Execution Copy
MASTER SERVICES AGREEMENT
This Master Services
Agreement (the “Agreement”) is made as of November 7, 2022 (the “Effective
Date”) between:
| (1) | Each entity identified on Appendix
A, whose jurisdiction of formation is identified opposite its name (the “Client”);
and |
| (2) | STATE STREET BANK AND TRUST
COMPANY, a bank and trust company organized under the laws of The Commonwealth of
Massachusetts, U.S.A. (the “State Street”). |
| A. | INTRODUCTION; DEFINITIONS |
The Client is an open-end management
investment company currently comprised of a single or multiple series (each, a “Fund” and collectively, the “Funds”),
and is registered with the U.S. Securities and Exchange Commission (“SEC”) by means of a registration statement (“Registration
Statement”) under the 1933 Act and the 1940 Act.
Pursuant to the terms of this Master Services Agreement,
including the Schedules hereto, State Street will provide custody, accounting and the other administration services described
herein to the Client and the Client shall pay to State Street the fees and expenses set forth in a written fee schedule(s) agreed to by the Parties from time to time.
| 2 | Definitions and Interpretation |
Defined
terms and the general rules of interpretation agreed by the Parties are set forth in Schedule 1.
| 0 | Xxxxxxxxxxx
xx Xxxxx Xxxxxx as Custodian |
The
Client hereby appoints State Street to provide the custody services set out in Sections B.2 through B.14 below (the “Custody
Services”) subject to and in accordance with the terms of this Agreement.
| 2.1 | Holding Securities. State
Street will hold Securities delivered or credited to its account under this Agreement
directly or through accounts at Subcustodians or CSDs. In turn, Subcustodians will hold
Securities directly or through accounts at CSDs. |
| 2.2 | Client Entitlements and Segregation.
State Street will take the following steps to reflect the Client’s ownership
of Securities and to separately identify the Securities of the Client from the proprietary
assets of State Street, Subcustodians, and CSDs, in accordance with Local Market Practice: |
| 2.2.1 | Accounts
at State Street. Open and maintain on the records of State Street one or more securities
accounts in the name of the Client or such other name as the Client may reasonably request
(each, a “Securities Account”) and credit Securities to them; |
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| 2.2.2 | Accounts
at the Subcustodians or CSDs. Open and maintain securities accounts at the Subcustodians
or CSDs in which State Street is a direct participant, cause Subcustodians to open and
maintain securities accounts at CSDs in which the Subcustodian is a participant, and
cause Securities to be credited to the relevant accounts. Such accounts: (i) may be commingled
(or omnibus) accounts for Securities of multiple customers of State Street (or Subcustodian,
in the case of accounts opened by the Subcustodian at a CSD) or, in limited markets,
segregated (or separate) accounts for Securities of the Client; and (ii) must not include
any proprietary securities of State Street, the Subcustodian or the CSD; provided that,
to the extent permitted by applicable Law and consistent with Local Market Practice,
State Street will require each Subcustodian to maintain its books and records such that
it is apparent that the Securities held at such Subcustodian by State Street on behalf
of its customers belong to customers of State Street and do not belong to State Street
or the Subcustodian; |
| 2.2.3 | Physical
Securities. Physically segregate bearer Securities from the proprietary assets of
State Street, and require that the Subcustodians physically segregate bearer Securities
from the Subcustodian’s and State Street’s proprietary assets; |
| 2.2.4 | Registration
Names. Register certificated Securities (other than bearer securities) in the name
of the Client or in the name of State Street, a Subcustodian, a CSD or a nominee of any
of them, or otherwise in accordance with Local Market Practice and the laws and regulations
applicable to State Street; and |
| 2.2.5 | Records
of Transactions; Reconciliation. Maintain records of the Client’s transactions
in the Securities Accounts and reconcile its records of clients’ securities holdings
against the records of its Subcustodians and CSDs in which it is a direct participant
in accordance with State Street’s standard procedures and Local Market Practice.
Subcustodians will likewise maintain records of their client’s transactions and
reconcile their records of the securities holdings of their clients against the records
of the CSDs in which they are a direct participant in accordance with the Subcustodians’
standard procedures and Local Market Practice. |
| 2.3 | Securities Interchangeable.
Securities of the Client (whether held in separate or commingled accounts) are fungible
with all other securities of the same issue held in such accounts by State Street and
its Subcustodians. This means that the Client’s redelivery rights in respect of
the Securities are not in respect of the Securities actually deposited with State Street
or a Subcustodian from time to time, but rather in respect of Securities of the same
number, class, denomination and issue as those Securities. |
| 2.4 | Acceptance of Securities.
Except as otherwise agreed in writing with the Client, State Street will only accept
custody of Securities and other assets that it is operationally equipped and licensed
to hold in the relevant market where it provides custodial services either directly or
through an existing Subcustodian and may decline to accept custody of certain securities
or asset types that it determines present an unacceptable risk profile or that it or
its Subcustodians are not operationally equipped or permitted to hold under any law or
regulation. |
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| 3.1 | Cash
Accounts. State Street will open and maintain in the name of the Client one or more
cash deposit accounts (each a “Cash Account”) in such currencies as may be
required in connection with the investment activity of the Client. |
| 3.2 | Location of Cash Deposits.
Cash received for the Client will be deposited with State Street, or with a Subcustodian,
depending on the currency and/or the market. State Street will designate each currency
in a particular market as On Book Cash or Off Book Cash. “On
Book Cash” means the currency is maintained in a deposit account with, and recorded
as a liability on the balance sheet of, State Street (through any of its branches) and
“Off Book Cash” means the currency is maintained in a deposit account with,
and recorded as a liability on the balance sheet of, a Subcustodian (through any of its
branches). State Street may change the designation of a currency as On Book or Off Book
from time to time. Clients will find the designation of currencies as On Book Cash and
Off Book Cash, and any changes to such designations, in the Client Publications. |
| 3.3 | Cash Records. State
Street will reflect Cash balances held in all On Book and Off Book Client deposit accounts
on its books and records and report the balances to the Client. |
| 3.4 | Banking Relationship. In
accepting deposits under this Agreement, State Street (for On Book Cash) or the relevant
Subcustodian (for Off Book Cash) acts as banker and does not hold the money deposited
on trust or segregated from its proprietary assets. Accordingly, the Client is an unsecured
creditor of State Street (for On Book Cash) or the relevant Subcustodian (for Off Book
Cash), subject to such rights as may arise in an Insolvency Event as determined under
the laws of the jurisdiction of State Street or relevant Subcustodian. With respect to
Off Book Cash, State Street is only responsible for returning the actual amount that
State Street receives from the Subcustodian. |
| 3.5 | Interest and Charges. Cash
Accounts may be interest bearing or non-interest bearing and may be subject to charges
or fees on the deposit balance or on a per account basis. State Street or the relevant
Subcustodian will determine on a periodic basis: |
| 3.5.1 | the
interest rates, if any, (which may be positive, zero or negative) or equivalent charges
or fees paid or charged to the Client from time to time with respect to a Cash Account;
and |
| 3.5.2 | the overdraft rates or
equivalent charges or fees and the applicable overdraft thresholds (if any) that will
trigger interest charges from time to time for overdrafts, |
in each case, acting in their sole
discretion, taking into account market conditions and other relevant commercial considerations. Interest and overdraft rates or
other account charges or fees will vary by currency. Details on current rates and deposit account charges are available upon request.
| 3.6 | Overdrafts. The Client
must maintain sufficient funds in the Cash Accounts to settle all transactions in the
applicable currencies in a timely manner. State Street or its Subcustodians may, but
are not required to, extend credit under this Agreement. State Street reserves the right
to decline to process any Proper Instruction or settle any transaction that would result
in an overdraft of the Cash Account. If an overdraft arises in the Cash Account, the
Client agrees to repay the principal amount of the overdraft upon demand by State Street
or within five Business Days, whichever is earlier, plus any applicable overdraft fees
and interest (which shall be the applicable interest rate charged by State Street at
that time for overdrafts) on the principal overdraft. |
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| 4.1 | Settlement.
State Street will settle all transactions in accordance with Local Market Practice, which
may not always be on a delivery-versus-payment or receipt-versus-payment basis. Except
as otherwise provided below regarding Contractual Settlement, State Street will credit
or debit the appropriate Cash Account on an actual settlement or payment basis. |
| 4.2 | Contractual
Settlement. In order to facilitate transaction settlement, State Street may provisionally
credit settlement, maturity or redemption proceeds, or income, dividends and other distributions,
on a contractual settlement or predetermined income basis (“Contractual Settlement”),
for markets, securities and eligible clients as determined and notified by State Street
in the Client Publications. State Street can terminate or suspend Contractual Settlement
for markets, securities or particular clients at any time. To the extent practicable
in the circumstances, State Street will make commercially reasonable efforts to provide
advance notice to Client prior to terminating or suspending Contractual Settlement for
a market, securities or the Client. |
| 4.3 | Use
of Funds. Where Contractual Settlement applies, State Street will credit or debit
the appropriate Cash Account on the contractual settlement date or payable date for the
relevant transaction. This means that (i) the Client will have use of the funds from
the date that a sale was contracted to settle or the payable date, which may be earlier
than the date payment actually occurs and (ii) State Street will have use of the funds
debited from the Cash Account from the date that a purchase was contracted to settle
until the date that settlement actually occurs. |
| 4.4 | Reversal.
State Street may reverse any Contractual Settlement credit at any time before actual
receipt of the cash payment associated with the credit if State Street determines, in
its reasonable judgement, that such payment will not be received within 30 days for that
transaction or if State Street suspends or terminates the provision of Contractual Settlement
for those Securities in that market. State Street will notify the Client 48 hours before
any such reversal. |
| 4.5 | Secured
Liability. To the extent that State Street has not received the cash payment associated
with a credit, the amount credited remains a Secured Liability under this Agreement. |
| 4.6 | Fails
to Deliver. In the case of the failure of the Client’s counterparty (or other
appropriate party) to deliver the expected consideration as agreed, State Street will
make available to the Client on xxxxxxxxxxxxx.xxx information regarding such failure
to deliver. |
| 5.1 | Transmit
Information. State Street will promptly transmit or make available to the Client
all material written information customarily provided by a professional global custodian
regarding an applicable Corporate Action, or a brief synopsis of that information, affecting
Securities then being held under this Agreement, where (i) that information is received
directly from issuers of such Securities or from CSDs or Subcustodians or (ii) that information
is publicly available in the relevant market from standard vendors routinely used by
professional global custodians provided that State Street can verify the accuracy of
such information. State Street will transmit or make available such Corporate Action
data it receives from primary sources (issuers, CSDs and Subcustodians) without further
review although it will generally note if such information |
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is single sourced. State Street generally will not
transmit or make available such Corporate Action data it receives from secondary sources (vendors) unless the accuracy of that
information can be verified against at least one additional source.
| 5.2 | Exercise.
State Street will process the Client’s elections with respect to any voluntary
Corporate Action at the direction of the Client provided it has actual possession of
the relevant Securities and it has received Proper Instructions by the deadline specified
in State Street’s Corporate Action notification (“Corporate Actions Deadline
Date”). State Street will use reasonable efforts to effect Proper Instructions
received after that deadline but will have no responsibility for any failure to exercise
such instructions accurately or timely. In the absence of receiving Proper Instructions
by the Corporate Actions Deadline Date, State Street may take the default action specified
in the corporate action notification. In the event of a mandatory Corporate Action, State
Street will act without Proper Instructions in accordance with Section E.7.10. |
| 5.3 | Class
Actions. State Street will transmit written information received by State Street
regarding any class action litigation to the extent set out in the Client Publications.
State Street will not support class action participation by the Client beyond such forwarding
of written information. In no event will State Street act as a lead plaintiff in a class
action. |
| 5.4 | Fractional
Positions. Fractional positions resulting from Corporate Actions will be dealt with
in accordance with the Client Publications. |
| 6.1 | Transmit
Information. State Street will forward to the Client all proxies received by
State Street relating to the Securities then held under this Agreement, for the markets
designated in the Client Publications, unless otherwise instructed by the Client. State
Street will use an agent to assist in the receipt and distribution of proxies and will
share the Client’s position and contact information to facilitate such collection
and distribution. |
| 6.2 | Voting.
State Street provides proxy voting services for the markets designated in the Client
Publications. State Street will cause eligible proxies to be promptly executed by the
registered holder in accordance with Proper Instructions and delivered to the issuer
of the Securities or its designated agent. In order for State Street to provide the voting
services, State Street must have received such Proper Instructions, must have actual
possession of the relevant Securities, and all requirements set out in the Client Publications
must have been met, including where applicable receiving an executed power of attorney,
in each case by the deadline specified in State Street’s proxy notification. |
| 7.1 | Monitoring
and Crediting. State Street will use commercially reasonable efforts to monitor and
collect on a timely basis, in accordance with Local Market Practice, all income and other
payments to which the Client is entitled in respect of the Securities held under this
Agreement and Securities on loan through the securities lending program sponsored by
State Street or its Affiliates. State Street will credit such amounts to the Cash Account
of the Client as received, except where Contractual Settlement applies. State Street
will use commercially reasonable efforts to contact appropriate parties to collect unpaid
interest or dividends and promptly notify the Client of the late payment. |
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| 7.2 | Repatriation
of Income. The Client is responsible for directing the repatriation of income into
the base currency of the Portfolio or another currency selected by the Client, and may
enter into separate arrangements to do so, as set out in Section 12 of this Agreement. |
| 8.1 | Contents.
