EXECUTION
CUSTODY AGREEMENT
BY AND BETWEEN
XXXXXX DIVERSIFIED OPPORTUNITIES FUND
AND
THE BANK OF NEW YORK MELLON
EXECUTION
TABLE OF CONTENTS
PAGE
SECTION 1 -- CUSTODY ACCOUNTS; INSTRUCTIONS ............................. 1
1.1 Definitions ...................................................... 1
1.2 Establishment of Account ......................................... 3
1.3 Representations and Warranties ................................... 3
1.4 Distributions .................................................... 6
1.5 Authorized Instructions .......................................... 6
1.6 Authentication ................................................... 6
1.7 On-Line Systems .................................................. 6
SECTION 2 -- CUSTODY SERVICES ........................................... 6
2.1 Holding Securities ............................................... 6
2.2 Depositories ..................................................... 8
2.3 Agents[ .......................................................... 8
2.4 Custodian Actions without Direction[ ............................. 8
2.5 Custodian Actions with Direction ................................. 9
2.6 Foreign Exchange Transactions .................................... 9
SECTION 3 -- CORPORATE ACTIONS .......................................... 10
3.1 Custodian Notification ........................................... 10
3.2 Direction ........................................................ 10
3.3 Voting Rights .................................................... 10
3.4 Partial Redemptions, Payments, Etc ............................... 10
SECTION 4 -- SETTLEMENT OF TRADES ....................................... 10
4.1 Payments ......................................................... 10
4.2 Contractual Settlement and Income ................................ 10
4.3 Trade Settlement ................................................. 11
SECTION 5 -- DEPOSITS AND ADVANCES ...................................... 11
5.1 Deposits ......................................................... 11
5.2 Sweep and Float .................................................. 11
5.3 Overdrafts and Indebtedness ...................................... 11
5.4 Securing Repayment ............................................... 11
5.5 Setoff ........................................................... 12
5.6 Bank Borrowings .................................................. 12
SECTION 6 -- SALE AND REDEMPTION OF SHARES .............................. 13
6.1 Sale of Shares ................................................... 13
6.2 Redemption of Shares ............................................. 13
6.3 Check Redemptions ................................................ 13
SECTION 7 -- PAYMENT OF DIVIDENDS AND DISTRIBUTIONS ..................... 13
7.1 Determination to Pay ............................................. 13
7.2 Payment .......................................................... 13
SECTION 8 -- TAXES, REPORTS AND RECORDS ................................. 13
i
EXECUTION
8.1 Tax Obligations ................................................ 13
8.2 Pricing and Other Data ......................................... 14
8.3 Statements and Reports ......................................... 14
8.4 Review of Reports .............................................. 15
8.5 Books and Records .............................................. 15
8.6 Required Disclosure ............................................ 15
8.7 Tools .......................................................... 15
SECTION 9 -- PROVISIONS REGARDING CUSTODIAN ............................. 16
9.1 Standard of Care ............................................... 16
9.2 Limitation of Duties and Liability ............................. 16
9.3 Losses ......................................................... 17
9.4 Gains .......................................................... 17
9.5 Force Majeure .................................................. 18
9.6 Fees ........................................................... 18
9.7 Business Continuity ............................................ 18
9.8 Indemnification ................................................ 18
SECTION 10 -- AMENDMENT; TERMINATION; ASSIGNMENT ........................ 19
10.1 Amendment ...................................................... 19
10.2 Termination .................................................... 19
10.3 Successors and Assigns ......................................... 19
SECTION 11 -- ADDITIONAL PROVISIONS ..................................... 20
11.1 Non-Custody Assets ............................................. 20
11.2 Appropriate Action ............................................. 20
11.3 Governing Law .................................................. 20
11.4 Representations ................................................ 20
11.5 USA PATRIOT Act ................................................ 20
11.6 Non-Fiduciary Status ........................................... 21
11.7 Notices ........................................................ 21
11.8 Entire Agreement ............................................... 21
11.9 Necessary Parties .............................................. 21
11.10 Execution in Counterparts ...................................... 21
ii
EXECUTION
CUSTODY AGREEMENT
CUSTODY AGREEMENT, dated as of the latest date set forth on the
signature page hereto, between XXXXXX DIVERSIFIED OPPORTUNITIES FUND, a
statutory trust, organized under the laws of Delaware (the "Fund") and THE BANK
OF NEW YORK MELLON, a bank organized under the laws of the state of New York
(the "Custodian").
SECTION 1 -- CUSTODY ACCOUNTS; INSTRUCTIONS
1.1 DEFINITIONS. Whenever used in this Agreement, the following words
shall have the meanings set forth below:
"'40 ACT" shall have the meaning set forth in Section 1.3.
"ACCOUNT" or "ACCOUNTS" shall have the meaning set forth in Section
1.2.
"AUTHORIZED INSTRUCTIONS" shall have the meaning set forth in Section
1.5.
"AUTHORIZED PERSON" shall mean any Person authorized by the Fund to
give Oral Instructions or Instructions with respect to one or more Accounts or
with respect to foreign exchange, derivative investments or information and
transactional web based services provided by the Custodian or a BNY Mellon
Affiliate. Authorized Persons shall include Persons authorized by an
Authorized Person. Authorized Persons, their signatures and the extent of their
authority shall be provided by a Certificate. The Custodian may conclusively
rely on the authority of an Authorized Person until it receives Written
Instructions to the contrary.
"BNY MELLON AFFILIATE" shall mean any direct or indirect subsidiary
of The Bank of New York Mellon Corporation.
"BNY MELLON GROUP" shall have the meaning set forth in Section 9.5.
"BOOK-ENTRY SYSTEM" shall mean the United States Federal
Reserve/Treasury book-entry system for receiving and delivering securities, its
successors and nominees.
"BUSINESS DAY" shall mean any day on which the Custodian and relevant
Depositories are open for business.
"CENTRALIZED FUNCTIONS" shall have the meaning set forth in Section
9.5.
"CERTIFICATE" shall mean the notices, instructions or other
instruments in writing, authorized or required by this Agreement to be given to
the Custodian, which are required to be signed on behalf of the Fund by two (2)
Authorized Persons or persons reasonably believed by the Custodian to be
Authorized Persons and which are actually received by the Custodian by letter
or facsimile or electronic transmission.
"COUNTRY RISK EVENT" shall mean (a) issues relating to the financial
infrastructure of a country, (b) issues relating to a country's prevailing
custody and settlement practices, (c)
EXECUTION
nationalization, expropriation or other governmental actions, (d) issues
relating to a country's regulation of the banking or securities industry, or
(e) currency controls, restrictions, devaluations, redenominations or
fluctuations or (f) market conditions, in each case which affect the orderly
execution or settlement of securities transactions or affect the value of
securities.
"DATA PROVIDERS" shall mean pricing vendors, analytics providers,
brokers, dealers, investment managers, Authorized Persons, Subcustodians,
Depositories and any other Person providing Market Data to the Custodian.
"DATA TERMS WEBSITE" shall mean
XXXX://XXXXXXXXX.XXX/XXXXXXXX/XXXXXXXXXXXXXX/XXXXXXXXXXXXXXX.XXX or
any successor website the address of which is provided by the Custodian to the
Fund.
"DEPOSITORY" shall include (a) the Book-Entry System, (b) the
Depository Trust Company, (c) any other clearing agency or securities
depository registered with the Securities and Exchange Commission identified to
the Fund from time to time and (d) the respective successors and nominees of
the foregoing.
"FOREIGN DEPOSITORY" shall mean (a) Euroclear, (b) Clearstream
Banking, societe anonyme, (c) each Eligible Securities Depository as defined in
Rule 17f-7 under the '40 Act identified to the Fund from time to time and (d)
the respective successors and nominees of the foregoing.
