FOREIGN CUSTODY MANAGER AGREEMENT
Exhibit j.2.
FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of June 9, 2023 by and between Polen Credit Opportunities Fund (the “Fund”) and The Bank of New York Mellon (“BNY”).
W I T N E S S E T H:
WHEREAS, the Fund desires to appoint BNY as a Foreign Custody Manager on the terms and conditions contained herein;
WHEREAS, BNY desires to serve as a Foreign Custody Manager and perform the duties set forth herein on the terms and conditions contained herein;
NOW THEREFORE, in consideration of the mutual promises hereinafter contained in this Agreement, the Fund and BNY hereby agree as follows:
ARTICLE I.
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless the context otherwise requires, shall have the following meanings:
1. "Board" shall mean the board of trustees of the Fund.
2. "Eligible Foreign Custodian" shall have the meaning provided in the Rule.
3. "Monitoring System" shall mean a system established by BNY to fulfill the Responsibilities specified in clauses (d) and (e) of Section 1 of Article III of this Agreement.
4. "Responsibilities" shall mean the responsibilities delegated to BNY under the Rule as a Foreign Custody Manager with respect to each Specified Country and each Eligible Foreign Custodian selected by BNY, as such responsibilities are more fully described in Article III of this Agreement.
5. "Rule" shall mean Rule 17f-5 under the Investment Company Act of 1940.
6. "Specified Country" shall mean each country listed on Schedule I attached hereto and each country, other than the United States, constituting the primary market for a security with respect to which the Fund has given settlement instructions to The Bank of New York Mellon as custodian (the "Custodian") under its Custody Agreement with the Fund.
ARTICLE II.
BNY AS A FOREIGN CUSTODY MANAGER
l. The Fund on behalf of its Board hereby delegates to BNY with respect to each Specified Country the Responsibilities.
2. BNY accepts the Board's delegation of Responsibilities with respect to each Specified Country and agrees in performing the Responsibilities as a Foreign Custody Manager to exercise reasonable care, prudence and diligence such as a person having responsibility for the safekeeping of the Fund’s assets would exercise.
3. BNY shall provide to the Board at such times as the Board deems reasonable and appropriate based on the circumstances of the Fund’s foreign custody arrangements written reports notifying the Board of the placement of assets of the Fund with a particular Eligible Foreign Custodian within a Specified Country and of any material change in the arrangements (including the contract governing such arrangements) with respect to assets of the Fund with any such Eligible Foreign Custodian.
ARTICLE III.
RESPONSIBILITIES
l. Subject to the provisions of this Agreement, BNY shall with respect to each Specified Country select an Eligible Foreign Custodian. In connection therewith, BNY shall: (a) determine that assets of the Fund held by such Eligible Foreign Custodian will be subject to reasonable care, based on the standards applicable to custodians in the relevant market in which such Eligible Foreign Custodian operates, after considering all factors relevant to the safekeeping of such assets, including, without limitation, those contained in paragraph (c)(1) of the Rule; (b) determine that the Fund’s foreign custody arrangements with each Eligible Foreign Custodian are governed by a written contract with the Custodian which will provide reasonable care for the Fund’s assets based on the standards specified in paragraph (c)(l) of the Rule; (c) determine that each contract with an Eligible Foreign Custodian shall include the provisions specified in paragraph (c)(2)(i)(A) through (F) of the Rule or, alternatively, in lieu of any or all of such (c)(2)(i)(A) through (F) provisions, such other provisions as BNY determines will provide, in their entirety, the same or a greater level of care and protection for the assets of the Fund as such specified provisions; (d) monitor pursuant to the Monitoring System the appropriateness of maintaining the assets of the Fund with a particular Eligible Foreign Custodian pursuant to paragraph (c)(1) of the Rule and the performance of the contract governing such arrangement; and (e) advise the Fund whenever BNY determines under the Monitoring System that an arrangement (including, any material change in the contract governing such arrangement) described in preceding clause (d) no longer meets the requirements of the Rule.
2. For purposes of preceding Section 1 of this Article, BNY's determination of appropriateness shall not include, nor be deemed to include, any evaluation of Country Risks associated with investment in a particular country. For purposes hereof, "Country Risks" shall mean systemic risks of holding assets in a particular country including but not limited to (a) an Eligible Foreign Custodian's use of any depositories that act as or operate a system or a transnational system for the central handling of securities or any equivalent book-entries; (b) such country's financial infrastructure; (c) such country's prevailing custody and settlement practices; (d) nationalization, expropriation or other governmental actions; (e) regulation of the banking or securities industry; (f) currency controls, restrictions, devaluations or fluctuations; and (g) market conditions which affect the orderly execution of securities transactions or affect the value of securities.