State Street will make available reports to the Client regarding the Portfolio on
a periodic basis as selected by the Client from certain online tools made available from
time to time by State Street or as otherwise agreed with the Client. The reports will
include Cash balances, an itemized statement of Securities and Cash and Securities transaction
activity. Market values contained in these reports are unaudited and based on State Street’s
standard pricing vendors and practices. These reports will not include net asset value
calculations. |
| 8.2 | Cash
and Securities Not Held. State Street may agree to incorporate information in respect
of cash or securities not held by State Street. In making available such information
to the Client, State Street will rely upon the information provided by the Client or
a third party without any requirement to verify the accuracy of such information. State
Street will not perform any other Custody Services in relation to such cash or securities. |
| 9 | Tax
Withholding and Tax Relief |
| 9.1 | Withholding.
State Street will withhold (or cause to be withheld) the amount of any tax which
is required to be withheld by State Street or Subcustodian under the Law applicable to
State Street or Subcustodian based on the Client’s domicile and entity type in
respect of any dividend, interest income or other distribution in relation to any Security,
and/or the proceeds or income from the sale or other transfer of any Security held by
State Street. If the Client has not provided the requisite information and documentation,
State Street is obligated to arrange for maximum withholding. In certain markets, the
Client will be required to hire a local tax agent to calculate withholding, as set out
in the Client Publications. |
| 9.2 | Tax
Relief. State Street will apply for a reduction of withholding tax and refund of
any tax paid or tax credits in respect of income payments on Securities based on the
Client’s entitlement under relevant tax treaties or laws which apply in each market
that supports a standard tax reclaim process, in all cases as may be set out from time
to time in the Client Publications. State Street does
not facilitate tax reclaims for tax transparent or pass-through (i.e., multiple-beneficiary)
entities such as partnerships, LLCs, common trusts or any other types of entities that
are generally ineligible for tax treaty or domestic law tax entitlements, even where
the partners or beneficial holders of such entities may be eligible. |
| 9.3 | Documentation.
In order for State Street to perform the services in this Section 9, the Client will
provide State Street such information and documentation as may be required from time
to time by State Street for tax purposes, including documentary evidence of its tax domicile,
and its entity type and details of any special ruling or treatment to which the Client
may be entitled in relation to countries where the Client engages or proposes to engage
in investment activity or where Securities are or will be held. The Client is responsible
for ensuring the documentation and information provided is true and accurate in all material
respects and will promptly provide State Street with all necessary |
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corrections or updates upon becoming aware of any
changes or inaccuracies in the documentation or information supplied. The provision of documentation and information under this
Section 9.3 will be taken to be a Proper Instruction upon which State Street will be entitled to rely for all purposes under this
Section 9, including calculating withholding and determining available tax relief, without the need to undertake any further inquiries
or verification.
| 9.4 | Client
Responsible for Taxes. The Client will be liable for all taxes, levies or similar
obligations which arise as a result of the Client’s investment activity, including
in relation to any Cash or Securities held by State Street on behalf of the Client, or
any related transactions. If any taxes become payable in relation to any prior payment
made to the Client by Xxxxx Xxxxxx, Xxxxx Xxxxxx may withhold any credit balance in the
Client’s Cash Accounts to the extent necessary to satisfy such tax obligation.
The Client will also remain liable for any tax deficiency. |
| 9.5 | No
Tax Advice. The Client acknowledges that State Street is not, and will not be deemed
to be, providing tax advice or tax counsel. |
| 10 | Physical
Safekeeping of Investment Documents |
| 10.1 | Document
Safekeeping. State Street may agree to provide physical safekeeping for Investment
Documents delivered to it and will return such Investment Documents to the Client upon
receipt of Proper Instructions, subject to additional documentation and other requirements
as State Street may specify from time to time. |
| 10.2 | No
Other Custody Services. State Street will not otherwise perform any other Custody
Services in relation to such Investment Documents. |
| 11 | Alternative Asset Servicing |
| 11.1 | Alternative
Assets. State Street may agree to reflect the Client’s Alternative Assets on
its books, records or statements. Unless otherwise agreed in writing, State Street will
not perform any other services or assume any obligations in relation to Alternative Assets.
State Street may, in limited cases, agree to register the Client’s interests in
Alternative Assets in the name of State Street, subject to additional documentation and
other requirements as State Street may specify from time to time. |
| 12.1 | Role
of Custodian. The role of State Street with respect to foreign exchange transactions
is limited to facilitating the processing and settlement of such transactions. State
Street does not have any agency, trust or fiduciary obligation to the Client or any other
person in connection with the execution of any foreign exchange transactions, other than
the obligation as agent to process the Proper Instructions given by the Client. |
| 12.2 | Role
of Counterparties. If the Client enters into any foreign exchange transaction with
State Street Bank and Trust Company, a Subcustodian or any of their Affiliates, the Client
does so on the basis that these entities are acting as a principal dealer and counterparty,
and not as fiduciary or agent to the Client, and the execution services are governed
by separate arrangements (including pricing) and do not form part of the Services provided
by State Street under this Agreement. This applies to foreign exchange transactions entered
into by the Client directly with the trading desk of these entities or by Proper Instruction
to State Street using the indirect foreign exchange services described in the Client
Publications. |
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| 13.1 | Use
of Subcustodians. State Street is authorized to utilize Subcustodians in connection
with its performance of the Custody Services, and will notify
the Client of the Subcustodians so employed from time to time through the Client Publications.
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| 13.2 | Selection
and Monitoring. State Street will use reasonable skill, care and diligence in the
selection, monitoring and continued utilization of Subcustodians by taking the following
actions: (i) annually assess the financial condition of each Subcustodian by reviewing
their publicly available financial information, (ii) on a daily basis monitoring the
performance by each Subcustodian of its duties relative to the Custody Services, and
(iii) confirming on an annual basis that each Subcustodian is licensed to act as a subcustodian
in its relevant market. |
| 13.3 | Special
Subcustodians. At the request of the Client, State Street may agree to appoint one
or more qualified banks, trust companies or other entities designated by the Client to
act as a subcustodian (each a “Special Subcustodian”) for purposes specified
by the Client. In connection with the appointment of a Special Subcustodian, State Street
shall enter into a tri-party subcustodian agreement with the Special Subcustodian and
the Client in form and substance approved State Street, provided that such agreement
shall comply with Law applicable to the Client and shall be consistent with the terms
and provisions of this Agreement, to the extent practicable. |
| 13.4 | Provisions
Relating to Rule 17f-5 |
| 13.4.1 | Delegation. The
Client, by resolution of the Board, delegates to State Street, pursuant to Rule 17f-5(b),
the obligations to perform as the Client’s Foreign Custody Manager and, unless
State Street advises the Client that it does not accept such delegation with respect
to a country, State Street accepts such delegation. State Street acting in this capacity
shall be referred to as the “Foreign Custody Manager.” |
| 13.4.2 | Exercise of Care as
Foreign Custody Manager. The Foreign Custody Manager will exercise such reasonable
care, prudence and diligence in performing the delegated responsibilities as a person
having responsibility for the safekeeping of assets of management investment companies
registered under the 1940 Act would exercise. |
| 13.4.3 | Foreign Custody Arrangements.
The Foreign Custody Manager will perform the delegated responsibilities only with
respect to Covered Foreign Countries and will provide the Client with a list on Schedule
A of the Eligible Foreign Custodian(s) it selects to maintain the Client’s Foreign
Assets in each Covered Foreign Country. The Foreign Custody Manager may amend the list
from time to time in its sole discretion upon notice to the Client. |
| 13.4.4 | Scope of Delegated Responsibilities.
The Foreign Custody Manager, when placing and maintaining Foreign Assets in the care
of an Eligible Foreign Custodian, will determine that: (i) the Foreign Assets will be
subject to reasonable care, based on the standards applicable to custodians in the country
in which the Foreign Assets will be held by the Eligible Foreign Custodian, after considering
all factors relevant to the safekeeping of such assets, including, without limitation
the factors specified in Rule 17f-5(c)(1), and (ii) the contract between the Foreign
Custody Manager and the Eligible Foreign Custodian governing the foreign custody arrangements
will satisfy the requirements of Rule 17f-5(c)(2). The Foreign Custody Manager will establish
a system to monitor (a) the appropriateness of maintaining the Foreign Assets with the |
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Eligible Foreign Custodian, and (b) the performance
of the contract governing the foreign custody arrangements. The Foreign Custody Manager will notify the Client if it determines
that the custody arrangements with an Eligible Foreign Custodian are no longer appropriate and will act in accordance with the
Client’s Proper Instructions with respect to the disposition of the affected Foreign Assets.
| 13.4.5 | Reporting Requirements.
The Foreign Custody Manager will (i) report the withdrawal of Foreign Assets from an
Eligible Foreign Custodian and the placement of Foreign Assets with another Eligible
Foreign Custodian by providing to the Client an updated Schedule A at the end of the
calendar quarter in which the action has occurred, and (ii) after the occurrence of any
other material change in the foreign custody arrangements of the Client, make a written
report available to the Client containing a notification of the change. |
| 13.4.6 | Representations of Foreign
Custody Manager and Client. The Foreign Custody Manager represents to Client that
it is a U.S. Bank as defined in Section (a)(7) of Rule 17f-5(a)(7). Client represents
to State Street that its Board has (i) determined that it is reasonable for the Board
to rely on State Street to perform the responsibilities delegated pursuant to this Agreement
to State Street as the Foreign Custody Manager of the Client, and (ii) considered and
determined to accept the risk described in the first sentence of Section E.4.2 as is
incurred by placing and maintaining the Client’s Foreign Assets in each Covered
Foreign Country. |
| 13.4.7 | Withdrawal of Acceptance
of Delegation as Foreign Custody Manager. Upon reasonable prior written notice to
the Client, the Foreign Custody Manager may withdraw its acceptance of such delegated
responsibilities generally or with respect to a specified Covered Foreign Country, and
State Street will have no further responsibility in its capacity as Foreign Custody Manager
to the Client generally or with respect to the designated Covered Foreign Country, as
applicable. |
| 13.4.8 | Settlement Practices.
State Street will provide to each Client the information with respect to custody
and settlement practices in countries in which State Street employs an Eligible Foreign
Custodian described on Schedule C at the time or times set out on the Schedule. State
Street may revise Schedule C from time to time, but no revision will result in a Client
being provided with substantively less information than had been previously provided
on Schedule C. |
| 14 | Central Securities Depositories |
| 14.1 | Use
of Central Securities Depositories. State Street and its Subcustodians will use CSDs
in connection with the performance of the Custody Services, and will notify the Client
of the CSDs so employed from time to time through the Client Publications. |
| 14.2 | Rules
of Central Securities Depositories. Where State Street or its Subcustodians use
CSDs, the Client acknowledges that they will do so in accordance with the terms and conditions
of participation or membership in such CSDs and the rules and procedures governing the
operation thereof. |
| 14.3 | Provisions
Relating to Rule 00x-0. Xxxxx Xxxxxx may deposit and maintain securities or other
financial assets of the Client in a U.S. CSD in compliance with the conditions of Rule
17f-4. |
| 14.4 | Provisions Relating
to Rule 00x-0. Xxxxx Xxxxxx will (i) provide the Client or its Investment Manager
with an analysis of the custody risks associated with maintaining |
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assets with the Eligible Securities Depositories
set out on Schedule B in accordance with Section (a)(1)(i)(A) of Rule 17f-7, (ii) monitor such risks on a continuing basis and
promptly notify the Client or its Investment Manager of any material change in such risks, in accordance with Section (a)(1)(i)(B)
of Rule 17f-7, and (iii) exercise reasonable care, prudence and diligence in performing the requirements in subsections (i) and
(ii) above.
| C. | Fund
Administration Services |
| 1. | The Client hereby appoints
State Street to act as administrator to the Client for purposes of providing the administration
services set forth on Schedule 2 attached hereto (the “Administration Services”)
for the period and on the terms set forth in this Agreement. State Street accepts such
appointment and agrees to render the Administration Services subject to the authorization
and direction of the Client and, in each case where appropriate, the review and comment
by the Client’s independent accountants and legal counsel and in accordance with
procedures which may be established from time to time between the Client and State Street. |
| 2. | State Street shall perform such other
administration services for the Client that are mutually agreed to by the parties from
time to time, for which the Client will pay such fees as may be mutually agreed upon,
including State Street’s reasonable out-of-pocket expenses. The provision of such
other administration services shall be subject to the terms and conditions of this Agreement. |
| 3. | State
Street shall provide the Administration Services on the terms and conditions set forth
in this Agreement including Schedule 2. In the event of an inconsistency between the
provisions contained in the body of this Agreement and Schedule 2 attached hereto, the
terms of Schedule 2 will govern with respect to the Administration Services. |
| D. | INVESTMENT ANALYTICS SERVICES |
| 1. | Pursuant to Schedule 3 attached hereto,
State Street shall perform the investment analytic services (“Investment Analytics
Services”) described in one or more service schedules (the “Service Schedule(s)”)
attached to Schedule 3. State Street shall provide the Investment Analytics Services
on the terms and conditions set forth in this Agreement and on the terms and conditions
set forth in Schedule 3 and related Service Schedules. In the event of an inconsistency
between the provisions contained in this Agreement and Schedule 3, the terms of Schedule
3 will govern with respect to the Investment Analytics Services. Schedule 3 will also
govern in the event of a conflict between the Schedule 3 and any Service Schedule, unless
such Service Schedule provides otherwise by explicitly making reference to and amending
one or more specific Sections of Schedule 3. |
| E. | GENERAL TERMS AND CONDITIONS |
| 1.1 | Use
of Delegates. State Street will have the right, without prior notice to or the consent
of the Client, to employ Delegates to provide or assist it in the provision of any part
of the Services other than Services required by Law applicable to either Party to be
performed by a qualified custodian or CSD or by the administrator of a fund. Unless |
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otherwise agreed in a fee schedule, State Street
will be responsible for the compensation of its Delegates.