"INSTRUCTIONS" shall mean Written Instructions, S.W.I.F.T., on-line
communications or other method or system, each as specified by the Custodian as
available for use in connection with the services hereunder.
"LOSSES" shall mean, collectively, losses, costs, expenses, damages,
liabilities and claims.
"MARKET DATA" shall mean pricing or other data related to Securities
and other assets. Market Data includes but is not limited to security
identifiers, valuations, bond ratings, classification data and other data
received from investment managers and others.
"NON-CUSTODY ASSETS" shall have the meaning set forth in Section 11.1.
"OPERATIONAL LOSSES" shall have the meaning set forth in Section 2.1.
"ORAL INSTRUCTIONS" shall mean instructions expressed in spoken words
received by the Custodian. Where the Custodian provides recorded lines for this
purpose, such instructions must be given using such lines.
"PERSON" or "PERSONS" shall mean any entity or individual.
"REPLACEMENT SUBCUSTODIAN" shall have the meaning set forth in Section
2.1.
"REQUIRED CARE" shall have the meaning set forth in Section 2.1.
"SECURITIES" shall include, without limitation, any common stock and
other equity securities, depository receipts, limited partnership and limited
liability company interests, bonds, debentures
2
EXECUTION
and other debt securities, notes or other obligations, and any instruments
representing rights to receive, purchase or subscribe for the same, or
representing any other rights or interests therein (whether represented by a
certificate or held in a Depository, a Foreign Depository or with a
Subcustodian or on the books of the issuer) and any non-cash distributions
thereto, that are acceptable to the Custodian.
"SERIES" shall mean the various portfolios, if any, of the Fund
listed on Schedule I hereto, and if none are listed references to Series shall
be references to the Fund.
"SHARES" shall have the meaning set forth in Section 6.1.
"SUBCUSTODIAN" shall mean a bank, trust or other financial
institution (other than a Foreign Depository) located outside the United States
and which is utilized by the Custodian or by a BNY Mellon Affiliate in
connection with the purchase, sale or custody of Securities or cash hereunder
and is identified to the Fund from time to time, and their respective
successors and assigns.
"TAX OBLIGATIONS" shall mean taxes, withholding, certification and
reporting requirements, claims for exemptions or refund, interest, penalties,
additions to tax and other related expenses.
"WRITTEN INSTRUCTIONS" shall mean written communications, including a
Certificate or a Certificate in the form of an electronic attachment attached
to and transmitted by electronic mail, or an electronic trading system received
by the Custodian by overnight delivery, postal services or facsimile or
electronic transmission.
1.2 ESTABLISHMENT OF ACCOUNT. (a) The Fund hereby appoints the
Custodian as the custodian of all Securities and cash at any time delivered to
the Custodian to be held under this Agreement. The Custodian hereby accepts
such appointment and agrees to establish and maintain one or more custody
accounts for each Series in which the Custodian will hold Securities and cash
for the receipt, safekeeping, and maintenance of all Securities and cash
delivered to and actually received by the Custodian or its Sub-Custodians for
the Fund, or otherwise delivered to and actually received by, the Custodian or
the Sub-Custodian from the Fund. Such accounts (each, an "Account," and
collectively, the "Accounts") shall be in the name of the Fund.
(b) The Custodian may from time to time establish on its books and
records such sub-accounts within each Account as the Fund and the Custodian may
agree upon (each a "Special Account"), and the Custodian shall reflect therein
such assets as the Fund may specify in Instructions.
(c) The Custodian may from time to time establish pursuant to a
written agreement with and for the benefit of a broker, dealer, future
commission merchant or other third party identified in Instructions such
accounts on such terms and conditions as the Fund and the Custodian shall
agree, and the Custodian shall transfer to such account such Securities and
cash as the Fund may specify in Instructions.
1.3 REPRESENTATIONS AND WARRANTIES. (a) The Fund hereby represents
and warrants, which representations and warranties shall be continuing and
shall be deemed to be reaffirmed upon each giving of Oral Instructions or
Instructions by the Fund, that:
3
EXECUTION
(i) It is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement and to perform its obligations
hereunder;
(ii) This Agreement has been duly authorized, executed and delivered
by the Fund, has been approved by a resolution of its board and constitutes a
valid and legally binding obligation of the Fund, enforceable in accordance
with its terms, and there is no statute, regulation, rule, order or judgment
binding on it, and no provision of its charter or by-laws, nor of any mortgage,
indenture, credit agreement or other contract binding on it or affecting its
property, which would prohibit its execution or performance of this Agreement;
(iii) It is conducting its business in substantial compliance with
all applicable laws and requirements, both state and federal, and has obtained
all regulatory licenses, approvals and consents necessary to carry on its
business as now conducted;
(iv) It will not use the services provided by the Custodian hereunder
in any manner that is, or will result in, a violation of any law, rule or
regulation applicable to the Fund;
(v) Its board or its foreign custody manager, as defined in Rule
17f-5 under the Investment Company Act of 1940, as amended (the "'40 Act"), has
determined that use of each Subcustodian (including any Replacement
Subcustodian) which the Custodian is authorized to utilize in accordance with
this Agreement satisfies the applicable requirements of the '40 Act and Rule
17f-5 thereunder;
(vi) The Fund has determined that the custody arrangements of each
Foreign Depository provide reasonable safeguards against the custody risks
associated with maintaining assets with such Foreign Depository within the
meaning of Rule 17f-7 under the '40 Act;
(vii) It is fully informed of the protections and risks associated
with various methods of transmitting Instructions and Oral Instructions to the
Custodian, shall safeguard and treat with reasonable care any user and
authorization codes, passwords and/or authentication keys, understands that
there may be more secure methods of transmitting or delivering the same than
the methods selected by it, agrees that the security procedures (if any) to be
followed in connection therewith provide a commercially reasonable degree of
protection in light of its particular needs and circumstances and acknowledges
and agrees that Instructions need not be reviewed by the Custodian, may
conclusively be presumed by the Custodian without inquiry to have been given by
person(s) duly authorized and may be acted upon as given;
(viii) It shall manage its borrowings, including, without limitation,
any advance or overdraft (including any day-light overdraft) in the Accounts,
so that the aggregate of its total borrowings for each Series does not exceed
the amount such Series is permitted to borrow under the '40 Act;
4
EXECUTION
(ix) Instructions or Oral Instructions given by it pursuant to this
Agreement shall at all times comply with the '40 Act and the Custodian acting
in accordance with such Instructions or Oral Instructions shall not constitute
a breach of the '40 Act;
(x) It shall impose and maintain restrictions on the destinations to
which cash may be disbursed by Instructions to ensure that each disbursement is
for a proper purpose; and
(xi) It has the right to make the pledge and grant the security
interest and security entitlement to the Custodian contained in Section 5
hereof, free of any right of redemption or prior claim of any other person or
entity, such pledge and such grants shall have a first priority subject to no
setoffs, counterclaims or other liens or grants prior to or on a parity
therewith, and it shall take such additional steps as the Custodian may
reasonably require to assure such priority.
(b) The Custodian hereby represents and warrants to the Fund that:
(i) it is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement, and to perform its obligations
hereunder;
(ii) all requisite proceedings have been taken to authorize
it to enter into and perform this Agreement;
(iii) this Agreement is a valid and binding obligation of
the Custodian enforceable against the Custodian in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency or other
similar laws of general application relating to or affecting the enforcement of
creditors' rights in general or by general principles of equity whether
considered in a proceeding at law or equity;
(iv) it has established policies and procedures reasonably
designed to prevent its violation of federal or state laws and regulations
applicable to it or its provision of services as contemplated hereunder;
(v) it has completed, obtained and performed all
registrations, filings, approvals, and authorizations, consents or examinations
required by any government or governmental authority to which it is subject, to
perform the services contemplated by this Agreement and will maintain the same
in effect for so long as this Agreement remains in effect;
(vi) it has put into place business continuity policies and
procedures reasonably designed to meet applicable regulatory requirements; and
(vii) its entering into and performance of this Agreement
shall not cause a material breach or be in material conflict with any other
agreement to which the Custodian is a party or by which it is bound or violate
any applicable law or regulation to which the Custodian is subject.