ARTICLE IV.
REPRESENTATIONS
1. The Fund hereby represents that: (a) this Agreement has been duly authorized, executed and delivered by the Fund, constitutes a valid and legally binding obligation of the Fund enforceable in accordance with its terms, and no statute, regulation, rule, order, judgment or contract binding on the Fund prohibits the Fund’s execution or performance of this Agreement; (b) this Agreement has been approved and ratified by the Board at a meeting duly called and at which a quorum was at all times present in-person or telephonically, and (c) the Board or an investment advisor to the Fund has considered the Country Risks associated with investment in each Specified Country and will have considered such risks prior to any settlement instructions being given to the Custodian with respect to any other country.
2. BNY hereby represents that: (a) BNY is duly organized and existing under the laws of the State of New York, with full power to carry on its businesses as now conducted, and to enter into this Agreement and to perform its obligations hereunder; (b) this Agreement has been duly authorized, executed and delivered by BNY, constitutes a valid and legally binding obligation of BNY enforceable in accordance with its terms, and no statute, regulation, rule, order, judgment or contract binding on BNY prohibits BNY's execution or performance of this Agreement; and (c) BNY has established the Monitoring System.
ARTICLE V.
CONCERNING BNY
1. BNY shall not be liable for any costs, expenses, damages, liabilities or claims, including attorneys’ and accountants' fees, sustained or incurred by, or asserted against, the Fund except to the extent the same arises out of the failure of BNY to exercise the care, prudence and diligence required by Section 2 of Article II hereof. In no event shall BNY be liable to the Fund, the Board or any third party for special, indirect or consequential damages, or for lost profits or loss of business, arising in connection with this Agreement.
2. The Fund shall indemnify BNY and hold it harmless from and against any and all costs, expenses, damages, liabilities or claims, including reasonable attorneys' and accountants' fees, sustained or incurred by, or asserted against, BNY by reason or as a result of any action or inaction, or arising out of BNY's performance hereunder, provided that the Fund shall not indemnify BNY to the extent any such cost, expense, damage, liability or claim arises out of BNY's failure to exercise the reasonable care, prudence and diligence required by Section 2 of Article II hereof. In no event shall the Fund be liable to BNY or any third party for special, indirect or consequential damages, or for lost profits or loss of business, arising in connection with this Agreement.
3. For its services hereunder, the Fund agrees to pay to BNY such compensation and out-of-pocket expenses as shall be mutually agreed in writing.
4. BNY shall have only such duties as are expressly set forth herein. In no event shall BNY be liable for any Country Risks associated with investments in a particular country.
ARTICLE VI.
MISCELLANEOUS
1. This Agreement constitutes the entire agreement between the Fund and BNY as a foreign custody manager, and no provision in the Custody Agreement between the Fund and the Custodian shall affect the duties and obligations of BNY hereunder, nor shall any provision in this Agreement affect the duties or obligations of the Custodian under the Custody Agreement.
2. Any notice or other instrument in writing, authorized or required by this Agreement to be given to BNY, shall be sufficiently given if received by it at its offices at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as BNY may from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required by this Agreement to be given to the Fund shall be sufficiently given if received by it at its offices at 000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, XX 00000, Attn: Xxxx X. Xxxxx or at such other place as the Fund may from time to time designate in writing.
4. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected thereby. This Agreement may not be amended or modified in any manner except by a written agreement executed by both parties. This Agreement shall extend to and shall be binding upon the parties hereto, and their respective successors and assigns; provided however, that this Agreement shall not be assignable by either party without the written consent of the other.
5. This Agreement shall be construed in accordance with the substantive laws of the State of New York, without regard to conflicts of laws principles thereof. The Fund and BNY hereby consent to the jurisdiction of a state or federal court situated in New York City, New York in connection with any dispute arising hereunder. The Fund and BNY each hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that such proceeding brought in such a court has been brought in an inconvenient forum. The Fund and BNY each hereby irrevocably waives any and all rights to trial by jury in any legal proceeding arising out of or relating to this Agreement.