| 1.2 | Provision
of Information Regarding Delegates. State Street will
use reasonable skill, care, and diligence in the selection and monitoring of its Delegates
and will provide or make available to the Client on a quarterly or other periodic basis
information regarding its global operating model for the delivery of the Services, which
information will include the identities of Delegates affiliated with State Street that
perform or may perform any part of the Services, and the locations from which such Delegates
perform Services, as well as such other information about its Delegates as the Client
may reasonably request from time to time. |
| 1.3 | Third
Parties. Nothing in this Section limits or restricts State Street’s right to
use Affiliates or third parties to perform or discharge, or assist it in the performance
or discharge of, any obligations or duties under this Agreement other than the provision
of the Services. |
| 2 | Standard
of Care and Liability |
| 2.1 | Standard
of Care. State Street will at all times exercise the reasonable skill, care, and
diligence expected of a professional provider of custody or administrative services,
as applicable, to mutual funds and other institutional investors and act in good faith
and in accordance with generally applicable industry standards and practices in the performance
of its duties under this Agreement; provided, however, that
if State Street in its capacity as custodian is subject to a higher standard of care
under applicable Law, State Street shall be subject to such higher standard of care with
respect to the provision of Custody Services hereunder and such higher standard of care
shall be deemed to be part of this Agreement for such Custody Services. |
| 2.2 | Liability
for Losses. Subject to the limitations and exclusions of liability in this Agreement
(including with respect to Administration Services the terms on Schedule 2), State Street
will be liable for Losses suffered or incurred by the Client to the extent such Losses
are caused by State Street’s Negligence, bad faith,
reckless disregard, willful misconduct, willful default or fraud in the performance of
its duties and obligations under this Agreement. |
| 2.3 | Responsibility
for Subcustodians. In relation to the Custody Services, State Street will be liable
to the Client for the acts and omissions of its Subcustodians as if it had committed
such acts and omissions itself; provided that: |
| 2.3.1 | compliance with the
standard of care set out in Section E.2.1 will be assessed in accordance with the standards
and circumstances prevailing at the time of the act or omission in the local market or
jurisdiction in which the Subcustodian is providing the relevant Services; and |
| 2.3.2 | State Street will have
no liability for Losses resulting from the insolvency or other financial default of a
Subcustodian that is not an Affiliate of State Street except to the extent that such
Losses are caused by the failure of State Street to exercise
reasonable skill, care and diligence in the selection, monitoring and continued utilization
of the Subcustodian as required under Section B.13.2. |
| 2.4 | Responsibility
for Special Subcustodians. Notwithstanding the provisions of Section E.2.3 to the
contrary, State Street shall not be liable to the Client for Losses suffered or |
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incurred by the Client resulting from the acts or
omissions of a Special Subcustodian, except to the extent such Losses are caused by State Street’s
Negligence, bad faith, reckless disregard, willful misconduct, willful default or fraud. In the event of any such Losses, State
Street shall use commercially reasonable efforts to enforce such rights as it may have against any Special Subcustodian.
| 2.5 | Responsibility
for Delegates. State Street will be liable to the Client for the acts and omissions
of its Delegates as if it had committed such acts and omissions itself. |
| 2.6 | Force
Majeure. Neither Party will be in breach of this Agreement or liable for Losses arising
by reason of the occurrence of a Force Majeure Event that prevents, hinders or delays
it from or in performing its obligations under this Agreement, except, in the case of
State Street, to the extent that such Losses are attributable to its breach of its business
continuity obligations under this Agreement. |
| 2.7 | No
Liability for Certain Losses. State Street will not be liable to the Client for any
Losses to the extent they arise from or are caused by: |
| 2.7.1 | State Street acting
upon any (i) Proper Instruction or (ii) if a Proper Instruction is not required in a
particular circumstance, any other instruction, information, notice, request, consent,
certificate, instrument or other writing that State Street reasonably believes to be
genuine and to be signed or otherwise given by the Client or on behalf of a person authorized
by the Client to do so; |
| 2.7.2 | a delay in processing
or any failure to process any Proper Instruction to the extent permitted under Section
E.7, subject to the satisfaction of the conditions set out in that Section, as applicable; |
| 2.7.3 | the failure of the Client
or any person authorized by it to comply with the Client’s obligations under this
Agreement; or |
| 2.7.4 | any
other acts and omissions of the Client, any person authorized by the Client, or any third
party (other than Subcustodians, Special Subcustodians, Delegates or State Street Service
Providers), including any Third Party Agent, Market Participant, Authorized Data Source,
CSD, or Financial Market Utility; provided, however, with respect to a Third Party Agent,
Market Participant or Authorized Data Source except to the extent State Street has agreed
in writing to perform reconciliations, variance or tolerance checks or other specific
forms of data review under this Agreement as referenced in subsection 4.3 of this Section
E. |
| 2.8 | Other
Reliance. State Street shall have no liability in respect
of any Losses incurred or sustained by the Client arising from the performance of State
Street’s duties hereunder in reliance upon records and information, including Historic
Records, provided to it by the Client or any persons authorized by the Client, including
any Third Party Agents, Market Participants or Authorized Data Sources; provided, however,
with respect to records and information provided by a Third Party Agent, Market Participant
or Authorized Data Source after the Effective Date except to the extent State Street
has agreed in writing to perform reconciliations, variance or tolerance checks or other
specific forms of data review under this Agreement as referenced in subsection 4.3 of
this Section E. State Street shall also be entitled to reasonably rely on and may act
upon written advice of counsel on all matters and shall be without liability for any
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reasonably taken or omitted pursuant to such advice;
provided, however, that with respect to the performance of any action or omission of any action upon such advice, State Street
shall act within the Standard of Care. State Street shall promptly notify the Client of the request for and receipt of such advice.
| 2.9 | Mutual
Exclusion of Indirect and Other Losses. Notwithstanding any other provision of this
Agreement, neither Party will be liable to the other for: (i) indirect, consequential,
speculative, punitive or special Losses or (ii) loss of profit, revenue, opportunity,
business, anticipated savings, goodwill and damage to reputation, or Losses of any similar
kind; in each case whether or not a Party has been advised of or otherwise could have
anticipated the possibility of such Losses, except to the extent any such Losses cannot
be excluded or limited as a matter of Law applicable to either Party. |
| 3.1 | Error
Correction. If an error results from an act or omission of State Street in performing
the services under this Agreement, State Street may take such remedial action as it considers
appropriate under the circumstances, which may include effecting corrective transactions
involving the Client’s assets, where and to the extent reasonably necessary to
place the Client in the position (or its equivalent) it would have been had the error
not occurred. State Street will be responsible for Losses arising from its errors
in accordance with the terms of this Agreement and will be entitled to retain gains arising
from its errors or related remedial actions unless otherwise prohibited by Law. Where
an error results in a series of related Losses and gains, State Street will be entitled
to net gains against Losses when permitted by Law.. |
| 4 | Limits on the Scope of the
Services |
| 4.1 | No
Fiduciary or Implied Duties. State Street is responsible only for the duties it has
expressly undertaken under this Agreement and no other duties will be implied or inferred,
including any fiduciary duties, except to the extent such fiduciary duties may not be
disclaimed as a matter of Law. |
| 4.2 | Investment
and Other Risk, Client Compliance Matters. The Client bears the risk of investing
in Securities or other assets or holding cash denominated in any currency or holding
assets in a particular market, including investment risk and risk arising from the political,
regulatory, legal or financial infrastructure of such market or otherwise arising from
Local Market Practice. Except to the extent expressly specified as part of a service
on Schedule 0, Xxxxx Xxxxxx is not responsible for monitoring
or enforcing compliance by the Client or its Investment Manager(s) with any investment
or other restriction, guideline or requirement imposed by the Client’s constituent
documents or by contract or Law applicable to the Client in connection with investment
activity undertaken by or on behalf of the Client. The Client acknowledges and agrees
that to the extent State Street provides any monitoring of investments as part of a service
on Schedule 2, it is on an ex-post basis only against specific criteria agreed with the
Client. |
| 4.3 | Data
Accuracy. State Street has no responsibility for, or duty to review, verify or otherwise
perform any investigation as to the completeness, accuracy or sufficiency of, any data
or information provided by or on behalf of the Client, any persons authorized by the
Client, any Third Party Agent, any Market Participant or any Authorized Data Sources,
except to the extent State Street has agreed in writing to perform reconciliations, variance
or tolerance checks or other specific forms of data review under this Agreement. |
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4.4 | Title. State Street is not responsible for title or entitlement to, validity
or genuineness, including good deliverable form, of any asset received by State Street. |
| 4.5 | Proceedings.
State Street is not responsible for commencing legal or administrative proceedings
on behalf of the Client or relating to the assets held under this Agreement, including
in respect of the late payment of income or other payments due to the Client or amounts
payable on Securities in default if payment is refused after due demand and presentment. |
| 4.6 | Laws
Applicable to the Custodian or Subcustodian. Laws applicable to State Street or a
Subcustodian may from time to time prohibit or cause delays in State Street holding assets,
acting on Proper Instructions or providing the Services to the Client in the manner contemplated
by this Agreement. In such cases, State Street or Subcustodian will be entitled to comply
with the Law and, where permitted by such Law, the Parties will seek to resolve the situation
to the Parties’ mutual satisfaction. |
| 4.7 | Securities
on Loan. Asset servicing is not generally performed for securities on loan unless
otherwise noted in this Agreement or agreed by the Parties in writing. Provision
of such services with respect to securities on loan may be covered by a separate securities
lending or services agreement. |
| 5.1 | Indemnity
by Client. Subject to this Section E.5 and the exclusions and limitations of liability
elsewhere in this Agreement, including Section E.2.9, the Client will indemnify State
Street against any direct Losses incurred by State Street (including direct Losses incurred
by Subcustodians or Delegates for which State Street is liable) in connection with the
performance of its duties under this Agreement, including acting on Proper Instructions
and Losses incurred by virtue of being the holder of record of the Client’s Securities,
except, in each case, to the extent such Losses result from State Street’s Negligence,
bad faith, reckless disregard, willful misconduct, willful default or fraud (or that
of its Subcustodians or Delegates) in the performance of State Street’s duties
and obligations under this Agreement. |
| 5.2 | Indemnity
by State Street. Subject to this Section E.5 and the exclusions and limitations of
liability elsewhere in this Agreement (including Section E.2.7 and E.2.9 and with respect
to Administration Services, Schedule 2), State Street will indemnify the Client against
any direct Losses incurred by the Client, including Losses incurred by virtue of the
unauthorized access or disclosure of Client Information, in each case, to the extent
such Losses result from State Street’s Negligence, bad faith, reckless disregard,
willful misconduct, willful default or fraud (or that of its Subcustodians or Delegates)
in the performance of State Street’s duties and obligations under this Agreement. |
| 5.3 | Duty
to Mitigate. Each Party will use reasonable efforts to mitigate any Losses in respect
of which it claims indemnification under this Agreement. |
| 5.4 | Notice
of Claims. A Party seeking indemnification under this Section (“Indemnified
Party”) against a third-party claim (“Indemnified Claim”) will promptly
provide written notice of such claim to the Party obligated to indemnify (“Indemnifying
Party”). The failure to notify the Indemnifying Party will not relieve such Party
of any liability under |
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this Section, except to the extent that such failure
materially prejudices the investigation and/or defense of the Indemnified Claim.
| 5.5 | Right
to Control Third Party Claims. The Indemnifying Party will, at its own expense, be
entitled but not obligated to control and direct the investigation and defense of any
Indemnified Claim, except where State Street is the Indemnified Party and is seeking
indemnification from multiple customers for claims based on common facts or otherwise
related to the Indemnified Claim, in which case State Street will have the right to control
and direct the investigation and defense of such claim, at the expense of (i) the Indemnifying
Party or (ii) all of the customers from which indemnification is sought, including the
Indemnifying Party, pro rata, as appropriate. Where the Indemnifying Party controls and
directs the investigation of the defence of the Indemnified Claim, the Indemnified Party
may retain separate counsel at its own expense. If a conflict of interest exists between
the Parties with respect to the defense of such claim, the reasonable cost of separate
counsel will be an indemnified expense. |
| 5.6 | Settlement
of Claims. Neither Party may settle an Indemnified Claim without the consent of
the other Party, which consent will not be unreasonably withheld, conditioned or delayed,
provided that the Indemnifying Party will have the right to settle an Indemnified Claim
without the consent of the Indemnified Party if such settlement: |
| 5.6.1 | involves only the payment
of money; |
| 5.6.2 | fully and unconditionally
releases the Indemnified Party from any liability in exchange for the amount paid in
settlement; and |
| 5.6.3 | does not include any
admission of fault or liability in relation to the Indemnified Party. |
| 5.7 | Cooperation.