5
EXECUTION
1.4 DISTRIBUTIONS. The Custodian shall make distributions or
transfers out of an Account pursuant to Instructions. In making payments to
service providers pursuant to Instructions, the Fund acknowledges that the
Custodian is acting in an administrative or in a ministerial capacity, and not
as the payor, for tax information reporting and withholding purposes.
1.5 AUTHORIZED INSTRUCTIONS. The Custodian shall be entitled to rely
in good faith upon any Oral Instructions or Instructions actually received by
the Custodian and reasonably believed by the Custodian to be from an Authorized
Person ("Authorized Instructions"). Notwithstanding any other provision
included in this Agreement, Written Instructions relating to the disbursement
of cash of the Fund other than in connection with the purchase, sale or
settlement of Securities, shall be in the form of a Certificate. The Fund
agrees that an Authorized Person shall forward to the Custodian Instructions
confirming Oral Instructions by the close of business of the same day that such
Oral Instructions are given to the Custodian. The Fund agrees that the fact
Instructions confirming Oral Instructions are not received or that contrary
Instructions are received by the Custodian shall in no way affect the validity
or enforceability of transactions authorized by such Oral Instructions and
effected by the Custodian.
1.6 AUTHENTICATION. If the Custodian receives Instructions that
appear on their face to have been transmitted by an Authorized Person via (i)
facsimile or other electronic method that is not secure or (ii) secure
electronic transmission containing applicable authorization codes, passwords or
authentication keys, the Fund understands and agrees that the Custodian cannot
determine the identity of the actual sender of such Instructions and that the
Custodian shall be entitled to conclusively presume that such Instructions have
been sent by an Authorized Person. The Fund shall be responsible for ensuring
that only Authorized Persons transmit Instructions to the Custodian and that
all Authorized Persons safeguard and treat with extreme care applicable user
and authorization codes, passwords and authentication keys.
1.7 ON-LINE SYSTEMS. If an Authorized Person elects to transmit
Instructions through an on-line communication system offered by the Custodian,
the use thereof shall be subject to any terms and conditions contained in a
separate written agreement. If the Fund or an Authorized Person elects, with
the Custodian's prior consent, to transmit Instructions through an on-line
communications service owned or operated by a third party, the Fund agrees that
the Custodian shall not be responsible or liable for the reliability or
availability of any such service.
SECTION 2 -- CUSTODY SERVICES
2.1 HOLDING SECURITIES. (a) Subject to the terms hereof, the Fund
hereby authorizes the Custodian to hold any Securities in registered form in
the name of the Custodian or one of its nominees. Securities and cash held for
the Fund hereunder shall be segregated on the Custodian's books and records
from the Custodian's own property and the property of any other client. The
Custodian shall be entitled to utilize, subject to subsection (d) of this
Section 2.1, the Subcustodians, Depositories, and subject to subsection (e) of
this Section 2.1, Foreign Depositories in connection with its performance
hereunder. Securities and cash held through a Subcustodian shall be held
subject to the terms and conditions of the Custodian's or a BNY Mellon
Affiliate's agreements with such Subcustodian. Securities and cash deposited
by the Custodian in a Depository or Foreign Depository will be held subject to
the rules, terms and conditions of such entity. Subcustodians
6
EXECUTION
may be authorized to hold Securities in Depositories or Foreign Depositories in
which such Subcustodian participates. Unless otherwise required by local law
or practice or a particular subcustodian agreement, Securities deposited with
Subcustodians, Depositories or Foreign Depositories will be held in a
commingled account in the name of the Custodian or a BNY Mellon Affiliate for
the Fund. The Custodian shall identify on its books and records the Securities
and cash belonging to the Fund, whether held directly or indirectly through
Subcustodians, Depositories or Foreign Depositories. The Custodian shall,
directly or indirectly through Subcustodians, Depositories or Foreign
Depositories, endeavor, to the extent feasible, to hold Securities in the
country or other jurisdiction in which the principal trading market for such
Securities is located, where such Securities are to be presented for
cancellation and/or payment and/or registration or where such Securities are
acquired. The Custodian at any time may cease utilizing any Subcustodian
and/or may replace a Subcustodian with a different Subcustodian (a "Replacement
Subcustodian"). In the event the Custodian selects a Replacement Subcustodian,
the Custodian shall not utilize such Replacement Subcustodian until after the
Fund's board or foreign custody manager has determined that utilization of such
Replacement Subcustodian satisfies the requirements of the '40 Act and Rule
17f-5 thereunder.
(b) The Custodian shall exercise reasonable care in the selection or
retention, monitoring and continued use of a Subcustodian in light of
prevailing rules, terms, practices and procedures in the relevant market in
accordance with the provisions of section 17f-5 of the Investment Company Act
of 1940 ("Required Care"). The Custodian shall be liable for repayment to the
Fund of cash credited to an Account and cash credited to the Fund's or the
Custodian's cash account at a Subcustodian that the Custodian is not able to
recover from the Subcustodian (other than as a result of a Country Risk Event).
With respect to any Losses incurred by the Fund as a result of an act or the
failure to act by any Subcustodian ("Operational Losses"), the Custodian shall
be liable for: (i) Operational Losses with respect to Securities or cash held
by the Custodian with or through a BNY Mellon Affiliate to the extent the
Custodian would be liable under this Agreement if the applicable act or failure
to act was that of the Custodian; and (ii) Operational Losses with respect to
Securities or cash held by the Custodian with or through a Subcustodian (other
than a BNY Mellon Affiliate) to the extent that such Operational Losses were
directly caused by failure on the part of the Custodian to exercise Required
Care; provided that in no event shall the Custodian have any liability for
Operational Losses arising out of or relating to a Country Risk Event. With
respect to all other Operational Losses not covered by clauses (i) and (ii)
(including the proviso) above, the Custodian shall take appropriate action to
recover such Operational Losses from the applicable Subcustodian and the
Custodian's sole liability shall be limited to amounts recovered from such
Subcustodian (exclusive of costs and expenses incurred by the Custodian).
(c) Unless the Custodian has received Instructions to the contrary,
the Custodian shall hold Securities indirectly through a Subcustodian only if
(i) the Securities are not subject to any right, charge, security interest,
lien or claim of any kind in favor of such Subcustodian or its creditors or
operators, including a receiver or trustee in bankruptcy or similar authority,
except for a claim of payment for the safe custody or administration of
Securities on behalf of the Fund by such Subcustodian and (ii) beneficial
ownership of the Securities is freely transferable without the payment of money
or value other than for safe custody or administration.
7
EXECUTION
(d) With respect to each Depository, the Custodian (i) shall exercise
due care in accordance with reasonable commercial standards in discharging its
duties as a securities intermediary to obtain and thereafter maintain
Securities or financial assets deposited or held in such Depository and (ii)
will provide, promptly upon request by the Fund, such reports as are available
concerning the internal accounting controls and financial strength of the
Custodian.
(e) In connection with Rule 17f-7 and with respect to each Foreign
Depository, the Custodian shall exercise reasonable care, prudence and
diligence (i) to provide the Fund, with an analysis of the custody risks
associated with maintaining assets with the Foreign Depository and (ii) to
monitor such custody risks on a continuing basis and promptly notify the Fund
of any material change in such risks. The Fund acknowledges and agrees that
such analysis and monitoring shall be made on the basis of, and limited by,
information gathered from Subcustodians or through publicly available
information otherwise obtained by the Custodian, and shall not include any
evaluation of Country Risk Events. The Custodian shall withdraw the Fund's
assets from a Foreign Depository as soon as reasonably practicable if the
Foreign Depository no longer meets the requirements of this Agreement.
