or not authorized, and accepted by the Custodian
in compliance with such Fund Designated Security Procedure, and (ii) accepts the risk associated with such Fund Designated Security Procedure and confirms it is commercially reasonable for the transmission and authentication of the FT Instruction.
The parties agree that the Fund’s transmission of a FT Instruction by means of any of the above Fund Designated Security Procedures and the Custodian’s acceptance and execution of such FT Instruction shall constitute a FT Instruction sent via a
Fund Designated Security Procedure and governed by the terms of this FTSS.
4. Rejection of Payment Orders; Rescission of Designated
Security Procedure. The Custodian shall give the Fund prompt notice of the Custodian’s rejection of a FT Instruction. Such notice may be given in writing, via a Custodian Designated Security Procedure or any Fund Designated Security Procedure
used by the Fund, or orally by telephone, each of which is hereby deemed commercially reasonable. In the event the Custodian fails to execute a properly executable FT Instruction and fails to give the Fund notice of the Custodian’s non-execution,
the Custodian shall be liable only for the Fund’s actual damages and only to the extent that such damages are recoverable under UCC 4A. The Custodian, after providing prior written notice, may decide to no longer accept a particular Fund Designated
Security Procedure or Custodian Designated Security Procedure, or to do so only on revised terms, in the event that it determines that such agreed or established method of transmission represents a security risk or is attendant to any general change
in the Custodian’s policy regarding FT Instructions. Notwithstanding anything in this FTSS and the Agreement to the contrary, except with respect to the Fund’s indemnification obligations with respect to third party claims pursuant to Section 10 of
the Agreement (Indemnification), neither party shall be liable for any consequential, indirect, special or punitive damages under this FTSS, whether or not such damages relate to services covered by UCC 4A,
even if the party was advised of the possibility of such damages.
5. Cancellation of Payment Orders. The Fund may cancel a FT Instruction but the Custodian shall
have no liability for the Custodian’s failure to act on a cancellation FT Instruction unless the Custodian has received such cancellation FT Instruction at a time and in a manner affording the Custodian reasonable opportunity to act prior to the
Custodian’s execution of the original FT Instruction. Any cancellation FT Instruction shall be sent and confirmed by such means as is set forth in Section 3 or 4 above.
6. Preauthorized Repetitive Payment Orders. The Fund may establish with the Custodian a process to
preauthorize certain repetitive payments or transfers. The Fund will execute all documentation required by the Custodian, including a separate Preauthorized Repetitive Payment Order (PPO) form. The PPO shall
be delivered to the Custodian in writing or by another Custodian Designated Security Procedure or Fund Designated Security Procedure, and will become effective after the Custodian shall have had a reasonable opportunity to act thereon (or if later,
two (2) banking days after receipt by the Custodian). The PPO may take the form of either:
| (i) |
A standing instruction in which the Fund provides in the PPO all required information for a FT Instruction (except for the transfer date and amount) on a “standing instructions” basis. The
Fund may from time-to-time instruct the Custodian to make a payment under the PPO, in writing or another Custodian Designated Security Procedure or Fund Designated Security Procedure, which instruction shall reference the repetitive line
number (a number assigned to it by the Custodian after execution of the PPO), details of the payment, the transfer date and the amount of the transfer; or
|
| (ii) |
A recurring instruction in which the Fund supplies all required information for a FT Instruction with an instruction to process such payments with a specific frequency.
|
7. Responsibility for the Detection of Errors in Payment Orders; Liability of the Parties. The
purpose of any Fund Designated Security Procedure or Custodian Designated Security Procedure is to confirm the authenticity of any FT Instruction and is not designed to detect errors or omissions in such FT Instructions. Therefore, the Custodian is
not responsible for detecting any Fund error or omission contained in any FT Instruction received by the Custodian. In the event that the FT Instruction either (i) identifies the beneficiary by both a name and an identifying or Fund account number
and the name and number identify different persons or entities, or (ii) identifies any Fund by both a name and an identifying number and the number identifies a person or entity different from the Fund identified by name, execution of the relevant
payment order, payment to the beneficiary, cancellation of the payment order or actions taken by the Custodian or any Fund in respect of such payment order may be made solely on the basis of the number.