In all cases, each Party will, as applicable, provide reasonable cooperation and
assistance to the other Party and keep the other Party apprised as to the status of the
Indemnified Claim, including any discussions relating to the settlement of the claim
and the details of any settlement offer. |
| 6 | Obligations
of the Client |
| 6.1 | Provide
Information. The Client will provide or cause to be provided to State Street all
Client Information and such Historic Records, as may be reasonably necessary or as State
Street may reasonably request, in each case in a complete, accurate and timely manner,
in order to enable State Street to discharge its duties under this Agreement including,
but not limited to, the following: |
a. The Client’s Declaration
of Trust and By-laws (“Governing Documents”);
b. The Client’s currently
effective Registration Statement under the 1933 Act and the 1940 Act and each Prospectus and Statement of Additional Information
(“SAI”) relating to the Client or Portfolios and all amendments and supplements thereto as in effect from time to
time;
c. Copies of the resolutions
of the Board of Trustees of the Client (the “Board”) certified by the Client’s Secretary authorizing (1) the
Client to enter into this Agreement and (2) certain individuals on behalf of the Client to (a) give instructions to State Street
pursuant to this Agreement and (b) sign checks and pay expenses; and
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d. A copy of the investment
advisory agreement between the Client and its investment adviser.
To the extent practicable, the
Client will: (i) format the Historic Records and Client Information in a manner that permits its release and/or transmission to
State Street under applicable Law concerning data privacy and data protection or exempts such release and/or transmission to State
Street from such applicable Law; and (ii) provide the Historic Records and Client Information by direct electronic interface,
including taking all action which may be required by any Third Party Agent and Market Participant, or any other third party, to
enable State Street to have access to, and receive delivery of, such information by direct electronic interface.
| 6.2 | Anti-Money
Laundering, Financial Crimes and Anti-Bribery. |
| 6.2.1 | The Client will comply with
all applicable Sanctions Laws as well as anti-money laundering or other financial crime
legislation applicable to it and will provide State Street with all reasonably necessary
sanctions questionnaires, declarations and other documentation in order for State Street
to comply with its applicable anti-money laundering, sanctions or other financial crime
legislation policies. Client hereby represents that neither Client nor any of its subsidiaries,
trustees, directors or officers are (i) the target/subject of any sanctions administered
by the U.S. Department of the Treasury’s Office of Foreign Assets Control or the
U.S. Department of State or (ii) located, organized or resident in a country or territory
that is the target/subject of sanctions, including currently, the Crimea, Donetsk and
Luhansk regions of Ukraine, Cuba, Iran, North Korea and Syria. |
| 6.2.2 | State Street and its Affiliates
shall, in connection with the Services: (a) comply with all anti-money laundering or
other financial crimes legislation, Sanctions Laws as well as Laws relating to anti-bribery
and anti-corruption, in each case as applicable to State Street (“State Street
AML/Sanctions/Anti-Bribery Requirements”); (b) have and maintain in place throughout
the Initial Term and any Renewal Term policies and procedures reasonably designed to
ensure compliance with the State Street AML/Sanctions/Anti-Bribery Requirements and will
enforce such policies and procedures where appropriate; and (c) undertake commercially
reasonable efforts to have all Delegates and employees of State Street and its Affiliates
engaged in the provision of the Services comply with Section E.6.2.2(a). State Street
agrees that, unless precluded by (and subject to) applicable Law, it will notify as soon
as reasonably practicable the Client and its Investment Manager in writing of any non-compliance
with this Section E.6.2.2 as it relates to this Agreement. State
Street hereby represents that neither State Street nor any of its subsidiaries, directors
or officers are (i) the target/subject of any sanctions administered by the U.S. Department
of the Treasury’s Office of Foreign Assets Control or the U.S. Department of State
or (ii) located, organized or resident in a country or territory that is the target/subject
of sanctions, including currently, the Crimea, Donetsk and Luhansk regions of Ukraine,
Cuba, Iran, North Korea and Syria. |
| 6.3 | Pass
Through Representations. To the extent that State Street is required to give (or
is deemed to have given) any representation, warranty or undertaking to a third party
relating to the Client in accordance with normal market practice in connection with the
execution of transaction documents or the issuance or transmission of trade notifications,
confirmations and/or settlement instructions, whether using facsimile |
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transmission, industry messaging or matching utilities
and/or the proprietary software of Third Party Agents and Market Participants, CSDs or other Financial Market Utilities, the Client
will be deemed to have made such representation, warranty or undertaking to State Street.
| 6.4 | Operational
Requirements. The Client will adhere to the deadlines and other operational requirements
set out in the Client Publications, to facilitate meeting the requirements of CSD’s,
Third Party Agents and Market Participants. |
| 6.5 | Client
Review and Notification. In accordance with standard market practice, the Client
will employ commercially reasonable review and control measures with respect to information
provided by State Street under this Agreement and give State Street prompt written notice
of any suspected error or omission or the Client’s inability to access any such
information so as to prevent, stem or mitigate any Losses that may arise from the use
of inaccurate data or the inaccessibility of data. |
| 6.6 | Fees.
In consideration for the Services provided by State Street, the Client will pay the
Fees as agreed in a written fee schedule(s) or otherwise agreed in writing by the Parties
from time to time. The Fees and any other amounts payable under this Agreement are stated
exclusive of any sales, use, excise, value-added, services,
consumption, withholding or other similar tax that is assessed on the supply of the Services
under
an agreement. Any such tax will be
payable by the Client. |
The Client agrees promptly to reimburse State Street for any equipment and supplies specially ordered by or for the Client through
State Street and for any other expenses not contemplated by this Agreement that State Street may incur on the Client’s behalf
at the Client’s request or with the Client’s consent. The Client will bear all expenses that are incurred in its operation
and not specifically assumed by State Street. For the avoidance of doubt, Client expenses not assumed by State Street include,
but are not limited to: organizational expenses; cost of services of independent accountants and outside legal and tax counsel
(including such counsel’s review of the Registration Statement, Form N-CSR, Form N-PORT, Form N-PX, Form N-MFP, Form N-CEN,
proxy materials, federal and state tax qualification as a regulated investment company and other notices, registrations, reports,
filings and materials prepared by State Street under this Agreement); cost of any services contracted for by the Client directly
from parties other than State Street; cost of trading operations and brokerage fees, commissions and transfer taxes in connection
with the purchase and sale of securities for the Client; investment advisory fees; taxes, insurance premiums and other fees and
expenses applicable to its operation; costs incidental to any meetings of shareholders including, but not limited to, legal and
accounting fees, proxy filing fees and the costs of preparation (e.g., typesetting, XBRL-tagging, page changes and all other print
vendor and XXXXX charges, collectively referred to herein as “Preparation”), printing, distribution and mailing of
any proxy materials; costs incidental to Board meetings, including fees and expenses of Board members; the salary and expenses
of any officer, director\trustee or employee of the Client; costs of Preparation, printing, distribution and mailing, as applicable,
of the Client’s Registration Statements and any amendments and supplements thereto and shareholder reports; cost of Preparation
and filing of the Trust’s tax returns, Form N-1A, Form N-CSR, Form N-PORT, Form N-PX, Form N-MFP and Form N-CEN, and all
notices, registrations and amendments associated with applicable federal and state tax and securities laws; all applicable registration
fees and
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filing fees required under federal and state securities
laws; and the cost of fidelity bond and D&O/E&O liability insurance.
| 6.7 | Client
Publications. The Client will ensure that it provides State Street with and regularly
updates, as necessary, e-mail and other contact details for its representatives to enable
timely distribution and receipt of the Client Publications. |
| 7.1 | Dealings
in Cash and Securities. State Street will effect all transactions and dealings in
Cash and Securities under this Agreement and will provide the Administration Services
in accordance with Proper Instructions, subject to any other rights it may have under
this Agreement. |
| 7.2 | Appointment
of Authorized Persons. The Client and each Investment Manager will provide State
Street with a list of the names and (if applicable) signatures, of Authorized Persons
in a form agreed by the parties from time to time. State Street may rely upon the authority
of each Authorized Person until it receives written notice to the contrary from the Client
and has had a reasonable time to act on such notice. |
| 7.3 | Authentication
Procedures. State Street will implement Authentication Procedures. The Client acknowledges
that the Authentication Procedures are intended to provide a commercially reasonable
degree of protection against unauthorized transactions of certain types and are not designed
to detect errors. Any purported Proper Instruction received by State Street in accordance
with an Authentication Procedure will be taken to have originated from an Authorized
Person and will constitute a Proper Instruction under this Agreement for all purposes. |
| 7.4 | Security
Measures by Client. The Client is responsible for ensuring that appropriate security
measures are implemented to prevent unauthorized disclosure or use of any Authentication
Procedure made available to it or an Investment Manager in connection with this Agreement. |
| 7.5 | No
Duty to Verify. Except to the extent State Street is required to comply with Authentication
Procedures under Section E.7.3 above, State Street has no duty to verify that personnel
of the Client or any Investment Manager engaged in investment
activity are authorized to do so or that any instructions received by State Street are
duly authorized. |
| 7.6 | Decline/Delay
in Processing. State Street reserves the right to decline to process or delay the
processing of any purported Proper Instruction where: |
| 7.6.1 | State Street, in good
faith, determines that the instruction may not have been properly authorized; |
| 7.6.2 | the instruction is inaccurate,
incomplete or unclear; |
| 7.6.3 | the instruction conflicts
with the terms of this Agreement or any Law applicable to either Party, Local Market
Practice or State Street’s standard operating procedures; or |
| 7.6.4 | State Street has not
been given a reasonable time period to effect the instruction. |
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In these circumstances, State Street
will promptly seek authentication, clarification, correction or amendment of any Proper Instruction, as the case may be.
| 7.7 | Cancellation
and Amendment. State Street will use reasonable efforts to act on Proper Instructions
to cancel or amend previously issued Proper Instructions if: |
| 7.7.1 | State Street has not
already acted on the previously issued Proper Instructions; and |
| 7.7.2 | the Proper Instruction
to cancel or amend is received before the applicable deadlines specified from time to
time in the Client Publications or applicable event notification. |
State Street is not responsible
or liable if the request to cancel or amend cannot be satisfied.
| 7.8 | Oral
Instructions. If applicable, State Street may act on an oral instruction (given in
accordance with an agreed Authentication Procedure) before receipt of any written confirmation
and irrespective of whether any subsequent written confirmation conforms to the oral
instruction. |
| 7.9 | Conflicting
Claims. If there is a dispute or conflicting claim with respect to Securities or
Cash held by State Street under this Agreement, State Street is entitled to refuse to
act on a Proper Instruction of the Client or any Investment Manager in relation to the
particular Securities or Cash until either (i) the dispute or conflicting claims have
been finally determined by a court of competent jurisdiction or settled by agreement
between the conflicting parties, and State Street has received written evidence satisfactory
to it of such determination or agreement, or (ii) State Street has received an indemnity,
security or both, satisfactory to it and sufficient to hold it harmless from and against
any and all Losses which State Street may incur as a result of its actions. |
| 7.10 | Matters
Not Requiring Proper Instructions. The Client authorises State Street in the absence
of Proper Instructions to attend to all matters which may be necessary or appropriate
to discharge its duties and give effect to the terms of this Agreement, including the
execution, in the Client’s name or on its behalf, of any affidavits, certificates
of ownership and other certificates and documents relating to Securities. |
| 8.1 | Security.
To secure the full and timely satisfaction of all Secured Liabilities, the Client
hereby grants to State Street a security interest in and a right of retention, sale and
set off, as applicable, against (i) all of the Client’s Cash, Securities, and other
assets, whether now existing or hereafter acquired, in the possession or under the control
of State Street or its Subcustodians pursuant to this Agreement and (ii) any and all
cash proceeds of any of the above (collectively, the “Collateral”). |
| 8.2 | Rights
of State Street. In the event that the Client fails to satisfy in full any of the
Secured Liabilities as and when due and payable, State Street will have, in addition
to all other rights and remedies arising under this Agreement or under applicable Law,
the rights and remedies of a secured party under applicable Law. Without prejudice to
State Street’s other rights and remedies, State Street will be entitled, in each
case as and to the extent reasonably necessary to satisfy in full the Secured Liabilities
and any related transaction expenses, to (a) exercise its right of retention and withhold
delivery of any Collateral and otherwise refuse to act on any Proper Instruction relating
to such Collateral, (b) sell or otherwise realize any Collateral, and (c) set off the
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such sale or realization of Collateral and/or the
amount of any deposit balances standing to the credit of the Client in any Cash Account(s) against such Secured Liabilities.
| 8.3 | Exercise
of Rights. State Street may exercise its rights and remedies against the Collateral
in any manner (including by any method, at any time or place, and on any terms) as it
deems, in good faith, to be commercially reasonable under the circumstances, and will
use commercially reasonable efforts to effect any sale of Collateral at the prevailing
market price in the relevant market. Without limiting the foregoing, the Client acknowledges
that it will be commercially reasonable for State Street to, among other things: (i)
accelerate or cause the acceleration of the maturity of any fixed term deposits comprised
in the Collateral and (ii) effect any necessary currency conversions through its own
trading desk at such exchange rates as it determines in its reasonable discretion, which
rates may include a mark-up from the rates State Street receives on the interbank market.