2.2 DEPOSITORIES. The Custodian shall have no liability whatsoever
for the action or inaction of a Depository or a Foreign Depository or for any
Losses resulting from the maintenance of assets with a Depository or a Foreign
Depository. Notwithstanding the foregoing sentence, the Custodian shall be
liable for repayment to the Fund of cash credited to the Fund's, the
Custodian's or a Subcustodian's account at a Depository or a Foreign Depository
that the Custodian is not able to recover from the Depository or Foreign
Depository (other than as a result of a Country Risk Event).
2.3 AGENTS. The Custodian may appoint agents, including BNY Mellon
Affiliates, on such terms and conditions as it deems appropriate to perform its
services hereunder. Except as otherwise provided herein, no such appointment
shall discharge the Custodian from its obligations hereunder.
2.4 CUSTODIAN ACTIONS WITHOUT DIRECTION. With respect to Securities
held hereunder, the Custodian shall:
(i) Receive all eligible income, distributions and other
payments due to the Accounts;
(ii) Carry out any exchanges of Securities or other
corporate actions not requiring discretionary decisions;
(iii) Facilitate access by the Fund or its designee to
ballots or online systems to assist in the voting of proxies received by the
Custodian in its capacity as custodian for eligible positions of Securities
held in the Accounts (excluding bankruptcy matters);
(iv) Forward to the Fund or its designee information (or
summaries of information) that the Custodian receives in its capacity as
custodian from Depositories or Subcustodians concerning Securities in the
Accounts (excluding bankruptcy matters);
8
EXECUTION
(v) Forward to the Fund or its designee an initial notice
of bankruptcy cases relating to Securities held in the Accounts and a notice of
any required action related to such bankruptcy cases as may be received by the
Custodian in its capacity as custodian. No further action or notification
related to the bankruptcy case shall be required;
(vi) Endorse for collection checks, drafts or other
negotiable instruments;
(vii) Execute and deliver, solely in its custodial capacity,
certificates, documents or instruments incidental to the Custodian's performance
under this Agreement;
(viii) Make available to the Fund or its designee notices
and other material relating to class actions in which the Fund may be eligible
to participate as may be received by the Custodian.
2.5 CUSTODIAN ACTIONS WITH DIRECTION. The Custodian shall take the
following actions in the administration of the Accounts only pursuant to
Authorized Instructions:
(i) Settle purchases and sales of Securities and process
other transactions, including free receipts and deliveries to a broker, dealer,
future commission merchant or other third party specified in Instructions;
(ii) Take actions necessary to settle transactions in
connection with futures or options contracts, short-selling programs, foreign
exchange or foreign exchange contracts, swaps and other derivative investments;
and
(iii) Deliver Securities and cash in an Account if an
Authorized Person advises the Custodian that the Fund has entered into a
separate securities lending agreement, provided that the Fund executes such
agreements as the Custodian may require in connection with such arrangements.
2.6 FOREIGN EXCHANGE TRANSACTIONS. (a) For the purpose of settling
Securities and foreign exchange transactions, the Fund shall provide the
Custodian with sufficient immediately available funds for all transactions by
such time and date as conditions in the relevant market dictate. As used
herein, "sufficient immediately available funds" shall mean either (i)
sufficient cash denominated in United States dollars to purchase the necessary
foreign currency or (ii) sufficient applicable foreign currency, to settle the
transaction. The Custodian shall provide the Fund with immediately available
funds each day which result from the actual settlement of all sale
transactions, based upon advices received by the Custodian from Subcustodians,
Depositories and Foreign Depositories. Such funds shall be in United States
dollars or such other currency as the Fund may specify to the Custodian.
(b) Any foreign exchange transaction effected by the Custodian in
connection with this Agreement may be entered with the Custodian or a BNY
Mellon Affiliate acting as a principal or otherwise through customary channels.
The Fund may issue standing Instructions with respect to foreign exchange
transactions, but the Custodian may establish rules or limitations concerning
any foreign exchange facility made available to the Fund. Such rules and
limitations shall be made available to the Fund as promptly as practicable.
9
EXECUTION
SECTION 3 -- CORPORATE ACTIONS
3.1 CUSTODIAN NOTIFICATION. The Custodian shall notify the Fund or
its designee of rights or discretionary corporate actions as promptly as
practicable under the circumstances, provided that the Custodian in its
capacity as custodian has actually received notice of such right or
discretionary corporate action from the relevant Subcustodian or Depository.
Without actual receipt of such notice by the Custodian in its capacity as
custodian the Custodian shall have no liability for failing to so notify the
Fund.
3.2 DIRECTION. Whenever there are voluntary rights that may be
exercised or alternate courses of action that may be taken by reason of the
Fund's ownership of Securities, the Fund or its designee shall be responsible
for making any decisions relating thereto and for directing the Custodian to
act. In order for the Custodian to act, it must receive Instructions using the
Custodian generated form or clearly marked as instructions for the decision at
the Custodian's offices addressed as the Custodian may from time to time
request, by such reasonable time as the Custodian shall advise the Fund or its
designee in advance. If the Custodian does not receive such Instructions by
such deadline, the Custodian shall not be liable for failure to take any action
relating to or to exercise any rights conferred by such Securities.
3.3 VOTING RIGHTS. All voting rights with respect to Securities,
however registered, shall be exercised by the Fund or its designee. The
Custodian will make available to the Fund proxy voting services upon the
request of, and for the jurisdictions selected by, the Fund in accordance with
terms and conditions to be mutually agreed upon by the Custodian and the Fund.
3.4 PARTIAL REDEMPTIONS, PAYMENTS, ETC. The Custodian shall promptly
advise the Fund or its designee upon its notification in its capacity as
custodian of a partial redemption, partial payment or other action with respect
to a Security affecting fewer than all such Securities held within an Account.
If the Custodian or any Subcustodian, Depository or Foreign Depository holds
any Securities affected by one of the events described, the Custodian,
Subcustodian, Depository or Foreign Depository may select the Securities to
participate in such partial redemption, partial payment or other action in any
non-discriminatory manner that it customarily uses to make such selection.
SECTION 4 -- SETTLEMENT OF TRADES
4.1 PAYMENTS. Promptly after each purchase or sale of Securities by
the Fund, an Authorized Person shall deliver to the Custodian Instructions
specifying all information necessary for the Custodian to settle such purchase
or sale. For the purpose of settling purchases of Securities, the Fund shall
provide the Custodian with sufficient immediately available funds for all such
transactions by such time and date as conditions in the relevant market
dictate.
4.2 CONTRACTUAL SETTLEMENT AND INCOME. The Custodian may, as a
matter of bookkeeping convenience, credit an Account with the proceeds from the
sale, redemption or other disposition of Securities or interest, dividends or
other distributions payable on Securities prior to its actual receipt of final
payment therefor. All such credits shall be conditional until the Custodian's
actual receipt of final payment and may be reversed by the Custodian to the
extent that final
10
EXECUTION
payment is not received. The Custodian shall notify the Fund as promptly as
practicable under the circumstances of any such reversal. Payment with respect
to a transaction will not be "final" until the Custodian shall have received
immediately available funds that under applicable local law, rule and practice
are irreversible and not subject to any security interest, levy or other
encumbrance, and that are specifically applicable to such transaction.