The Custodian shall not be liable for interest on the amount of any FT Instruction that was not authorized or was erroneously executed unless the Fund so notifies the Custodian within thirty (30) days following the
Fund’s receipt of notice that such FT Instruction was processed. Any compensation payable in the form of interest shall be payable in accordance with UCC 4A. If a FT Instruction in the name of the Fund and accepted by the Custodian was not
authorized by the Fund, the liability of the parties will be governed by the applicable provisions of UCC 4A.
17f-5 DELEGATION SCHEDULE
By its execution of this Delegation Schedule dated as of May 15, 2020, between AIM ETF Products Trust, a management investment company registered with the Securities and Exchange Commission (the Commission) under the Investment Company Act of 1940, as amended (the 1940 Act), acting through its Board of Trustees (the Board) or
its duly appointed representative (the Fund), hereby appoints XXXXX BROTHERS XXXXXXXX & CO., a New York limited partnership with an office in Boston, Massachusetts
(the Delegate) as its delegate to perform certain functions with respect to the custody of Fund's Assets outside the United States.
1. Maintenance of Fund's Assets Abroad. The Fund, acting through its Board or its duly authorized
representative, hereby instructs the Delegate pursuant to the terms of the Custodian Agreement dated as of the date hereof executed by and between the Fund and the Delegate (the Custodian Agreement) to place
and maintain the Fund's Assets in countries outside the United States in accordance with Instructions received from the Fund’s Investment Advisor. Such instruction shall constitute an Instruction under the terms of the Custodian Agreement. The Fund
acknowledges that (a) the Delegate shall perform services hereunder only with respect to the countries where it accepts delegation as Foreign Custody Manager as indicated on the Delegate’s Global Custody Network Listing; (b) depending on conditions
in the particular country, advance notice may be required before the Delegate shall be able to perform its duties hereunder in or with respect to such country (such advance notice to be reasonable in light of the specific facts and circumstances
attendant to performance of duties in such country); and (c) nothing in this Delegation Schedule shall require the Delegate to provide delegated or custodial services in any country, and there may from time to time be countries as to which the
Delegate determines it will not provide delegation services.
2. Delegation. Pursuant to the provisions of Rule 17f-5 under the 1940 Act as amended, the Board hereby delegates to the Delegate, and the Delegate hereby accepts such delegation and agrees to perform only those duties set
forth in this Delegation Schedule concerning the safekeeping of the Fund's Assets in each of the countries designated on the Global Custody Network Listing as to which it acts as the Fund’s delegate. The Delegate is hereby authorized to take such
actions on behalf of or in the name of the Fund as are reasonably required to discharge its duties under this Delegation Schedule, including, without limitation, to cause the Fund's Assets to be placed with a particular Eligible Foreign Custodian in
accordance herewith. The Fund confirms to the Delegate that the Fund or its Investment Advisor has considered the Sovereign Risk and Country Risk as part of its continuing investment decision process, including such factors as may be reasonably
related to the systemic risk of maintaining the Fund's Assets in a particular country, including, but not limited to, financial infrastructure, prevailing custody and settlement systems and practices (including the use of any Securities Depository in
the context of information provided by the Custodian in the performance of its duties as required under Rule 17f-7 and the terms of the Custodian Agreement governing such duties), and the laws relating to the safekeeping and recovery of the Fund's
Assets held in custody pursuant to the terms of the Custodian Agreement.
3. Selection of Eligible Foreign Custodian and Contract Administration. The Delegate shall perform the following duties with respect to the selection of Eligible Foreign Custodians and administration of certain contracts governing the
Fund's foreign custodial arrangements:
(a) Selection of Eligible Foreign Custodian. The Delegate shall place and
maintain the Fund's Assets with an Eligible Foreign Custodian, provided that the Delegate shall have determined that the Fund's Assets will be subject to reasonable care based on the standards applicable to custodians in the relevant market after
considering all factors relevant to the safekeeping of such assets including without limitation:
(i) The Eligible Foreign Custodian's practices, procedures, and internal controls,
including, but not limited to, the physical protections available for certificated securities (if applicable), the controls and procedures for dealing with any Securities Depository, the method of keeping custodial records, and the security and data
protection practices;
(ii) Whether the Eligible Foreign Custodian has the requisite financial strength to
provide reasonable care for the Fund's Assets;
(iii) The Eligible Foreign Custodian's general reputation and standing; and
(iv) Whether the Fund will have jurisdiction over and be able to enforce judgments
against the Eligible Foreign Custodian, such as by virtue of the existence of offices of such Eligible Foreign Custodian in the United States or such Eligible Foreign Custodian's appointment of an agent for, or its own consent to, service of process
in the United States or consent to jurisdiction in the United States.