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| 8.4 | Notice.
State Street will give the Client at least 24 hours’ notice prior to exercising
the right to sell or otherwise realize Collateral set forth above, provided that State
Street will not be obligated to give prior notice to the Client or delay exercising its
rights pending or after the provision of such notice if, in its reasonable judgment,
giving such notice or any such delay would prejudice its ability to obtain satisfaction
in full of the Secured Liabilities. |
| 9 | Confidentiality
and Use of Data |
| 9.1.1 | No Disclosure Without
Consent. Subject to Section E.9.2 and Section E.9.3, Confidential Information will
not be disclosed by the Receiving Party to any third party without the prior consent
of the Disclosing Party. |
| 9.1.2 | No limitations of obligations
under Agreement or at Law. Except as expressly contemplated by this Agreement, nothing
in this Section E.9 will limit the confidentiality and data-protection obligations of
State Street and its Affiliates under this Agreement and Law applicable to State Street. |
| 9.2 | Use
of Confidential Information and Data |
| 9.2.1 | Use of Confidential Information
and Data generally. Subject to this Section E.9.2 and Section E.9.3, all Confidential
Information, including Data, will be used by the Receiving Party solely for the purpose
of providing or receiving services, as applicable, pursuant to this Agreement or otherwise
discharging its obligations under this Agreement. |
| 9.2.2 | Use of Data for Indicators.
State Street and its Affiliates may use Data to develop, publish or otherwise distribute
to third parties certain investor behavior “indicators” or “indices”
that represent broad trends in the flow of investment funds into various markets, sectors
or investment instruments (collectively, the “Indicators”), but only so long
as (i) the Data is combined or aggregated with (A) information relating to other customers
of State Street and/or (B) information derived from other sources, in each case such
that the Indicators do not allow for attribution to or identification of such Data with
the Client, (ii) the Data represents less than a statistically meaningful portion of
all of the data used to create the Indicators and (iii) State Street publishes or otherwise
distributes to third parties only the Indicators and under no circumstance |
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publishes, makes available, distributes or otherwise
discloses any of the Data to any third party, whether aggregated, anonymized or otherwise, except as expressly permitted under
this Agreement.
| 9.2.3 | Economic benefit from
Indicators. The Client acknowledges that State Street may seek and realize economic
benefit from the publication or distribution of the Indicators. |
| 9.3 | Disclosure
of Confidential Information and Data |
| 9.3.1 | Disclosure of Confidential
Information to Representatives. The Receiving Party may disclose the Disclosing Party’s
Confidential Information without the Disclosing Party’s consent to its attorneys,
accountants, auditors, consultants and other similar advisors that have a reasonable
need to know such Confidential Information (“Representatives”), provided
such Confidential Information is disclosed under obligations of confidentiality that
prohibit the disclosure or use of such Confidential Information by the Representatives
for any purpose other than the specific engagement with the Receiving Party for which
the Representative has been retained and that are otherwise no less restrictive than
the confidentiality obligations contained in this Agreement. The Parties acknowledge
that use of Confidential Information by a Representative to represent its other clients
in dealing with the Disclosing Party would constitute a breach of this Section E.9.3.1.
Where State Street is the Receiving Party, “Representatives” will include
its Affiliates and Service Providers (as defined below). |
| 9.3.2 | Disclosure and Use of
Confidential Information by State Street. State Street
may disclose and permit use (as applicable) of Confidential Information of the Client
without the Client’s consent: |
| a. | to its Affiliates and any
of its third-party agents and service providers (“Service Providers”) in
connection with the discharge of State Street’s obligations under this Agreement
or the carrying out of any Proper Instruction, including in accordance with the standard
practices or requirements of any Financial Market Utility or in connection with the settlement,
holding or administration of Cash, Securities or other instruments; provided
such Confidential Information is disclosed under obligations of confidentiality that
are no less restrictive than the confidentiality obligations contained in this Agreement. |
| b. | to its Affiliates in connection
with the management of the businesses of State Street and its Affiliates, if related
to financial and operational management and reporting, risk management, legal and regulatory
compliance and client service management; provided such Confidential Information is disclosed
under obligations of confidentiality that are no less restrictive than the confidentiality
obligations contained in this Agreement. |
| 9.3.3 | Confidential
Information and Cloud Computing and Storage. Each Party may store Confidential Information
with third-party providers of information technology services, and permit access to Confidential
Information by such providers as reasonably necessary for the receipt of cloud computing
and storage services and related hardware and software maintenance and support. Such
Confidential Information may only be disclosed under obligations of confidentiality no
less restrictive than the confidentiality obligations contained in this Agreement and
stored subject to commercially reasonable administrative, technical, and physical safeguards. |
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| 9.3.4 | Disclosure
of Confidential Information to comply with law. The Receiving Party may disclose
the Disclosing Party’s Confidential Information to the extent such disclosure is: (i)
required to satisfy any legal requirement (including in response to court-issued orders,
investigative demands, subpoenas or similar processes or to satisfy the requirements
of any applicable regulatory authority); or (ii) requested by a regulatory authority
who has jurisdiction during the course of a regulatory review; provided that, in each
case, to the extent permitted by Law, the Receiving Party will notify the Disclosing
Party in order that the Disclosing Party has a reasonable opportunity, at its own expense,
to contest such disclosure or obtain a protective order. Notwithstanding the foregoing,
the Receiving Party expressly reserves the right to disclose such Confidential Information
whenever it is advised by counsel that it may be held liable for the failure to disclose
the Disclosing Party’s Confidential Information to any person under clauses (i)
and (ii) of this paragraph 9.3.4. |
| 9.3.5 | Harm of Unauthorized
Disclosure of Confidential Information. Each Party acknowledges that the disclosure
to any non-authorized third party of Confidential Information or the use of Confidential
Information in breach of this Agreement, may immediately give rise to continuing irreparable
injury inadequately compensable in damages at law, and in such cases the Receiving Party
agrees to waive any defense that an adequate remedy at law is available if the Disclosing
Party seeks to obtain injunctive relief against any such breach or any threatened breach. |
| 9.3.6 | Responsibility for Representatives
and Service Providers. Each Party will be responsible for any use or disclosure of
Confidential Information of the Disclosing Party in breach of this Agreement by its Representatives
and/or Service Providers, as applicable, as though such Party had used or disclosed such
Confidential Information itself. |
| 9.3.7 | No Disclosure to Custodian
Asset Manager Division. In no event will State Street allow representatives of its
asset management division or Affiliates engaged in asset management to have access to
or to use Confidential Information of the Client, including Data. |
| 10.1 | Term.
This Agreement will commence on the Effective Date and will continue, unless terminated
in accordance with this Section 10, for an initial term ending November 7, 2027 (the
“Initial Term”). After the expiration of the Initial Term, this Agreement
shall automatically |
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renew for successive
1-year terms (each, a “Renewal Term”) unless terminated in accordance with this Section 10.
| 10.2.1 | Prior Notice. The
Parties agree that: |
| 10.2.1.1 | the
Client may terminate this Agreement by giving not less than 30 days’ prior written
notice to State Street; and |
| 10.2.1.2 | State
Street may terminate this Agreement by giving not less than 120 days’ prior written
notice to the Client. |
| 10.2.2 | Immediate Effect. A
Party may terminate this Agreement with immediate effect at any time by written notice
to the other Party, if: |
| 10.2.2.1 | an
Insolvency Event occurs in relation to the other Party; |
| 10.2.2.2 | such
other Party is the Client and fails to pay any undisputed Fees as and when due and has
failed to cure such breach within 30 days of receipt of notice from State Street requesting
it to do so; or |
| 10.2.2.3 | such
other Party commits a material breach of an obligation under this Agreement and has failed
to cure such breach within 30 days of receipt of notice requesting it to do so. |
If
State Street terminates this Agreement pursuant to sub-sections 10.2.1 or 10.2.2, State Street will continue to provide the Services
for a period of up to 270 days subject to payment in full of any overdue undisputed Fees and prepayment of the Fees reasonably
expected to be incurred during such 270-day period, or such other financial assurance reasonably acceptable to State Street.
| 10.3 | Actions on Termination. |
| 10.3.1 | Successor Provider. Upon
termination of the Agreement, State Street will deliver the Portfolio to the successor
custodian designated by the Client in Proper Instructions. Where applicable, within a
reasonable period of time following notice of termination, the Client will appoint a
successor administrator with effect from the date of termination of this Agreement. |
| 10.3.2 | Remaining Portfolio. If
any part of the Portfolio remains in the possession of State Street or its Subcustodians
after the date of termination because the Client fails to designate a successor custodian
or otherwise, State Street may continue to provide the Services to the Client in consideration
of the Fees, as if the Agreement had not terminated. If no successor custodian has been
appointed on or before the termination of this Agreement, then State Street will have
the right to deliver to a bank or trust company, which is a “bank” as defined
in the 1940 Act, doing business in Boston, Massachusetts, or New York, New York, of its
own selection, all Cash and Securities of the Client then held by State Street, and to
transfer to an account of the bank or trust company all of the Securities of the Client
held in any CSD. The transfer will be on such terms as are contained in this Agreement
or as State Street may otherwise reasonably negotiate with the bank or trust company.
Any compensation payable to the bank or trust company, and |
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any cost or expense
incurred by State Street, in connection with the transfer will be for the account of the Client.
| 10.3.3 | Delivery of Administration records.
Upon termination of this Agreement, State Street will
deliver records regarding the Administration Services and any other information or documents
required to enable transition of provision of the Administration Services to the successor
administrator, provided
that State Street will be entitled to retain all or a portion of any of them to the extent
required by applicable Law or its internal record retention policies, in each case subject
to Section E.9 and State Street’s customary practices for backup and storage. |
| 10.3.4 | Payment of Fees. Upon
termination of this Agreement, Fees will become due and payable for the period to the
date of such termination, or, if later, the date agreed between the Parties, or with
respect to Custody Services to the date at which any part of the Portfolio held by State
Street has been fully transferred to a successor custodian or to the Client, other than
Fees subject to a bona fide good faith dispute. |
| 10.3.5 | Upon
Client’s written request in connection with the termination or expiration of this
Agreement, State Street shall (i) deliver to Client, or (ii) destroy (including rendering
unrecoverable), any Confidential Information of the Client in State Street’s possession
(or in the possession of its Representatives and Service Providers). With respect to
(ii) above, State Street will certify to the Client as to the destruction of such Confidential
Information. Notwithstanding the foregoing, State Street shall be permitted to retain
all or any portion of the Confidential Information, subject to the confidentiality obligations
specified in this Agreement, to the extent required by Law applicable to State Street
or regulatory authority or to the extent required by State Street’s internal policies
and in accordance with its customary practices for backup and storage. |
| 11 | Representations and Warranties |
| 11.1 | Each Party.
Each Party represents and warrants to the other that: (i) it has the power to enter into
and perform its obligations under this Agreement; (ii) it has duly executed this Agreement
by duly authorized persons so as to constitute valid and binding obligations of that
Party; and (iii) it will comply in all material respects with applicable Law. |
| 11.2 | Client. The
Client further represents and warrants to the Custodian that: (i) it is a statutory trust,
duly organized, existing and in good standing under the laws of its state of formation;
(ii) it is an investment company properly registered with the SEC under the 1940 Act;
(iii) the Registration Statement has been filed and will be effective and remain effective
during the term of this Agreement and the Client also warrants that as of the effective
date of this Agreement, all necessary filings under the securities laws of the states
in which the Client offers or sells its shares have been made; (iv) as of the close of
business on the effective date of this Agreement, the Client is authorized to issue unlimited
shares of beneficial interest; (v) no legal or administrative proceedings have been instituted
or threatened which would materially impair the Client’s ability to perform its
duties and obligations under this Agreement; (vi) its entrance into this Agreement shall
not cause a material breach or be in material conflict with any other agreement or obligation
of the Client or any law or regulation applicable to it; and (vii) it is the beneficial
owner of the assets comprising the Portfolio or is entitled to deal with the assets comprising
the |
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Portfolio under
this Agreement as if it were beneficial owner; and (viii) unless otherwise agreed, the Client acts as principal for the purposes
of this Agreement and not as agent for another person.
| 00.0 | Xxxxx
Xxxxxx. Xxxxx Xxxxxx further represents and warrants
to the Client that: (i) it holds such authorisations and licences as are necessary to
lawfully perform its obligations under this Agreement; (ii) it will seek to maintain
such authorisations and licenses for the term of this Agreement; (iii) no legal or administrative
proceedings have been instituted or threatened which would materially impair State Street’s
ability to perform its duties and obligations under this Agreement; and (iv) its entrance
into this Agreement shall not cause a material breach or be in material conflict with
any other agreement or obligation of State Street or any law or regulation applicable
to it. |
| 12 | Record Retention and Audit Rights |
| 12.1 | Records.