4.3 TRADE SETTLEMENT. Transactions will be settled using practices
customary in the jurisdiction or market where the transaction occurs. The Fund
understands that when the Custodian is instructed to deliver Securities against
payment, delivery of such Securities and receipt of payment therefor may not be
completed simultaneously. The Fund assumes full responsibility for all risks
involved in connection with the Custodian's delivery of Securities pursuant to
Authorized Instructions in accordance with local market practice. The Custodian
shall have no responsibility for non-receipt of payment or late payment, or
non-delivery of Securities or late delivery of Securities ("Settlement
Failure"), except to the extent that a Settlement Failure directly resulted
from the Custodian's breach of its Standard of Care in performing its duties
under this Agreement.
SECTION 5 -- DEPOSITS AND ADVANCES
5.1 DEPOSITS. The Custodian may hold cash in Accounts or may arrange
to have cash held by a BNY Mellon Affiliate or Subcustodian, or with a
Depository or Foreign Depository. Where cash is on deposit with the Custodian,
a Subcustodian or a BNY Mellon Affiliate, it will be subject to the terms of
this Agreement and such deposit terms and conditions as may be issued by the
Custodian to the Fund (on behalf of itself or a BNY Mellon Affiliate or
Subcustodian) from time to time, including rates of interest and deposit
account access.
5.2 SWEEP AND FLOAT. Cash may be swept as directed by the Fund or
its investment adviser to investment vehicles offered by the Custodian or to
other investment vehicles. Cash may be uninvested when it is received or
reconciled to an Account after the deadline to be swept into a target vehicle,
or when held for short periods of time related to transaction settlements. The
Fund acknowledges that, as part of the Custodian's compensation, the Custodian
will earn interest on cash balances held by the Custodian, including
disbursement balances and balances arising from purchase and sale transactions,
as disclosed in the Custodian's float policy.
5.3 OVERDRAFTS AND INDEBTEDNESS. The Custodian may, in its sole
discretion, advance funds in any currency hereunder. If an overdraft occurs in
an Account (including, without limitation, overdrafts incurred in connection
with the settlement of securities transactions, funds transfers or foreign
exchange transactions) or if the Fund is for any other reason indebted to the
Custodian, the Fund agrees to repay the Custodian on demand upon becoming aware
of the amount of the advance, overdraft or indebtedness, plus accrued interest
at a rate then charged by the Custodian to its institutional custody clients in
the relevant currency.
5.4 SECURING REPAYMENT. In order to secure repayment of the Fund's
obligations to the Custodian, the Fund hereby pledges and grants to the
Custodian and agrees the Custodian shall have to the maximum extent permitted
by law, a continuing first lien and security interest in, and right of setoff
against: (a) all of the Fund's right, title and interest in and to all Accounts
in the Fund's name and the Securities, cash and other property now or hereafter
held in such Accounts (including
11
EXECUTION
proceeds thereof) and (b) any other property at any time held by the Custodian
in its capacity as custodian for the Fund. The Fund represents, warrants and
covenants that it owns the Securities in the Accounts free and clear of all
liens, claims and security interests, and that the first lien and security
interest granted herein shall be subject to no setoffs, counterclaims or other
liens prior to or on a parity with it in favor of any other party (other than
specific liens granted preferred status by statute). The Fund shall take any
additional steps required to assure the Custodian of such priority security
interest, including notifying third parties or obtaining their consent. The
Custodian shall be entitled to collect from the Accounts sufficient cash for
reimbursement, and if such cash is insufficient, to sell the Securities in the
Accounts to the extent necessary to obtain reimbursement. In this regard, the
Custodian shall be entitled to all the rights and remedies of a pledgee and
secured creditor under applicable laws, rules and regulations as then in
effect.
5.5 SETOFF. The Custodian has the right to debit any cash in the
Accounts for any amount payable by the Fund in connection with any and all
obligations of the Fund to the Custodian relating to or arising under this
Agreement. In addition to the rights of the Custodian under applicable law and
other agreements, at any time when the Fund shall not have honored any and all
of its obligations to the Custodian, the Custodian shall have the right to
retain or set-off against such obligations of the Fund any cash the Custodian
or a BNY Mellon Affiliate may directly or indirectly hold for the Fund, and any
obligations (whether or not matured) that the Custodian or a BNY Mellon
Affiliate may have to the Fund in any currency. Custodian shall endeavor to
provide notice in the event it exercises its setoff rights set forth in this
Section 5.5, it being understood that Custodian's failure or inability to
provide such notice shall not affect or limit Custodian's rights set forth in
this Agreement. Any such asset of, or obligation to, the Fund may be
transferred to the Custodian and any BNY Mellon Affiliate in order to effect
the above rights.
5.6 BANK BORROWINGS. If the Fund borrows money from any bank
(including the Custodian if the borrowing is pursuant to a separate agreement)
for investment or for temporary or emergency purposes using Securities held by
the Custodian hereunder as collateral for such borrowings, the Fund shall
deliver to the Custodian Instructions specifying with respect to each such
borrowing: (a) the Series to which such borrowing relates, (b) the name of the
bank, (c) the amount of the borrowing, (d) the time and date, if known, on
which the loan is to be entered into, (e) the total amount payable to the Fund
on the borrowing date, (f) the Securities to be delivered as collateral for
such loan, including the name of the issuer, the title and the number of shares
or the principal amount of any particular Securities and (g) a statement
specifying whether such loan is for investment purposes or for temporary or
emergency purposes and that such loan is in conformance with the '40 Act and
the Fund's prospectus. The Custodian shall deliver on the borrowing date
specified in Instructions the specified collateral against payment by the
lending bank of the total amount of the loan payable, provided that the same
conforms to the total amount payable as set forth in the Instructions. The
Custodian may, at the option of the lending bank, keep such collateral in its
possession, but such collateral shall be subject to all rights therein given
the lending bank by virtue of any promissory note or loan agreement. The
Custodian shall deliver such Securities as additional collateral as may be
specified in Instructions to collateralize further any transaction described in
this Section 5.6. The Fund shall cause all Securities released from collateral
status to be returned directly to the Custodian, and the Custodian shall
receive from time to time such return of collateral as may be tendered to it.
In the event that the Fund fails to specify in Instructions the Series, the
name of the issuer of the Securities to be delivered as collateral by the
Custodian, or the
12
EXECUTION
title and number of shares or the principal amount of any particular Securities
to be delivered as collateral by the Custodian, the Custodian shall not be
under any obligation to deliver any Securities.
SECTION 6 -- SALE AND REDEMPTION OF SHARES
6.1 SALE OF SHARES. Whenever the Fund shall sell any shares issued
by the Fund ("Shares") it shall deliver to the Custodian Instructions
specifying the amount of cash and/or Securities to be received by the Custodian
for the sale of such Shares and specifically allocated to an Account for
Series. Upon receipt of such cash, the Custodian shall credit such cash to an
Account in the name of the Funds for which such cash was received.
6.2 REDEMPTION OF SHARES. Except as provided hereinafter, whenever
the Fund desires the Custodian to make payment out of the cash held by the
Custodian hereunder in connection with a redemption of any Shares, it shall
furnish to the Custodian Instructions specifying the total amount to be paid
for such Shares. The Custodian shall make payment of such total amount to the
transfer agent specified in such Instructions out of the cash held in an
Account of the Fund.
6.3 CHECK REDEMPTIONS. Notwithstanding the above provisions regarding
the redemption of any Shares, whenever any Shares are redeemed pursuant to any
check redemption privilege which may from time to time be offered by the Fund,
the Custodian, unless otherwise instructed by Instructions, shall, upon
presentment of such check, charge the amount thereof against the cash held in
the Account of the Series of the Shares being redeemed, provided, that if the
Fund or its agent timely advises the Custodian that such check is not to be
honored, the Custodian shall return such check unpaid.