6. The parties hereto agree that in performing hereunder, BNY is acting solely on behalf of the Fund and no contractual or service relationship shall be deemed to be established hereby between BNY and any other person by reason of this Agreement.
7. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute only one instrument.
8. This Agreement shall terminate simultaneously with the termination of the Custody Agreement between the Fund and the Custodian, and may otherwise be terminated by either party giving to the other party a notice in writing specifying the date of such termination, which shall be not less than thirty (30) days after the date of such notice.
IN WITNESS WHEREOF, the Fund and BNY have caused this Agreement to be executed by their respective officers, thereunto duly authorized, as of the date first above written.
| POLEN CREDIT OPPORTUNITIES FUND | |||
| By: | /s/ Xxxx X. Xxxxx | ||
| Name: | Xxxx X. Xxxxx | ||
| Title: | President and Chief Executive Officer | ||
| THE BANK OF NEW YORK MELLON | |||
| By: | /s/ Xxxxxx Xxxxxxxxx | ||
| Name: | Xxxxxx Xxxxxxxxx | ||
| Title: | Director, Relationship Manager | ||
SCHEDULE I
| Market Name | Subcustodian |
| Argentina | Citibank Argentina, Buenos Aires |
| Argentina | Citibank Argentina, Buenos Aires |
| Australia | Citigroup Pty Limited |
| Australia | Citigroup Pty Limited |
| Australia | The Hongkong and Shanghai Banking Corporation Limited Australia Branch |
| Australia | The Hongkong and Shanghai Banking Corporation Limited Australia Branch |
| Austria | UniCredit Bank Austria AG |
| Bahrain | HSBC Bank Middle East Limited, Manama |
| Bangladesh | Hongkong and Shanghai Banking Corporation, Dhaka |
| Belgium | The Bank of New York Xxxxxx XX/NV |
| Belgium | The Bank of New York Xxxxxx XX/NV |
| Benin | Société Générale Côte d'Ivoire, Abidjan |
| Bermuda | HSBC Bank Bermuda Limited, Xxxxxxxx |
| Botswana | Stanbic Bank Botswana Ltd |
| Botswana | Stanbic Bank Botswana Ltd |
| Botswana | Stanbic Bank Botswana Ltd. |
| Brazil | Citibank N.A., Brazilian Branch |
| Brazil | Citibank N.A., Brazilian Branch |
| Brazil | Citibank N.A., Brazilian Branch |
| Bulgaria | Citibank Europe plc, Bulgarian Branch |
| Bulgaria | Citibank Europe plc, Bulgarian Branch |
| Burkina Faso | Société Générale Côte d'Ivoire, Abidjan |
| Canada | CIBC Mellon Trust Company |
| Cayman Islands | See United States of America / The Bank of New York Mellon |
| Channel Islands | See United States of America / The Bank of New York Mellon |
| Chile | Banco Santander Chile |
| Chile | Itaú CorpBanca S.A. |
| China - Shanghai B shares | HSBC Bank (China) Company Limited |
| China - Shanghai A shares | HSBC Bank (China) Company Limited |
| China - Shenzhen B shares | HSBC Bank (China) Company Limited |
| China - Shenzhen A shares | HSBC Bank (China) Company Limited |
| China - CIBM | HSBC Bank (China) Company Limited |
| China - CIBM | HSBC Bank (China) Company Limited |
| China - Shanghai A shares | Bank of China |
| China - Shenzhen A shares | Bank of China |
| China -CIBM | Bank of China |
| China -CIBM | Bank of China |
| Colombia | Cititrust S.A., Bogota |
| Colombia | Cititrust S.A., Bogota |
| Costa Rica | Banco Nacional de Costa Rica |
| Croatia | Privredna Banka Zagreb d.d. |
| Cyprus | Citibank Europe Plc, Greece Branch |
| Czech Republic | Citibank Europe plc |
| Czech Republic | Citibank Europe plc |