The Delegate shall be required to make the foregoing determination to the best of its knowledge and belief based only on information reasonably available to it.
(b) Contract Administration. The Delegate shall cause that the foreign custody
arrangements with an Eligible Foreign Custodian shall be governed by a written contract that the Delegate has determined will provide reasonable care for Fund assets based on the standards applicable to custodians in the relevant market. Each such
contract shall, except as set forth in the last paragraph of this subsection (b), include provisions that provide:
(i) For indemnification or insurance arrangements (or any combination of the foregoing)
such that the Fund will be adequately protected against the risk of loss of assets held in accordance with such contract;
(ii) That the Fund's Assets will not be subject to any right, charge, security
interest, lien or claim of any kind in favor of the Eligible Foreign Custodian or its creditors except a claim of payment for their safe custody or administration or, in the case of cash deposits, liens or rights in favor of creditors of such
Custodian arising under bankruptcy, insolvency or similar laws;
(iii) That beneficial ownership of the Fund's Assets will be freely transferable
without the payment of money or value other than for safe custody or administration;
(iv) That adequate records will be maintained identifying the Fund's Assets as
belonging to the Fund or as being held by a third party for the benefit of the Fund;
(v) That the Fund's independent public accountants will be given access to those
records described in (iv) above or confirmation of the contents of such records; and
(vi) That the Delegate will receive sufficient and timely periodic reports with respect
to the safekeeping of the Fund's Assets, including, but not limited to, notification of any transfer to or from the Fund's account or a third party account containing the Fund's Assets.
Such contract may contain, in lieu of any or all of the provisions specified in this Section 3(b), such other provisions that the Delegate determines will provide, in their entirety, the same or a
greater level of care and protection for the Fund's Assets as the specified provisions, in their entirety.
(c) Limitation to Delegated Selection. Notwithstanding anything in this
Delegation Schedule to the contrary, the duties under this Section 3 shall apply only to Eligible Foreign Custodians selected by the Delegate and shall not apply to Securities Depositories or to any Eligible Foreign Custodian that the Delegate is
directed to use pursuant to Section 7 of this Delegation Schedule.
4. Monitoring. The Delegate shall establish and maintain a system to monitor at reasonable
intervals (but at least annually) the appropriateness of maintaining the Fund's Assets with each Eligible Foreign Custodian that has been selected by the Delegate pursuant to Section 3 of this Delegation Schedule. The Delegate shall monitor the
continuing appropriateness of placement of the Fund's Assets in accordance with the criteria established under Section 3(a) of this Delegation Schedule. The Delegate shall monitor the continuing appropriateness of the contract governing the Fund's
arrangements in accordance with the criteria established under Section 3(b) of this Delegation Schedule.
5. Reporting. At least annually and more frequently as mutually agreed between the parties, the
Delegate shall provide to the Board written reports specifying placement of the Fund's Assets with each Eligible Foreign Custodian selected by the Delegate pursuant to Section 3 of this Delegation Schedule and shall promptly report on any material
changes to such foreign custody arrangements. Delegate will prepare such a report with respect to any Eligible Foreign Custodian that the Delegate has been instructed to use pursuant to Section 7 of this Delegation Schedule only to the extent
specifically agreed with respect to the particular situation.
6. Withdrawal of Fund's Assets. If the Delegate determines that an arrangement with a specific
Eligible Foreign Custodian selected by the Delegate under Section 3 of this Delegation Schedule no longer meets the requirements of said
Section, Delegate shall withdraw the Fund's Assets from the non-complying arrangement as soon as reasonably practicable; provided, however, that if in the reasonable judgment of the Delegate, such withdrawal would
require liquidation of any of the Fund's Assets or would materially impair the liquidity, value or other investment characteristics of the Fund's Assets, it shall be the duty of the Delegate to provide information regarding the particular
circumstances and to act only in accordance with Instructions of the Fund or its Investment Advisor with respect to such liquidation or other withdrawal.