SECTION 7 -- PAYMENT OF DIVIDENDS AND DISTRIBUTIONS
7.1 DETERMINATION TO PAY. Whenever the Fund shall determine to pay a
dividend or distribution on Shares it shall furnish to the Custodian
Instructions setting forth with respect to the Fund specified therein the date
of the declaration of such dividend or distribution, the total amount payable
and the payment date.
7.2 PAYMENT. Upon the payment date specified in such Instructions,
the Custodian shall pay out of the cash held for the account of the Fund the
total amount payable to the dividend agent of the Fund specified therein.
SECTION 8 -- TAXES, REPORTS AND RECORDS
8.1 TAX OBLIGATIONS. The Fund shall be liable for all taxes,
assessments, duties and other governmental charges, including interest and
penalties, with respect to any cash and Securities held on behalf of the Fund
and any transaction related thereto. To the extent that the Custodian has
received relevant and necessary information with respect to an Account, the
Custodian shall perform the following services with respect to Tax
Obligations:
13
EXECUTION
(i) The Custodian shall, upon receipt of sufficient
information, file claims for exemptions or refunds with respect to withheld
foreign (non-United States) taxes in instances in which such claims are
appropriate;
(ii) The Custodian shall withhold appropriate amounts, as
required by United States tax laws, with respect to amounts received on behalf
of nonresident aliens upon receipt of Instructions; and
(iii) The Custodian shall provide to the Fund such
information received by the Custodian (in its capacity as custodian) that
could, in the Custodian's reasonable belief, assist the Fund or its designee in
the submission of any reports or returns with respect to Tax Obligations. An
Authorized Person shall inform the Custodian in writing as to which party or
parties shall receive information from the Custodian.
8.2 PRICING AND OTHER DATA. In providing Market Data related to the
Accounts in connection with this Agreement, the Custodian is authorized to use
Data Providers. The Custodian may follow Authorized Instructions in providing
pricing or other Market Data, even if such instructions direct the Custodian to
override its usual procedures and Market Data sources. The Custodian shall be
entitled to rely without inquiry on all Market Data (and all Authorized
Instructions related to Market Data) provided to it, and the Custodian shall
not be liable for any Losses incurred as a result of errors or omissions with
respect to any Market Data utilized by the Custodian or the Fund hereunder.
The Fund acknowledges that certain pricing or valuation information may be
based on calculated amounts rather than actual market transactions and may not
reflect actual market values, and that the variance between such calculated
amounts and actual market values may be material. The Custodian shall not be
required to inquire into the pricing of any Securities or other assets even
though the Custodian may receive different prices for the same Securities or
assets. Market Data may be the intellectual property of the Data Providers,
which may impose additional terms and conditions upon the Fund's use of the
Market Data. The additional terms and conditions can be found in the Data Terms
Website. The Fund agrees to those terms as they are posted in the Data Terms
Website from time to time. Certain Data Providers may not permit the Fund's
directed price to be used. Performance measurement and analytic services may
use different data sources than those used by the Custodian to provide Market
Data for an Account, with the result that different prices and other Market
Data may apply.
8.3 STATEMENTS AND REPORTS. The Custodian shall make available to
the Fund a monthly report (or a report for such other time period as the
parties may agree from time to time) of all transfers to or from the Accounts
and a statement of all holdings in the Accounts as of the last Business Day of
each month (or as of such other day as the parties may agree from time to
time). The Fund may elect to receive certain information electronically through
the Internet to an email address specified by it for such purpose. By electing
to use the Internet for this purpose, the Fund acknowledges that such
transmissions are not encrypted and therefore are not secure. The Fund further
acknowledges that there are other risks inherent in communicating through the
Internet such as the possibility of virus contamination and disruptions in
service, and agrees that the Custodian shall not be responsible for any Losses
suffered or incurred by the Fund or any person claiming by or through the Fund
as a result of the use of such methods.
14
EXECUTION
8.4 REVIEW OF REPORTS. If, within ninety (90) days after the
Custodian makes available to the Fund a statement with respect to the Accounts,
the Fund has not given the Custodian written notice of any exception or
objection thereto, the statement shall be deemed to have been approved, and in
such case, the Custodian shall not be liable for any claims concerning such
statement.
8.5 BOOKS AND RECORDS. The books and records pertaining to the Fund
which are in possession of the Custodian shall be the property of the Fund.
Such books and records shall be prepared and maintained as required by the '40
Act and the rules thereunder. The Fund, or its authorized representatives,
shall have access to such books and records during the Custodian's normal
business hours. Upon the reasonable request of the Fund, copies of any such
books and records shall be provided by the Custodian to the Fund or its
authorized representative. Upon the reasonable request of the Fund, the
Custodian shall provide in hard copy or on computer disc any records included
in any such delivery which are maintained by the Custodian on a computer disc,
or are similarly maintained.
8.6 REQUIRED DISCLOSURE. With respect to Securities issued in the
United States, the Shareholder Communications Act of 1985 (the "Act") requires
the Custodian to disclose to issuers, upon their request, the name, address and
securities position of the Custodian's clients who are "beneficial owners" (as
defined in the Act) of the issuer's Securities, unless the beneficial owner
objects to such disclosure. The Act defines a "beneficial owner" as any person
who has or shares the power to vote a security (pursuant to an agreement or
otherwise) or who directs the voting of a security. The Fund represents that it
is the beneficial owner of the Securities. As beneficial owner it has
designated below whether it objects to the disclosure of its name, address and
securities position to any United States issuer that requests such information
pursuant to the Act for the specific purpose of direct communications between
such issuer and the Fund.
With respect to Securities issued outside the United States, the
Custodian shall disclose information required by law, regulation, rules of a
stock exchange or organizational documents of an issuer. The Custodian is also
authorized to supply any information regarding the Accounts that is required or
requested by governmental or regulatory authorities or by any law, regulation
or rules now or hereafter in effect. The Fund agrees to supply the Custodian
with any required information if it is not otherwise reasonably available to
the Custodian.
Pursuant to this Section 8.6, as Beneficial Owner:
[ ] The Fund OBJECTS to disclosure
[ ] The Fund DOES NOT OBJECT to disclosure
IF NO BOX IS CHECKED, THE CUSTODIAN SHALL RELEASE SUCH INFORMATION UNTIL IT
RECEIVES A CONTRARY INSTRUCTION FROM THE FUND.]
8.7 TOOLS. From time to time the Custodian may make available to the
Fund or its agent(s) certain computer programs, products, services, reports or
information (including, without limitation, information obtained by the
Custodian from third parties and information reflecting the Custodian's input,
evaluation and interpretation) (collectively, "Tools"). Tools may allow the
Fund or its agent(s) to perform certain analytic, accounting, compliance,
reconciliation and other
15
EXECUTION
functions with respect to an Account. By way of example, Tools may assist the
Fund or its agent(s) in analyzing the performance of investment advisers
appointed by the Fund, determining on a post-trade basis whether transactions
for an Account comply with the Fund's investment guidelines, evaluating assets
at risk and performing account reconciliations. Tools, as well as practices and
processes developed by or for the Custodian in connection with the services
provided to the Fund, (1) may be used only for the Fund's internal purposes,
and may not be resold, redistributed or otherwise made available to third
parties and (2) are the sole and exclusive property of the Custodian (and its
suppliers if applicable). The Fund may not reverse engineer or decompile any
computer programs provided by the Custodian comprising, or provided as a part
of, any Tools. Information supplied by third parties may be incorrect or
incomplete, and any information, reports, analytics or other services supplied
by the Custodian that rely on information from third parties may also be
incorrect or incomplete. All Tools are provided "AS IS", whether or not they
are modified to meet specific needs of the Fund and regardless of whether the
Custodian is compensated by the Fund for providing such Tools. THE CUSTODIAN
DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
TOOLS, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE,
NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. ANYTHING IN THIS
AGREEMENT TO THE CONTRARY NOTWITHSTANDING, THE CUSTODIAN AND ITS SUPPLIERS
SHALL NOT BE LIABLE FOR ANY LOSS, COST, EXPENSE, DAMAGE, LIABILITY OR CLAIM
SUFFERED OR INCURRED BY THE FUND, ITS AGENT(S) OR ANY OTHER PERSON AS A RESULT
OF USE OF, INABILITY TO USE OR RELIANCE UPON ANY TOOLS.