| Denmark (For T2S EUR and DKK settlement) | Skandinaviska Enskilda Banken AB, Copenhagen Branch |
| Egypt | HSBC Bank Egypt S.A.E. |
| Egypt | HSBC Bank Egypt S.A.E. |
| Estonia | SEB Pank AS |
| Eswatini | Standard Bank Eswatini Ltd, Mbabane |
| Euromarkets - Clearstream | Clearstream Banking S.A. |
| Euromarkets - Euroclear | Euroclear Bank |
| Euromarkets - Euroclear - Fund Settle | For Fundsettle related services please contact your Relationship Executive |
| Finland | Skandinaviska Enskilda Banken, Helsinki branch |
| France | The Bank of New York Xxxxxx XX/NV |
| France | BNP Paribas Securities Services, Paris |
| Germany | The Bank of New York Xxxxxx XX/NV, Asset Servicing, Niederlassung Frankfurt am Main |
| Ghana | Stanbic Bank of Ghana Limited |
| Greece | Citibank Europe Plc, Greece Branch |
| Greece | Citibank Europe Plc, Greece Branch |
| Guinea Bissau | Société Générale Côte d'Ivoire, Abidjan |
| Hong Kong | Citibank N.A. Hong Kong Branch |
| Hong Kong | Citibank N.A. Hong Kong Branch |
| Hong Kong | Hongkong and Shanghai Banking Corporation, Hong Kong |
| Hong Kong | Hongkong and Shanghai Banking Corporation, Hong Kong |
| Hungary | Citibank Europe plc. Hungarian Branch Office |
| Iceland | Landsbankinn hf. |
| India | Deutsche Bank AG Mumbai |
| India | Deutsche Bank AG Mumbai |
| India | Deutsche Bank AG Mumbai |
| India | Hongkong and Shanghai Banking Corporation, Mumbai |
| India | Hongkong and Shanghai Banking Corporation, Mumbai |
| India | Hongkong and Shanghai Banking Corporation, Mumbai |
| Indonesia | Deutsche Bank AG, Jakarta |
| Indonesia | Deutsche Bank AG, Jakarta |
| Ireland | Euroclear Bank |
| Ireland | Euroclear Bank |
| Israel | Bank Hapoalim B.M. |
| Italy | The Bank of New York Xxxxxx XX/NV |
| Ivory Coast | Société Générale Côte d'Ivoire, Abidjan |
| Japan | MUFG Bank, Ltd. |
| Japan | MUFG Bank, Ltd. |
| Japan | Mizuho Bank, Ltd |
| Japan | Mizuho Bank, Ltd |
| Jordan | Standard Chartered Bank, Jordan Branch |
| Jordan | Standard Chartered Bank, Jordan Branch |
| Kazakhstan | Citibank Kazakhstan JSC |
| Kenya | Stanbic Bank Kenya Limited |
| Kenya | Stanbic Bank Kenya Limited |
| Kuwait | HSBC Bank Middle East, Kuwait |
| Latvia | AS SEB banka |
| Lithuania | SEB Bankas, Vilnius |
| Luxembourg | Euroclear Bank SA/NV |
| Malaysia | Standard Chartered Bank Malaysia Berhad (Effective November 14, 2022) |
| Malaysia | Standard Chartered Bank Malaysia Berhad (Effective November 14, 2022) |
| Malaysia | Deutsche Bank (Malaysia) Berhad |
| Malaysia | Deutsche Bank (Malaysia) Berhad |
| Malawi | Standard Bank PLC |
| Mali | Société Générale Côte d'Ivoire, Abidjan |
| Malta | The Bank of New York Xxxxxx XX/NV, Asset Servicing, Niederlassung Frankfurt am Main |
| Mauritius | Hongkong and Shanghai Banking Corporation, Ebene |
| Mexico | Banco S3 Mexico S.A. |
| Mexico | Citibanamex |
| Morocco | Citibank Maghreb |
| Namibia | Standard Bank Namibia Ltd |
| Netherlands | The Bank of New York Xxxxxx XX/NV |
| New Zealand | The Hongkong and Shanghai Banking Corporation Limited, New Zealand Branch |
| Niger | Société Générale Côte d'Ivoire, Abidjan |
| Nigeria | Stanbic IBTC Bank PLC |
| Nigeria | Stanbic IBTC Bank PLC |
| Norway | Skandinaviska Enskilda Banken AB, Oslo Branch |
| Oman | HSBC Bank Oman S.A.O.C. |
| Pakistan | Deutsche Bank AG Karachi Branch |
| Pakistan | Deutsche Bank AG Karachi Branch |
| Panama | Citibank N.A., Panama Branch, Panama City |
| Peru | Citibank N.A., Sucursal de Lima |