7. Direction as to Eligible Foreign Custodian. Notwithstanding this Delegation Schedule, the Fund,
acting through its Board, its Investment Advisor or its other authorized representative, may direct the Delegate to place and maintain the Fund's Assets with a particular Eligible Foreign Custodian, including without limitation with respect to
investment in countries as to which the Custodian will not provide delegation services. In such event, the Delegate shall be entitled to rely on any such instruction as an Instruction under the terms of the Custodian Agreement and shall have no
duties under this Delegation Schedule with respect to such arrangement save those that it may undertake specifically in writing with respect to each particular instance.
8. Standard of Care. In carrying out its duties under this Delegation Schedule, the Delegate agrees
to exercise reasonable care, prudence and diligence such as a person having responsibility for safekeeping the Fund's Assets would exercise.
9. Representations. The Delegate hereby represents and warrants that it is a U.S. Bank, as defined
in Rule 17f-5(a)(7) under the 1940 Act, and that this Delegation Schedule has been duly authorized, executed and delivered by the Delegate and is a legal, valid and binding agreement of the Delegate.
The Fund hereby represents and warrants that the Board has determined that it is reasonable to rely on the Delegate to perform the delegated responsibilities provided for herein and that this Delegation Schedule has
been duly authorized, executed and delivered by the Fund and is a legal, valid and binding agreement of the Fund.
10. Effectiveness; termination. This Delegation Schedule shall be effective as of the date on which
this Delegation Schedule shall have been accepted by the Delegate, as indicated by the date set forth below the Delegate's signature. This Delegation Schedule may be terminated at any time, without penalty, by written notice from the terminating
party to the non-terminating party. Such termination shall be effective on the 30th calendar day following the date on which the non-terminating party shall receive the foregoing notice. The foregoing to the contrary notwithstanding, this
Delegation Schedule shall be deemed to have been terminated concurrently with the termination of the Custodian Agreement.
11. Notices. Notices and other communications under this Delegation Schedule are to be made in accordance with the arrangements designated for such purpose under the Custodian Agreement unless
otherwise indicated in a writing referencing this Delegation Schedule and executed by both parties.
12. Definitions. Capitalized terms not otherwise defined in this Delegation Schedule have the following meanings:
a. Country Risk – shall have the meaning set forth in the Custodian Agreement.
b. Eligible Foreign Custodian - shall have the meaning set forth in Rule
17f-5(a)(1) of the 1940 Act and shall also include a U.S. Bank.
c. Fund's Assets - shall mean any of the Fund's investments (including foreign
currencies) for which the primary market is outside the United States, and such cash and cash equivalents as are reasonably necessary to effect the Fund's transactions in such investments.
d. Instructions - shall have the meaning set forth in the Custodian Agreement.
e. Securities Depository - shall have the meaning set forth in Rule 17f-7 under the 1940 Act.
f. Sovereign Risk - shall have the meaning set forth in the Custodian Agreement.
g . U.S. Bank - shall mean a bank which qualifies to serve as a custodian of
assets of investment companies under Section 17(f) of the 1940 Act.
13. Governing Law and Jurisdiction. This Delegation Schedule shall be construed in accordance with the laws of the State of New York. The parties hereby submit to the exclusive jurisdiction of the Federal courts sitting in the
State of New York or of the state courts of such State.
14. Fees. Delegate shall perform its functions under this Delegation Schedule for the compensation
determined under the Custodian Agreement.
15. Integration. This Delegation Schedule sets forth all of the Delegate's duties with respect to
the selection and monitoring of Eligible Foreign Custodians, the administration of contracts with Eligible Foreign Custodians, the withdrawal of assets from Eligible Foreign Custodians and the issuance of reports in connection with such duties. The
terms of the Custodian Agreement shall apply generally as to matters not expressly covered in this Delegation Schedule, including dealings with the Eligible Foreign Custodians in the course of discharge of the Delegate's obligations under the
Custodian Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed as of the date first above written.