SECTION 9 -- PROVISIONS REGARDING THE CUSTODIAN
9.1 STANDARD OF CARE. In performing its duties under this Agreement,
the Custodian shall exercise the standard of care and diligence that a
professional custodian would observe in these affairs (the "Standard of Care").
For the avoidance of doubt, the Custodian's negligence, fraud, bad faith,
recklessness or willful misconduct shall constitute a breach of the Standard of
Care.
9.2 LIMITATION OF DUTIES AND LIABILITY. (a) Notwithstanding anything
contained elsewhere in this Agreement, the Custodian's liability hereunder is
limited as follows:
(i) The duties of the Custodian shall only be those
specifically undertaken pursuant to this Agreement and shall be subject to such
other limits on liability as are set out herein;
(ii) The Custodian shall not be liable for any Losses except
to the extent that such Losses directly arise out of the Custodian's failure to
discharge its duties hereunder in accordance with its Standard of Care;
(iii) The Custodian shall not be responsible for the title,
validity or genuineness of any Securities or evidence of title thereto received
by it or delivered by it pursuant to this Agreement or for Securities held
hereunder being freely transferable or deliverable without encumbrance in any
relevant market;
16
EXECUTION
(iv) The Custodian shall not be responsible for the failure
to receive payment of, or the late payment of, income or other payments due to
an Account;
(v) The Custodian shall have no duty to take any action to
collect any amount payable on Securities in default or if payment is refused
after due demand and presentment;
(vi) The Custodian may obtain the advice of counsel and
shall be fully protected with respect to anything done or omitted by it in good
faith in conformity with such advice;
(vii) The Custodian shall have no duty or responsibility to
inquire into, make recommendations, supervise or determine the suitability of
any transactions affecting any Account and shall have no liability with respect
to the Fund's or an Authorized Person's decision to invest in Securities or to
hold cash in any currency;
(viii) The Custodian shall have no responsibility if the
rules or procedures imposed by Depositories or Foreign Depositories, exchange
controls, asset freezes or other laws, rules, regulations or orders at any time
prohibit or impose burdens or costs on the transfer of Securities or cash to, by
or for the account of the Fund; and
(ix) The Custodian shall have no liability for any Losses
arising from the insolvency of any Person, including but not limited to a
Subcustodian, Depository, Foreign Depository, broker, bank or counterparty to
the settlement of a transaction or a foreign exchange transaction, except as
provided in Section 2.1(b) and Section 2.2.
(b) Notwithstanding any other provision of this Agreement, the
Custodian accepts the same responsibility for the acts and omissions of a BNY
Mellon Affiliate as if such acts or omissions were the Custodian's as the same
are governed by this Agreement and subject to the same standards of care and
conduct as provided herein.
9.3 LOSSES. Under no circumstances shall either party to this
Agreement be liable to the other party or any third party for indirect,
consequential or special damages, or lost profits or loss of business, arising
in connection with this Agreement, even if the such party has been advised of
the possibility of such damages.
9.4 GAINS. Where an error or omission has occurred under this
Agreement, the Custodian may take such remedial action as it considers
appropriate under the circumstances and, provided that the Fund is put in the
same or equivalent position as it would have been in if the error or omission
had not occurred, any favorable consequences of the Custodian's remedial action
shall be solely for the account of Custodian, without any duty to report to the
Fund any loss assumed or benefit received by it as a result of the Custodian
taking such action.
9.5 CENTRALIZED FUNCTIONS. The Bank of New York Mellon Corporation
is a global financial organization that provides services to clients through
its affiliates and subsidiaries in multiple jurisdictions (the "BNY Mellon
Group"). The BNY Mellon Group may centralize functions including audit,
accounting, risk, legal, compliance, sales, administration, product
communication, relationship management, storage, compilation and analysis of
customer-related data, and other functions (the "Centralized Functions") in one
or more affiliates, subsidiaries and
17
EXECUTION
third-party service providers. Solely in connection with the Centralized
Functions, (i) the Fund consents to the disclosure of and authorizes the
Custodian to disclose information regarding the Fund and the Accounts
("Customer-Related Data") to the BNY Mellon Group and to its third-party
service providers who are subject to confidentiality obligations with respect
to such information and (ii) the Custodian may store the names and business
contact information of the Fund's employees and representatives on the systems
or in the records of the BNY Mellon Group or its service providers. The BNY
Mellon Group may aggregate Customer-Related Data with other data collected
and/or calculated by the BNY Mellon Group, and notwithstanding anything in this
Agreement to the contrary the BNY Mellon Group will own all such aggregated
data, provided that the BNY Mellon Group shall not distribute the aggregated
data in a format that identifies Customer-Related Data with the Fund. The Fund
confirms that it is authorized to consent to the foregoing and that the
disclosure and storage of information in connection with the Centralized
Functions does not violate any relevant data protection legislation.
9.6 FORCE MAJEURE. Notwithstanding anything in this Agreement to the
contrary, the Custodian shall not be responsible or liable for any failure to
perform under this Agreement or for any Losses to any Account resulting from
any event beyond the reasonable control of the Custodian.
9.7 FEES. The Fund shall pay to the Custodian the fees and charges
as may be specifically agreed upon in writing between the parties from time to
time. The Fund shall also reimburse the Custodian for reasonable out-of-pocket
expenses that are a normal incident of the services.
BUSINESS CONTINUITY. Custodian shall maintain a business continuity
and disaster recovery plan (the "Plan") and execute such Plan in the event of
any unplanned or unanticipated interruption of services. The Plan shall be
designed to enable Custodian to perform its obligations under the Agreement
with minimal disruptions or delays in connection with the interruption or
suspension of services. The Plan takes into consideration the provision of any
critical services and shall include a secure back-up site containing all
hardware, software, communications equipment, and current copies of data and
files necessary to perform Custodian's obligations under the Agreement. The
Plan shall be designed to restore business-critical activities within the time
frames required by Custodian's applicable regulators. Custodian shall
exercise, review, and update the Plan in accordance with industry standards and
applicable legal requirements. Custodian shall use commercially reasonable
efforts to resume performance of the duties Custodian is obligated to perform
under this Agreement.
9.8 INDEMNIFICATION. (a) The Fund shall indemnify and hold harmless
the Custodian from and against all Losses, including reasonable counsel fees
and expenses in third party suits and in a successful defense of claims
asserted by the Fund, relating to or arising out of the performance of the
Custodian's obligations under this Agreement, except to the extent resulting
from the Custodian's failure to discharge its duties hereunder in accordance
with its Standard of Care. This provision shall survive the termination of this
Agreement.
(b) In the event a claim is asserted against the Fund arising out of
or in connection with any action or inaction by the Custodian in performing its
duties (a "Claim"), and to the extent the Fund
18
EXECUTION
asserts and is successful in a related Claim against the Custodian in which it
is determined by a court or an arbiter of competent jurisdiction that the
Custodian failed to discharge its duties in accordance with the Standard of
Care, then the Custodian shall indemnify the Fund for any and all costs,
expenses, direct damages, liabilities or claims (including reasonable
attorneys' and accountants' fees) sustained or incurred as a result of such
Claim.