State Street will retain the records it is required
to maintain under this Agreement in accordance with the Law applicable to State Street. |
| 12.2 | Client
and Regulator Access. State Street will allow the Client
and the Client’s regulators or supervisory authorities to perform periodic on-site
audits as may be reasonably required to examine State Street’s performance of the
Services. |
| 12.3 | Frequency and Scope. For
inspections requested by the Client (such request will include reasonable advance notice)
and agreed to by Xxxxx Xxxxxx, Xxxxx Xxxxxx reserves the right to impose reasonable limitations
on the number, frequency, timing, and scope of such audits. |
| 12.4 | Limitations on Disclosure.
Nothing contained in this Section will obligate State
Street to provide access to or otherwise disclose: (i) any information that is unrelated
to the Client and the provision of the Services to the Client; (ii) any information that
is treated as confidential under State Street’s corporate policies, including,
without limitation, internal audit reports, compliance or risk management plans or reports,
work papers and other reports, and information relating to management functions; or (iii)
any other documents, reports, or information that State Street is obligated or entitled
to maintain in confidence as a matter of law or regulation. In addition, any access provided
to technology will be limited to a demonstration by State Street of the functionality
thereof and a reasonable opportunity to communicate with State Street’s personnel
regarding such technology. |
| 13 | Business
Continuity, Internal Controls and Information Security |
| 13.1 | Business
Continuity Plans. State Street will at all times maintain a business contingency
plan and a disaster recovery plan and will take commercially reasonable measures to maintain
and periodically test such plans. State Street will implement such plans following the
occurrence of an event which results in an interruption or suspension of the Services
to be provided by State Street. Upon reasonable request, State Street shall discuss with
the Client any business continuity/disaster recovery plan
of State Street and/or provide a high-level presentation
summarizing such plan. |
| 13.2 | Internal Controls Review
and Report. State Street will retain a firm of independent auditors to perform an
annual review of certain internal controls and |
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procedures employed by State Street in the provision
of the Services and issue a standard System and Organization Controls 1 or equivalent report based on such review. State Street
will provide a copy of the report to the Client upon request.
| 13.3 | Information
Security Systems and Controls. State Street will maintain commercially reasonable
information security systems and controls that are designed to (A) maintain the security and confidentiality of Client Data; (B) protect
such Data from unauthorized access or use; (C) protect such Data from reasonably foreseeable
threats or hazards to its security or integrity; and (D) meet legal and regulatory requirements
applying to State Street. A description of State Street’s information security
systems and controls is set forth on Appendix D (Client Information Security Schedule),
which is attached hereto and incorporated herein by reference. |
| 13.4 | Virus Detection. State
Street will at all times employ a current version of one of the leading commercially
available virus detection software programs to test the hardware and software applications
used by it to deliver the Services for the presence of any computer code designed to
disrupt, disable, harm, or otherwise impede operation. |
| 14.1 | Services Not Exclusive;
Acting in Various Capacities. State Street, its Subcustodians and their Affiliates
are part of groups of companies and businesses that, in the ordinary course of their
business: |
| 14.1.1 | provide a wide range of
financial services to many clients of different kinds; |
| 14.1.2 | engage in transactions
for their own account (including acting as banker as outlined in Section B.3.4 and acting
as foreign exchange counterparty as outlined in Section 12) or for the account of other
clients; |
which may result in actual, perceived or potential
conflicts between the interests of the Client and the interest of State Street, its Subcustodians and their Affiliates or between
the interests of clients. State Street maintains a conflicts of interest policy, and has implemented procedures and arrangements
to identify and manage conflicts of interest.
| 14.2 | Disclosure of Conflicts.
In connection with the matters outlined in Section E.14.1.1, State Street, its
Subcustodians and their Affiliates: |
| 14.2.1 | may do business with each
client on different contractual or financial terms; |
| 14.2.2 | will seek to profit and
is entitled to receive and retain profits and compensation in connection with such activities
without any obligation to account to the Client for the same; |
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| 14.2.3 | may act as principal in
its own interests, or as agent for its other clients; |
| 14.2.4 | may act or refrain from
acting based upon information derived from such activities that is not available to the
Client;
|
| 14.2.5 | are not under a duty to
notify or disclose to the Client any information which comes to their notice as a result
of such activities; and
|
| 14.2.6 | do not have an obligation
to consider, act in, or provide information to the Client in respect of, the interests
of the Client in connection with such activities, except to the extent (if any) expressly
agreed in writing with the Client under the contractual arrangements governing those
activities. |
State Street may (but is not required
to) make any disclosure or notification in connection with such activities to the Client via publication on XxXxxxxXxxxxx.xxx
or other notification mechanism.
| 14.3 | Notice. Unless otherwise
specified, all notices, requests, demands and other communications under this Agreement
(other than routine operational communications), will be in writing and will be taken
to have been given:
|
| 14.3.1 | when delivered by hand;
|
| 14.3.2 | on the next Business Day
after being sent by e-mail (unless the sender receives an automated message that the
e-mail has not been delivered); |
| 14.3.3 | on the next Business Day
after being sent by overnight courier service for next Business Day delivery; or
|
| 14.3.4 | on the third Business Day
after being sent by certified or registered mail, return receipt requested; |
in each case to the applicable
Party at the address or e-mail address specified on Schedule 4, or such other address or e-mail address as a Party may
specify by written notice from time to time.
| 14.4 | Waiver.
No failure on the part of any Party to exercise, and no delay on its part in exercising,
any right or remedy under this Agreement will operate as a waiver, nor will any single
or partial exercise of any right or remedy preclude any other or further exercise of
that right or remedy, or the exercise of any other right or remedy.
|
| 14.5 | Sole
Remedy. Subject to the right to seek relief under the specific circumstances expressly
permitted in this Agreement, each of State Street and the Client agrees that, to the
maximum extent permitted by law, a claim for breach of contract under and consistent
with the terms of this Agreement will be the sole and exclusive remedy available for
any and all matters arising from or in any way relating to this Agreement, the provision
of the Services or any conduct (including omissions and alleged conduct) relating to
the Agreement or provision of the Services, whether before, during or after the term
of this Agreement. Accordingly, to the maximum |
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| | | extent permitted by law, each of State
Street and the Client, on behalf of itself and its Affiliates, waives any and all other
rights and remedies that otherwise would be available to such party in law or equity. |
| | | |
| 14.6 | Assignment and Successors.
The terms of this Agreement are binding on the Parties’
representatives, successors and permitted assigns and this Agreement and any rights or obligations under this Agreement
may not be assigned or transferred without the prior written consent of the other Party. However, in the event that either Party
becomes the subject of an Insolvency Event, then such Party will have the right to assign or transfer its rights and obligations
under this Agreement to any entity to which the Party transfers its business and assets (including a bridge bank or similar entity)
and the other Party irrevocably consents to such assignment or transfer. |
| 14.7 | Entire Agreement. This
Agreement is the complete and exclusive agreement of the Parties regarding the Services
and supersedes, as of the Effective Date, all prior oral or written agreements, arrangements
or understandings between the parties relating to the Services. |
| 14.8 | Amendments. This
Agreement may be amended by written agreement between the Parties. |
| 14.9 | Counterparts and Electronic
Signatures. This Agreement may be executed in separate counterparts, each of which
will be an original, but which together will constitute one and the same agreement. Counterparts
may be executed in either original or electronically transmitted form (e.g., faxes or
emailed portable document format (PDF) form), and the Parties adopt as original any signatures
received in electronically transmitted form. This Agreement may be executed by electronic
signature (whatever form the electronic signature takes) and the Parties agree that this
method of signature is as conclusive of the intention to be bound by this Agreement as
if signed by the Parties’ manuscript signatures. |
| 14.10 | Severance. In the
event that any part of this Agreement will be determined to be void or unenforceable
for any reason, the rest of this Agreement will be unaffected (unless the essential purpose
hereof is substantially frustrated by such determination) and will be enforceable in
accordance with the rest of its terms as if the void or unenforceable part were not a
part of this Agreement.
|
| 14.11 | Survival. The provisions
of Sections B.9 (Tax Withholding and Tax Relief), D.2 (Standard of Care and Liability),
D.5 (Indemnity), D.6.6 (Obligations of the Client-Fees), D.8 (Creditors Rights), D.9
(Confidentiality and Use of Data) and D.10.3 (Actions on Termination) are continuing
obligations and will survive termination of this Agreement for any reason. |
| 14.12 | Governing
Law and Jurisdiction. This Agreement is governed by and interpreted in accordance
with the laws of the Commonwealth of Massachusetts, and any disputes which may arise
out of, under or in connection with this Agreement will be determined by the exclusive
jurisdiction of the Massachusetts courts. |
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| 14.13 | Remote Access. The
Remote Access Addendum attached as Appendix C is incorporated by reference into the Agreement.
The Client acknowledges that the data and information it will be accessing online from
State Street pursuant to the Remote Access Addendum is unaudited and may not be accurate
due to inaccurate pricing of securities, delays of a day or more in updating the account and other causes for which State Street will not
be liable to the Client. |
| 14.14 | Qualified Financial
Contracts. In the event that the Client is domiciled and organized outside of the
United States, such Client and State Street hereby agree for purposes of the Custody
Services provided hereunder to be bound by the terms of the QFC addendum attached hereto
as Appendix B. |
| 14.15 | The Parties; Several
Liability; Additional Clients |
| 14.15.1 | All references in this
Agreement to the “Client” are to each of the Funds listed on Appendix A,
individually, as if this Agreement were between the relevant individual Fund as the Client
and State Street. Any reference in this Agreement to “the Parties” shall
mean State Street and the individual Fund as the Client as to which the matter relates. |
| 14.15.2 | State Street understands
and agrees that the liabilities and obligations of each Fund under this Agreement are
several (and not joint nor joint and several) and that no Fund or Funds shall be liable
or responsible to State Street for the liabilities and obligations of any other Fund. |
| 14.15.3 | If any entity in addition
to those listed on Appendix A would like State Street to render Services under the terms
of this Agreement, the entity may notify State Street in writing. If State Street
agrees in writing to provide the services, Appendix A will be taken to be amended to
include such entity as a Client and that entity (together with State Street) will be
bound by all Sections of this Agreement. |
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Signed by the Parties:
| HSBC Funds |
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| By: |
/s/ Xxxxxxx Xxxxxxxxxxxx
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| Name: |
Xxxxxxx Xxxxxxxxxxxx
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| Title: |
President
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| Date: |
00/0/00
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| XXXXX XXXXXX BANK AND TRUST COMPANY |
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| By: |
/s/ Xxxxxxxxxxx X. Xxxxxxxxx
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| Name: |
Xxxxxxxxxxx X. Xxxxxxxxx
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| Title: |
Senior Vice President
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| Date: |
November 4, 2022
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Schedule 1
Definitions
In this Agreement:
“1933 Act” means the U.S. Securities
Act of 1933, as amended from time to time.
“1940 Act” means the U.S. Investment
Company Act of 1940, as amended from time to time.
“Affiliate” means, with respect
to any person, any other person Controlling, Controlled by, or under common Control with, such person at the time in question.
For these purposes. “Control” and its derivatives “Controlled” and “Controlling” mean, with
regard to any person: (i) the legal or beneficial ownership, directly or indirectly, of fifty percent (50%) or more of the issued
share capital or capital stock of that person (or other ownership interest, if not a corporation); (ii) the ability to control,
directly or indirectly, fifty per cent (50%) or more of the voting power in relation to that person; or (iii) the legal power
to direct or cause the direction of the general management and policies of that person, provided that where Control is being determined
with respect to a person that is a limited partnership, Control shall be determined by reference to the satisfaction of any of
the above tests with respect to the general partner of the limited partnership
“Alternative Assets” means derivatives,
real estate, commodities, private placements, loans, infrastructure holdings, private equity holdings, hedge fund holdings or
such other assets (i) not typically held in book-entry form and (ii) not typically held in accounts registered in the name of
State Street or a Subcustodian, in each case as determined by State Street.
“Authentication Procedures” means
the use of security codes, passwords, tested communications or other authentication procedures as may be agreed upon in writing
by Parties from time to time for purposes of enabling State Street to verify that purported Proper Instructions have been originated
by an Authorized Person, and will include a Funds Transfer and Transaction Origination Policy Agreement.
“Authorized Data Sources” means
third party sources of data and information utilized by State Street in the provision of the Services, including issuer and issuer
group data; security characteristics and classifications; security prices (OTC and exchange traded); ratings (issuer and issue);
exchange, interest, discount and coupon rates; corporate action, dividend, income and tax data; benchmark, index, composite and
indice related data (including values, constituents, weights and performance); and other reference and market data and information
necessary for the performance of the Services.
“Authorized Person” means a person
authorized to give Proper Instructions and otherwise act on the Client’s behalf in connection with this Agreement.
“Business Day” means a day on
which State Street or the relevant Subcustodian is open for business in the market or country in which a transaction or an action
by a Party takes place.
“Board” means, in relation to
a Client, the board of directors, trustees or other governing body of the Client.