The undersigned acknowledges that (I/we) have received a copy of this document.
|
XXXXX BROTHERS XXXXXXXX & CO.
|
|
|
By: /s/Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Senior Vice President
|
By: /s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President
|
US MONEY MARKET FUND INVESTMENTS SCHEDULE TO CUSTODIAN AGREEMENT
TERMS & CONDITIONS
FOR PROCESSING ORDERS IN U.S. MONEY MARKET FUNDS (“US MMF T&C”)
This US MMF T&C supplements the Custodian Agreement between AIM ETF Products Trust on behalf of each of its Portfolios listed on Annex A thereto (“Client”) and Xxxxx Brothers Xxxxxxxx & Co. (“BBH”) dated May 15, 2020, as amended from time to time (the “Custodian Agreement”), and provides terms and conditions related to Instructions to BBH thereunder to process orders in and custody shares of U.S.
registered investment companies that hold themselves out as money market funds (“MMFs”), if any. Capitalized terms used herein and not defined shall have the meanings ascribed to them in the Custodian Agreement.
US MMFs are subject to various requirements under Rule 2a-7 under the Investment Company Act of 1940 (the “1940 Act”), as adopted by the Securities and Exchange Commission on July 23, 2014 (as
further amended from time-to-time, “Rule 2a-7”).
The MMFs will disclose in their prospectus and statement of additional information, as amended from time to time, that the MMFs are subject to certain limitations and restrictions pursuant to
amendments to Rule 2a-7, including provisions relating to the calculation of net asset values (“NAVs”), imposition of liquidity fees on redemptions (“liquidity fees”) or the temporary suspension of redemptions (a “redemption gate”), and shareholder
eligibility requirements.
If Client provides BBH with an Instruction to process orders for transactions in MMFs and/or requires BBH to service shares of MMFs, Client shall assist and cooperate with BBH, the MMFs and the
MMFs’ agents to comply with Rule 2a-7. Without limitation on the foregoing, fund order processing and custody of shares of MMFs are subject to the following additional terms and conditions.
| 1) |
Orders in MMFs.
|
| a) |
Any Instruction by the Client to purchase any MMF shall be based on the gross dollar amount of the value of shares to be purchased.
|
| b) |
Any Instruction by the Client for subscriptions, exchanges or redemption orders in any MMF shall be made gross and shall not net any subscription, exchange or redemption orders in any MMF, including any orders originating from
underlying customers of the Client, if any.
|
| 2) |
Liquidity Fees and Gates.
|
| a) |
Client (and not BBH) will be responsible for reviewing any disclosure on a MMF website providing notice to shareholders and prospective shareholders of liquidity of the MMF and when liquidity fees or redemption gates are imposed or
lifted and Client agrees that BBH is not responsible for notifying the Client of the imposition by an MMF of any such event or
|
re-confirming the Client’s intent to transact in a MMF when a liquidity fee or redemption gate is in effect.
| b) |
If a liquidity fee is implemented by a MMF, BBH will not be directly responsible for calculating or withholding the liquidity fee, but will apply any liquidity fee calculated and withheld by the MMF from any order as notified by the
MMF or Distributor to BBH.
|
| c) |
If a redemption gate is implemented by a MMF, Client acknowledges and agrees that any redemption or exchange orders in the MMF made by Client while the redemption gate is in effect may be rejected by the MMF, and that BBH is
responsible for rejecting only those orders that BBH has been notified have been rejected by the MMF or its agents. Client shall endeavor not to instruct BBH to place an order for a redemption in a MMF when a redemption gate is in effect
for such MMF.
|
| 3) |
Retail MMFs.
|
BBH does not support and is not responsible for the order processing, purchase, exchange, redemption, settlement, custody or other servicing of shares of Retail MMFs (as defined
in Rule 2a-7(a)(25)). Client shall establish policies, procedures and internal controls reasonably designed to ensure that it does not, and shall not, submit any request or other instruction to BBH to purchase or exchange shares of a Retail MMF.
| 4) |
No Agency.
|
With respect to orders in a MMF:
| a) |
BBH generally elects not serve as the MMF’s dealer, agent, or designee for purposes of Rule 22c-1 under the 1940 Act in connection with the receipt of orders;
|
| b) |
Accordingly, the MMF will apply a NAV calculation based on the time that the MMF accepts the order in good form from BBH, and not the time the Client instructs BBH to process the order; and
|
| c) |
Neither BBH nor the MMF or its distributor is responsible for any losses arising from orders accepted by BBH before, but received and accepted by the MMF after, a NAV calculation time, or imposition of a liquidity fee or redemption
gate.
|
Any order for shares in a MMF placed and held in custody by BBH will be made in reliance upon the terms hereof.
*** *** ***