| Philippines | Standard Chartered Bank, Philippines Branch (Effective October 24, 2022) |
| Philippines | Standard Chartered Bank, Philippines Branch (Effective October 24, 2022) |
| Philippines | Deutsche Bank AG, Manila |
| Philippines | Deutsche Bank AG, Manila |
| Poland | Bank Pekao SA |
| Poland | Bank Pekao SA |
| Portugal | Citibank Europe Plc |
| Qatar | HSBC Bank Middle East Limited, Doha |
| Qatar | Qatar National Bank |
| Romania | Citibank Europe plc. Romania Branch |
| Romania (Including T2S EUR settlement) | Citibank Europe plc. Romania Branch |
| Russia | AO CITIBANK MOSCOW |
| Russia | PJSC ROSBANK |
| Saudi Arabia | HSBC Saudi Arabia |
| Senegal | Société Générale Côte d'Ivoire, Abidjan |
| Serbia | UniCredit Bank Serbia JSC |
| Singapore | DBS Bank Ltd., Singapore |
| Singapore | DBS Bank Ltd., Singapore |
| Singapore | Standard Chartered Bank (Singapore) Limited |
| Singapore | Standard Chartered Bank (Singapore) Limited |
| Slovak | Citibank Europe plc, pobocka zahranicnej banky |
| Slovenia | UniCredit Banka Slovenia d.d. |
| South Africa | The Standard Bank of South Africa Limited |
| South Africa | The Standard Bank of South Africa Limited |
| South Africa | The Standard Bank of South Africa Limited |
| South Africa | Standard Chartered Bank, Johannesburg branch |
| South Africa | Standard Chartered Bank, Johannesburg branch |
| South Africa | Standard Chartered Bank, Johannesburg branch |
| South Korea | Hongkong and Shanghai Banking Corporation, Seoul |
| South Korea | Deutsche Bank AG, Seoul |
| Spain | Caceis Bank Spain, S.A.U. |
| Spain | Banco Bilbao Vizcaya Argentaria, Madrid |
| Sri Lanka | Hongkong and Shanghai Banking Corporation, Colombo |
| Sri Lanka | Hongkong and Shanghai Banking Corporation, Colombo |
| Sweden | Skandinaviska Enskilda Banken, Stockholm |
| Switzerland | UBS Switzerland AG |
| Switzerland (For T2S EUR settlement) | UBS Switzerland AG |
| Switzerland (For T2S EUR settlement) | Credit Suisse Switzerland Ltd |
| Switzerland | Credit Suisse Switzerland Ltd |
| Taiwan | HSBC Bank (Taiwan) Limited |
| Taiwan | HSBC Bank (Taiwan) Limited |
| Tanzania | Stanbic Bank Tanzania Limited |
| Thailand | Hongkong and Shanghai Banking Corporation, Bangkok |
| Thailand | Hongkong and Shanghai Banking Corporation, Bangkok |
| Togo | Société Générale Côte d'Ivoire, Abidjan |
| Tunisia | Union Internationale de Banques |
| Turkey | Deutsche Bank A.S., Istanbul |
| Turkey | Deutsche Bank A.S., Istanbul |
| Uganda | Stanbic Bank Uganda Limited |
| Uganda | Stanbic Bank Uganda Limited |
| Ukraine | JSC “Citibank” |
| United Arab Emirates | HSBC Bank Middle East Limited, Dubai |
| United Arab Emirates | HSBC Bank Middle East Limited, Dubai |
| United Arab Emirates | HSBC Bank Middle East Limited, Dubai |
| United Arab Emirates | HSBC Bank Middle East Limited, Dubai |
| United Kingdom | The Bank of New York Mellon |
| United Kingdom | The Bank of New York Mellon |
| United States | The Bank of New York Mellon, New York |
| United States | The Bank of New York Mellon, New York |
| Uruguay | Banco Itaù Uruguay S.A. |
| Uruguay | Banco Itaù Uruguay S.A. |
| Vietnam | HSBC Bank (Vietnam) Ltd |
| Zambia | Stanbic Bank Zambia Ltd. |
| Zambia | Stanbic Bank Zambia Ltd. |
| Zimbabwe | Stanbic Bank Zimbabwe Limited |
| Zimbabwe | Stanbic Bank Zimbabwe Limited |
| Zimbabwe | Stanbic Bank Zimbabwe Limited |
| Zimbabwe | Stanbic Bank Zimbabwe Limited |