“Cash” means cash in any currency
from time to time deposited with State Street or Subcustodian under this Agreement.
“Cash Account” has the meaning
given to it in Section B.3.1.
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“Client” means the party named
in the preamble. In the case of an investment entity that is structured as a series organization or umbrella scheme, all references
in this Agreement to the “Client” are to the individual series or scheme, as applicable.
“Client Information”
means all data, information, documents and instructions concerning the Client and its investment activity provided to, or
produced by, State Street by or on behalf of the Client on or after the date of this Agreement in connection with the performance
of the Services, including such data, information, documents and instructions provided by brokers, data sources, and other third
parties.
“Client Publications” means the
general client publications of State Street from time to time available to clients and their investment managers, including the
Investment Managers’ Guide, Client Guide, Guide to Custody in World Markets, and FX Client Guide.
“Collateral” has the meaning given
to it in Section E.8.1.
“Confidential
Information” means all non-public information provided by or on behalf of a party (the “Disclosing Party”)
to the other party (the “Receiving Party”), or collected by a Receiving Party, under or pursuant to this Agreement.
The terms and conditions of this Agreement (including any related fee schedule or arrangement) and any Fees will be treated as
Confidential Information as to which each Party is a Disclosing Party. Confidential Information will not include information that:
(i) is publicly available when provided or thereafter becomes publicly available, other than through a breach of this Agreement;
(ii) was known to the Receiving Party (without an obligation of confidentiality) prior to its disclosure; (iii) is independently
developed by the Receiving Party without the use of other Confidential Information; (iv) is rightfully obtained on a non-confidential
basis from a third party source.
“Contractual Settlement” has the
meaning given to it in Section B.4.2.
“Corporate Actions” means warrant
and option exercises, conversions, exchanges and other capital reorganizations, calls, odd lot tenders/credits, bonus rights,
subscription offers/rights, puts, maturities of securities, redemptions, mergers, tender or exchange offers, and rights exercises
and expirations. Corporate Actions do not include class actions.
“Corporate Actions Deadline Date”
has the meaning given to it in Section B.5.2.
“Covered Foreign Country” means
a country listed on Schedule A, which list of countries may be amended from time to time at the request of any Client and with
the agreement of the Foreign Custody Manager.
“CSD” or “Central Securities
Depository” means an entity or generally recognised book-entry or other settlement system or clearing house, central
clearing counterparty or agency, acting as a local securities depository, central securities depository or international securities
depository, the use of which is customary for securities settlement activities in the jurisdiction(s) in which it holds Securities
or Cash in connection with this Agreement, and through which State Street may transfer, settle, clear, deposit or maintain Securities
whether in certificated or uncertificated form and will include any services provided by any network service provider or carriers
or settlement banks used by a CSD.
“Data”
means any Confidential Information of the Client relating to its holdings, transactions or other information, including Client
Information, that State Street obtains with respect to the Client in connection with the provision of the Services under this
Agreement or any other agreement.
“Delegate” means
any agent, subcontractor, consultant and other third party, whether affiliated or unaffiliated with State Street. The term Delegate
does not include Subcustodians, CSDs, Authorized Data Sources, suppliers of information technology or related services, or Financial
Market Utilities.
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“Effective Date” has the meaning
given to it in the preamble.
“Eligible Foreign Custodian” has
the meaning set out in Section (a)(1) of Rule 17f-5, and any other entity (other than an Eligible
Securities Depository) that shall have been so qualified by exemptive order, rule or other appropriate action of the SEC or through
interpretive or no-action guidance from the SEC staff.
“Eligible Securities Depository”
has the meaning set out in section (b)(1) of Rule 17f-7, and any other entity that shall have been so qualified by exemptive order,
rule or other appropriate action of the SEC or through interpretive or no-action guidance from the SEC staff.
“Fees” means
the fees charged by State Street in consideration for providing the Services and the costs, expenses and disbursements of State
Street to be reimbursed by the Client, as agreed between the parties from time to time in a separate written fee schedule, or
as otherwise agreed in writing.
“Financial Market Utility”
means any multilateral system for transferring, clearing, and settling payments, securities, and other financial transactions
among or between financial institutions, including payment systems, central securities depositories, securities settlement systems,
central counterparties and trade repositories.
“Force Majeure Event” means any
event or circumstances beyond the reasonable control of State Street, including nationalization, expropriation, currency restrictions,
suspension or disruption of the normal procedures and practices, or disruption of the infrastructure, of any securities market
or CSD, interruptions in telecommunications or utilities, acts of war or terrorism, riots, revolution, acts of God or other similar
events or acts.
“Foreign Assets” means a Client’s
Securities or other investments (including non-U.S. Cash) for which the primary market is outside the United States, and any cash
and cash equivalents that are reasonably necessary to effect transactions in those investments.
“Foreign Custody Manager” has
the meaning set forth in section (a)(3) of Rule 17f-5.
“Foreign Securities System” means
an Eligible Securities Depository listed on Schedule B.
“Historic Records” means documents,
data and other information maintained by or on behalf of the Client prior to the date of this Agreement and utilized or relied
upon by State Street in the provision of the Administration Services, including the Governing Documents.
“Indemnified Claim”, “Indemnified
Party” and “Indemnifying Party” each have the meaning given to them in Section E.5.4.
“Insolvency Event” means the occurrence
of any of the following events in relation to any person: (i) the person generally does not pay its debts as such debts become
due, or admits in writing its inability to pay its debts generally, or makes a general assignment for the benefit of creditors;
or (ii) any proceeding is instituted by or against such person seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating
to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, or other similar official for it or for any substantial part of its property and, where any such proceeding
is instituted against (but not by) such person, such person does not promptly seek dismissal of such proceeding or its motion
or request to dismiss such proceeding is denied (whether or not on an initial, interim or final basis); or (iii) such person proposes
or
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takes any corporate action to authorize any of the
preceding actions or anything analogous to the foregoing events occurs in relation to such person under the laws of any jurisdiction.
“Investment Document” means
any agreement, subscription, assignment or other document evidencing in physical form an investment of the Client, or providing
for the ownership by the Client, in each case that is acceptable to State Street. For the avoidance of doubt, it does not
include any Security, instrument, certificate, title, agreement or other document that is accompanied by a stock power or instrument
of assignment, endorsed to State Street or in blank.
“Investment Manager” means each
person specified as such by the Client, including its agents and delegates.
“Law” means any statute, ordinance,
order, judgment, decree, subordinate legislation, Sanctions Laws, rule or regulation promulgated by any regulatory, administrative
or judicial authority or otherwise in force in any jurisdiction, applicable to a Party, that relates to the performance by such
Party of the Services or obligations under this Agreement. “Sanctions Laws” means any trade, financial or economic
sanctions law or regulation made by a relevant authority of the United States of America (including without limitation, by OFAC
and the U.S. Department of State), including U.S. secondary sanctions.
“Local Market Practice” means
the customary or established practices, procedures and terms in the jurisdiction or market where a transaction occurs, including
the rules and procedures of any exchange or over the counter market and any practical constraints that exist with respect to the
exercise of shareholder rights, realisation of entitlements or the sale, exchange, purchase, transfer or delivery of Cash or Securities.
“Losses” means all direct losses,
damages, claims, costs, expenses or other liabilities (including reasonable documented attorneys’ fees and other litigation
expenses actually incurred).
“Market Participant” means any
issuer, intermediary, exchange, transaction counterparty or other market participant.
“Negligence” means a breach by
State Street of the Standard of Care in the performance by State Street of its duties and obligations under this Agreement.
“Off Book Cash” has the meaning
given to it in Section B.3.2.
“On Book Cash” has the meaning
given to it in Section B.3.2.
“Parties” means the parties set
out at the beginning of this Agreement.
“Portfolio” means the Securities
and Cash delivered to and held by State Street which comprise the assets of the Client over which State Street provides the Services
pursuant to this Agreement.
“Proper Instructions” means instructions
(which may be standing instructions and which includes any security trade advice) received by State Street through an agreed Authentication
Procedure in any of the following forms:
| (i) | in writing given by an Authorized Person
including a facsimile transmission; |
| (ii) | in an electronic communication as may
be agreed upon between State Street and the Client in writing from time to time; or |
| (i) | by such other means as may be agreed
from time to time by State Street and the Client. |
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“Rule 17f-4, Rule 17f-5, and Rule17f-7”
means Rule 17f-4, Rule 17f-5 and Rule 17f-7 promulgated under the 1940 Act.
“Schedule” or “Schedules”
are all of the schedules referenced herein and attached to this Agreement.
“Secured Liabilities” means all
liabilities or obligations owed by the Client to State Street or its Affiliates relating to the Custody Services provided under
this Agreement, including: (a) the obligations of the Client to State Street or its Affiliates in relation to any advance of cash
or securities or any other extension of credit for any purpose; (b) the obligations of the Client to compensate State Street for
the provision of the Custody Services; and (c) the indemnity obligations of the Client to State Street under Section E.5.1 in
relation to the Custody Services provided under this Agreement.
“Securities” means securities
and such other similar financial assets and refers, as the context requires, either to the asset itself or to the means by which
a person’s claim to it is evidenced, including a security, security certificate, or a security entitlement, in each case
as State Street may from time to time accept into custody under this Agreement.
“Securities Account” has the meaning
given to it in Section B.2.2.1.
“Services” means the Custody Services,
Administration Services and Investment Analytics Services to be provided by State Street to the Client in accordance with this
Agreement.
“Special Subcustodian” has the
meaning given to it in Section B.13.3.
“Standard of Care” means the standard
of care set forth in Section E.2.1.
“Subcustodian” means any qualified
bank, credit institution, trust company or other entity appointed by State Street to perform safekeeping, processing and other
elements of the Custody Services, including Affiliates or non-Affiliates of State Street.
“Third
Party Agent” means any provider of services to the Client (other than State Street, a Subcustodian, Delegate or a State
Street Service Provider under this Agreement) including any Investment Manager, adviser or sub-advisor, distributor, broker, dealer,
transfer agent, administrator, accounting agent, audit firm, tax firm, or law firm.
“UCC” means the Uniform Commercial
Code of the Commonwealth of Massachusetts, as in effect from time to time.
“U.S.” shall mean the United States
of America.
“U.S. CSD” means a CSD authorized
by the U.S. Department of the Treasury or a “clearing corporation” as defined in Section 8-102 of the UCC.
Interpretation: Capitalised terms used in
this Agreement have the meanings given to them in this Schedule 1 unless otherwise defined. In this Agreement references to “persons”
will include legal as well as natural persons or entities, references importing the singular will include the plural (and vice
versa), use of the masculine pronoun will include the feminine, use of the terms “include”, “includes”
or “including” shall be deemed to be followed by the phrase “without limitation” and any specific examples
given following the use of such terms shall be illustrative and in no way limit the general meaning of the words preceding them
and numbered schedules, exhibits or Sections will (unless the contrary intention appears) be construed as references to such schedules
and exhibits hereto and Sections herein bearing those numbers and any sub-sections thereof. The schedules and exhibits hereto
are hereby incorporated herein by reference.
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Schedule 2
ADMINISTRATION SERVICES
| I. | Fund
Accounting Services as described in Schedule 2.1 attached hereto; |
| II. | Fund
Administration Treasury Services as described in Schedule 2.2 attached hereto; |
| III. | Fund
Administration Tax Services as described in Schedule 2.3 attached hereto; |
| IV. | Fund
Administration Legal Services as described in Schedule 2.4 attached hereto; |
| V. | Fund
Administration CFTC Services as described in Schedule 2.5 attached hereto; |
| VI. | Fund
Administration Money Market Fund Services as described in Schedule 2.6 attached hereto;
and |
| VII. | N-PORT
Services and N-CEN Services as described in Schedule 2.7 attached hereto. |
| 1. | Instructions and Advice; State Street as Independent Contractor.
At any time, State Street may apply to any officer of the Client or his or her designee for instructions or the independent accountants for the Client, with respect to any matter arising in connection with the Administration Services to be performed by State Street under this Schedule 2. |
State Street shall not be liable, and shall be indemnified by the Client, for
any action taken or omitted by State Street in good faith in reliance upon any such instructions or upon any paper or document
believed by it to be genuine and to have been signed by the proper person or persons authorized by the Client. Nothing in this
section shall be construed as imposing upon State Street any obligation to seek such instructions.
In providing the Administration Services, State Street shall be deemed to be an independent contractor and shall, unless otherwise
expressly provided herein or authorized by the Client from time to time, have no authority to act or represent the Client in any
way or otherwise be deemed an agent of the Client.
| 2. | Tax
Delegation Consent.
With respect to the Fund Administration Tax Services as set forth on Schedule 2.3 attached
hereto, the Client acknowledges and agrees to execute and deliver to State Street a tax
delegation consent in the form set forth as Schedule 2.3(i) hereto, with such changes
as State Street may require from time to time. While the parties anticipate that such
consent will be valid as long as the Agreement remains in effect, in the event the Client
revokes its consent at any time or does not provided its consent as required hereunder,
the Client acknowledges and agrees that State Street may, without liability or prior
notice, cease performing any or all of the Fund Administration Tax Services and may renegotiate
the fees State Street charges for such Fund Administration Tax Services.