SECTION 10 -- AMENDMENT; TERMINATION; ASSIGNMENT
10.1 AMENDMENT. This Agreement may be amended only by written
agreement between the Fund and the Custodian.
10.2 TERMINATION. Either party may terminate this Agreement by
giving to the other party a notice in writing specifying the date of such
termination, which shall be not less than one-hundred-twenty (120) days after
the date of such notice. In addition, each party may terminate this Agreement
at any time for cause, which is a material breach of each party's obligations
under this Agreement and such breach has remained uncured for a period of
thirty (30) days after the receipt of written notice specifying such breach in
reasonable detail from such party. Each party may terminate this Agreement
immediately and without prior notice to the other party in the event of any
bankruptcy, insolvency or other reorganization relating to the such party or if
any receiver is appointed for all or substantially all of the such party's
assets or upon the happening of any like event. Upon termination hereof, the
Fund shall pay to the Custodian such compensation as may be due to the
Custodian as of the date of termination, and shall likewise reimburse the
Custodian for other amounts payable or reimbursable to the Custodian hereunder
as of the date of termination. The Custodian shall follow such reasonable
Instructions concerning the transfer of custody of records, Securities and
other items as the Fund shall give; provided that (a) the Custodian shall have
no liability for shipping and insurance costs associated therewith and (b) full
payment shall have been made to the Custodian of its compensation, costs,
expenses and other amounts to which it is entitled hereunder as of the date of
termination. If any Securities or cash remain in any Account after termination,
the Custodian may deliver to the Fund such Securities and cash. Provisions
authorizing the disclosure of information shall survive termination of this
Agreement. Except as otherwise provided herein, all obligations of the parties
to each other hereunder shall cease upon termination of this Agreement.
10.3 SUCCESSORS AND ASSIGNS. Neither the Fund nor the Custodian may
assign, novate, transfer or charge any of its rights or obligations under this
Agreement without the prior written consent of the other party, except that,
subject as provided at 10.4 below, the Custodian may, upon ten (10) Business
Days' prior written notice to the Fund, assign its rights and obligations under
this Agreement to any BNY Mellon Affiliate or to any entity that shall by
merger, consolidation, purchase or otherwise succeed to substantially all the
institutional custody business of the Custodian, provided that any such BNY
Mellon Affiliate or other entity is of substantially similar credit standing to
the Custodian immediately prior to such assignment, novation or transfer and
such entity shall, upon such succession and without any appointment or other
action by the Fund, be and become successor custodian hereunder. The Custodian
agrees to provide prompt notice of such successor custodian to the Fund. This
Agreement shall subject as provided at 10.4 below, be binding upon, and inure to
the benefit of, the Fund and the Custodian and their respective successors and
permitted assigns.
19
EXECUTION
10.4 If the Fund determines that the BNY Mellon Affiliate or other
entity to which the Custodian assigns or novates its rights and/or obligations
in accordance with 10.3 above is not of substantially similar credit standing to
the Custodian, the Fund may terminate this Agreement upon ten (10) Business
Days' prior written notice to the Custodian.
SECTION 11 -- ADDITIONAL PROVISIONS
11.1 NON-CUSTODY ASSETS. As an accommodation to the Fund, the
Custodian may provide consolidated recordkeeping services pursuant to which the
Custodian reflects on statements securities and other assets not held by, or
under the control of, the Custodian ("Non-Custody Assets"). Non-Custody Assets
shall be designated on the Custodian's books as "shares not held" or by other
similar characterization. The Fund acknowledges and agrees that it shall have
no security entitlement against the Custodian with respect to Non-Custody
Assets, that the Custodian shall rely, without independent verification, on
information provided by the Fund, its designee or the entity having custody
regarding Non-Custody Assets (including but not limited to positions and market
valuations), and that the Custodian shall have no responsibility whatsoever
with respect to Non-Custody Assets or the accuracy of any information
maintained on the Custodian's books or set forth on account statements
concerning Non-Custody Assets.
11.2 APPROPRIATE ACTION. The Custodian is hereby authorized and
empowered, in its sole discretion, to take any action with respect to an
Account that it deems reasonably necessary or appropriate in carrying out the
purposes of this Agreement.
11.3 GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the substantive laws of the state of New York without
regard to its conflicts of law provisions. The parties consent to the
jurisdiction of a state or federal court situated in New York City, New York in
connection with any dispute hereunder. The Fund irrevocably waives any
objection it may now or hereafter have to venue in such court and any claim
that a proceeding brought in such court has been brought in an inconvenient
forum. The parties hereby expressly waive, to the full extent permitted by
applicable law, any right to trial by jury with respect to any judicial
proceeding arising from or related to this Agreement. The parties agree that
the establishment and maintenance of the Accounts, and all interests, duties
and obligations with respect thereto, shall be governed by the laws of the
state of New York.
11.4 REPRESENTATIONS. Each party represents and warrants to the other
party that it has full authority to enter into this Agreement upon the terms
and conditions hereof and that the individual executing this Agreement on its
behalf has the requisite authority to bind such party to this Agreement, and
that the Agreement constitutes a binding obligation of such party enforceable
in accordance with its terms.
11.5 USA PATRIOT ACT. The Fund hereby acknowledges that the Custodian
is subject to federal laws, including the Customer Identification Program
("CIP") requirements under the USA PATRIOT Act and its implementing
regulations, pursuant to which the Custodian must obtain, verify and record
information that allows the Custodian to identify the Fund. Accordingly, prior
to opening an Account hereunder, the Custodian will ask the Fund to provide
certain information
20
EXECUTION
including, but not limited to, the Fund's name, physical address, tax
identification number and other information that will help the Custodian to
identify and verify the Fund's identity, such as organizational documents,
certificate of good standing, license to do business or other pertinent
identifying information. The Fund agrees that the Custodian cannot open an
Account hereunder unless and until the Custodian verifies the Fund's identity
in accordance with the Custodian's CIP.
11.6 NON-FIDUCIARY STATUS. The Fund hereby acknowledges and agrees
that the Custodian is not a fiduciary by virtue of accepting and carrying out
its obligations under this Agreement and has not accepted any fiduciary duties,
responsibilities or liabilities with respect to its services hereunder.
11.7 NOTICES. Notices shall be in writing and shall be addressed to
the Custodian or the Fund at the address set forth on the signature page or
such other address as either party may designate in writing to the other party.
All notices shall be effective upon receipt.
11.8 ENTIRE AGREEMENT. This Agreement and any related fee agreement
constitute the entire agreement with respect to the matters dealt with herein,
and supersede all previous agreements, whether oral or written, and documents
with respect to such matters.
11.9 NECESSARY PARTIES. All of the understandings, agreements,
representations and warranties contained herein are solely for the benefit of
the Fund and the Custodian, and there are no other parties who are intended to
be benefited by this Agreement.
11.10 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, and said
counterparts when taken together shall constitute but one and the same
instrument and may be sufficiently evidenced by one set of counterparts.
11.11 CAPTIONS. The captions of this Agreement are included for
convenience of reference only and in no way define or delimit any of the
provisions hereof or otherwise affect their construction or effect.
[Remainder of page intentionally left blank]
21
EXECUTION
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the latest date set forth below.
AUTHORIZED SIGNER OF: AUTHORIZED OFFICER OF:
[FUND] THE BANK OF NEW YORK
MELLON
BY: ______________ BY: _______________________
NAME: ______________ NAME: _______________________
TITLE: ______________ TITLE: _______________________
DATE: ______________ DATE: _______________________
ADDRESS FOR NOTICE: ADDRESS FOR NOTICE:
_____________________ The Bank of New York Mellon
_____________________ x/x XXX Xxxxxx Xxxxx Servicing
_____________________ ______________________________
_____________________ ______________________________
Attention: __________ Attention: ___________________
22
EXECUTION
SCHEDULE I
23