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| 3. | Limitation
of Liability for Administration Services |
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State Street shall be responsible for the performance only of such duties as
are set forth in this Schedule 2 with respect to the Administration Services.
To the fullest extent permitted under applicable
Law, State Street’s cumulative liability for each calendar
year (a “Liability Period”), regardless of the form of action or legal theory, for a Loss suffered or incurred by
the Client arising out of or in connection with the Administration Services provided under this Agreement, will be limited to
and will not exceed a sum equal to two hundred percent (200%) of the total amount of Fees paid by the Client to State Street for
the relevant Administration Services during the preceding Compensation Period. “Compensation Period” shall mean the
calendar year ending immediately prior to each Liability Period in which the event(s) giving rise to State Street’s liability
for that period have occurred. Notwithstanding the foregoing, the Compensation Period for purposes of calculating the annual cumulative
liability of State Street for the Liability Period commencing on the Effective Date and terminating on December 31, 2022 shall
be the Effective Date through December 31, 2022, calculated on an annualized basis, and the Compensation Period for the Liability
Period commencing on January 1, 2023 and terminating on December 31, 2023 shall be the Effective Date through December 31, 2022,
calculated on an annualized.
| 4. | Compliance
with Governmental Rules and Regulations; Records.
The Client assumes full responsibility for complying with all securities, tax, commodities
and other Laws, rules and regulations applicable to it. The Client will provide any required
notice to and/or obtain all consents and approvals from regulatory bodies (including
self-regulatory or industry organizations) and other third parties, which may be necessary
for the appointment of State Street as administrator under this Agreement (including
any consent or approval for State Street’s right to appoint or remove Delegates),
and for any cross border transmissions of Client Information or Historic Records to,
or by, State Street that may be required in connection with the provision of the Administration
Services. |
In compliance with the requirements of Rule 31a-3 under the 0000 Xxx, Xxxxx
Xxxxxx agrees that all records which it maintains for the Client regarding the Services shall at all times remain the property
of the Client, shall be readily accessible during normal business hours, and shall be promptly surrendered upon the termination
of the Agreement as set forth in Section 10.3.3. of the Agreement or otherwise on written request. State Street further agrees
that all records that it maintains for the Client regarding the Services pursuant to Rule 31a-1 under the 1940 Act will be preserved
for the periods prescribed by Rule 31a-2 under the 1940 Act unless any such records are earlier surrendered as provided above.
Such records may be surrendered in either written or machine-readable form, at the option of State Street. In the event that State
Street is requested or authorized by the Client, or required by subpoena, administrative order, court order or other legal process,
applicable Law or regulation, or required in connection with any investigation, examination or inspection of the Client by state
or federal regulatory agencies, to produce the records of the Client regarding the Services or State Street’s personnel
as witnesses or deponents, the Client agrees to pay State Street for State Street’s time and expenses, as well as the fees
and expenses of State Street’s counsel incurred in such production.
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Schedule 2.1
Fund Accounting Services
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Maintain
market value of assets in each Fund at the frequency agreed with the Client, using the Authorized Data Sources and in accordance
with the methodologies and tolerance checks agreed with the Client. |
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· |
Calculate market value of assets in each
Fund at the frequency agreed with the Client, using the Authorized Data Sources and in accordance with the methodologies and
tolerance checks agreed with the Client. |
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Notify
the Client of any securities that cannot be priced in accordance with the agreed methodology and Authorized Price Sources
and provide stale price report whenever any security cannot be priced for the period agreed with the Client (e.g. 5 consecutive
days). |
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Record the accrual of income to be received
by each Fund and the receipt of all income by each Fund. |
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Amortize the fixed income assets for
each Fund in accordance with the amortization methodology agreed with the Client. |
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Accrue expenses for each Fund in accordance
with methodology agreed with the Client, including accruals for tax provisions and management / performance fees and fees
for all other service providers (as relevant). |
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Review
any significant differences between accruals and payments. |
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Record investment transactions (e.g.
purchases, sales and transfers) for each Fund as notified by the Client or its investment manager/other agents (including
transactions in derivatives, foreign currencies and unlisted pooled funds, as relevant). |
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Record capital activity as required for
each Fund. |
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Record
the impact of corporate actions on the securities in each Fund, using information received from the Client, its custodian/broker
and/or standard commercial services. |
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Calculate the net asset value of each
Fund and net asset value per share or unit of ownership (as applicable) of each Fund in accordance with the valuation methodology
agreed with the Client and at the frequency agreed with the Client. |
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Perform book basis profit and loss allocations
for partnership structures. |
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Calculate/review/publish/distribute
NAV information and dividend factors as agreed with the Client. |
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Perform agreed reconciliations of the
accounting books and records to the records maintained by the investment manager or the Client’s other service providers
and counterparties (e.g., custodians, prime brokers, investment managers, banks etc.) at the frequency agreed with the Client. |
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Work with relevant third party and/or
the Client to resolve any identified exceptions. |
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Determine
the outstanding receivables and payables for all (1) security trades, (2) Fund share transactions and (3) income and expense
accounts. |
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Record
value of derivatives for each Fund in the accounting books and records from Authorized Data Sources and reconcile the derivatives
so recorded to the positions reported by brokers/counterparties. |
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If applicable,
calculate and record initial margin and variation margin in the accounting books and records and reconcile to initial margin
and variation margin reported by brokers/counterparties. |
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Compute, as appropriate,
each Fund’s dividend payables and dividend factors. |
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· |
Assist the Funds’
transfer agent with respect to the payment of dividends and other distributions to Shareholders. |
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Record amounts paid
under Rule 12b-1 Plans/Shareholder Services Plans/Shareholder Service Agreements. |
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Determine and report
unrealized appreciation and depreciation on securities held in variable net asset value Funds. |
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Provide such periodic
reports as the parties shall agree upon, as set forth in a separate schedule. |
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Calculate turnover
and expense ratio. |
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Prepare schedule
of capital gains and losses. |
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Provide daily cash
report. |
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Provide unrealized
gain/loss report. |
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Compute, as appropriate, each Fund’s
net income and capital gains, dividend payables, dividend factors, 7-day yields, 7-day effective yields, 30-day yields, and
weighted average portfolio maturity (and other yields or standard or non-standard performance information as mutually agreed
upon). |
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· |
Update
Fund accounting system to reflect rate changes, as received from a Fund’s investment adviser or authorized pricing service,
on variable interest rate instruments. |
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Make
available, via State Street’s online mystatestreet portal, portfolio holdings for advisor reconciliation and posting
to Fund website. |
Information Classification: Limited Access
Schedule 2.2
Fund Administration Treasury Services
| | a. | Prepare for the review by designated officer(s) of the Client financial
information regarding the Fund(s) that will be included in the Client’s semi-annual and annual
shareholder reports, and other quarterly reports (as mutually agreed upon), including tax footnote disclosures
where applicable; |
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| b. | Coordinate
the audit of the Client’s financial statements by the Client’s independent
accountants, including the preparation of supporting audit workpapers and other schedules; |
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| c. | Prepare
for the review by designated officer(s) of the Client financial information required
by Form N-1A, proxy statements and such other reports, forms or filings as may be mutually
agreed upon; |
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| d. | Provide
support for new fund development and filings, including pro forma expense projections
as well as any expense information and Fund NAV performance information for the initial
registration statement filing, in each case, based on estimates and assumptions provided
by the Client; |
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| e. | Prepare
for the review by designated officer(s) of the Client annual fund expense budgets, perform
accrual analyses and roll-forward calculations and recommend changes to fund expense
accruals on a periodic basis, arrange for payment of the Client’s expenses, review
calculations of fees paid to the Client’s investment adviser, custodian, fund accountant,
distributor and transfer agent, and obtain authorization of accrual changes and expense
payments; |
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| f. | Provide
periodic testing of the Fund(s) with respect to compliance with the Internal Revenue
Code’s mandatory qualification requirements, the requirements of the 1940 Act and
limitations for the Fund(s) contained in the Registration Statement for the Fund(s) as
may be mutually agreed upon, including, as agreed to by the Parties, periodic compliance
reporting to the designated officer(s) of the Client as well as preparation of Board
compliance materials; |
| | | |
| g. | Provide
periodic risk-based and other compliance testing reports to the Funds’ CCO and
provide such other information as reasonably requested to the Funds’ CCO in connection
with his/her responsibilities under Rule 38a-1 under the 1940 Act; |
| | | |
| h. | Prepare
and furnish total return performance information for the Fund(s), including such information
on an after-tax basis, calculated in accordance with applicable U.S. securities laws
and regulations, as may be reasonably requested by Client management; |
| | | |
| i. | Prepare
and disseminate vendor survey information; |
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| j. | Prepare
and coordinate the filing of Rule 24f-2 notices, including coordination of payment; |
| | | |
| k. | Provide
sub-certificates in connection with the certification requirements of the Xxxxxxxx-Xxxxx
Act of 2002 with respect to the services provided by the Administrator; |
| | | |
| l. | Maintain
certain books and records of the Client as required under Rule 31a-1(b) of the 1940 Act,
as may be mutually agreed upon; and |
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| m. | Monitor
expense limitations of the Client. |
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SCHEDULE 2.3
Fund Administration Tax Services
| | a. | Prepare annual tax basis provisions for both excise and income tax purposes,
including wash sales and all tax financial statement disclosure; |
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| b. | Prepare the Funds’ annual federal,
state, and local income tax returns and extension requests for review and for execution
and filing by the Client’s independent accountants and execution and filing by
the Client’s treasurer, including Form 1120-RIC, Form 8613 and Form 1099-MISC; |
| | | |
| c. | Prepare annual shareholder reporting
information relating to Form 1099-DIV; |
| | | |
| d. | Preparation of financial information
relating to Form 1099-DIV, including completion of the ICI Primary and Secondary forms,
Qualified Dividend Income, Dividends Received Deduction, Alternative Minimum Tax, Foreign
Tax Credit, United States Government obligations; |
| | | |
| e. | Review annual minimum distribution
calculations (income and capital gain) for both federal and excise tax purposes prior
to their declaration; and |
| | | |
| f. | Participate in discussions of potential
tax issues with the Funds and the Funds’ audit firm. |
Tax services, as described in this Schedule,
do not include identification of passive foreign investment companies, qualified interest income securities or Internal Revenue
Code Section 1272(a)(6) tax calculations for asset backed securities.
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SCHEDULE 2.3(i)
CONSENT TO DISCLOSE TAX RETURN INFORMATION
Federal law prohibits
our disclosing, without your consent, your federal tax return information to third parties or our use of that information for purposes
other than the preparation of your return.
Subject to the terms and
conditions of the Master Services Agreement dated [ ] (the “Administration Agreement”) between STATE STREET BANK
AND TRUST COMPANY (“we” or “State Street”) and [Client Name] (“you” or the “Customer”),
we may subcontract portions of our Fund Administration Tax Services (the “Tax Services”) to State Street affiliates
and/or other subcontractors. By signing below, you hereby authorize us to provide any and all information, including your entire
tax return information for all past, present, and future years, that we receive in connection with this engagement to the State
Street affiliates listed on Schedule 2.3(ii), for the purpose of providing the Tax Services set forth in the Administration Agreement
and for related administration and regulatory compliance purposes.
Your consent
will be valid as long as the Administration Agreement remains in effect. Notwithstanding the foregoing, you may revoke your consent
with regards to Tax Services at any time by providing written notice to us. By signing below, you agree that if you revoke your
consent we may refuse to perform Tax Services and/or alter the fees we charge for such Tax Services.
In lieu of consenting
to this disclosure, you have the right to request a more limited disclosure of tax return information. In the event that the service
model changes as a result of your revocation or limitation on this consent, you agree to negotiate an equitable adjustment to the
applicable fee schedule in good faith.
[CLIENT]
Information Classification: Limited Access
SCHEDULE 2.3(ii)
| · | State Street Corporate Services Mumbai Private Limited |
| · | State Street Technology (Zhejiang) Company Limited |
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SCHEDULE 2.4
Fund Administration Legal Services
| a. | Assist the Client in preparing for and conducting Board of
Trustees (the “Board”) meetings by: (1) preparing the notices, agendas,
resolutions and routine updates and summaries for all requested Board and committee meetings, (2) making presentations to and posting
routine reports provided by the Client, State Street or third parties for inclusion in the Board and committee meetings where appropriate
or upon reasonable request, (3) attending Board and committee meetings and preparing minutes for such Board and committee meetings,
(4) coordinating Board book production and distribution (including through Diligent) for all requested Board and committee meetings,
and (5) performing such other Board meeting functions as agreed by the Parties; |
| | | |
| b. | Prepare applicable materials for filing with the SEC, including
the following documents: Form N-CSR, Form N-PX and all amendments to the Registration Statement, including updates of the Prospectus
and SAI for the Fund(s) and any supplements to the Prospectus and SAI for the Fund(s); |
| | | |
| c. | Assist the Client in preparing for and conducting shareholder
meetings by: (1) preparing the notices, agendas and resolutions for all requested shareholder
meetings, (2) attending the shareholder meetings and preparing minutes of such meetings, (3) preparing for filing with the SEC
proxy statements and related solicitation materials, (4) preparing draft shareholder meeting scripts, and (5) providing
consultation on proxy solicitation matters; |
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| d. | Maintain general Board calendars and regulatory filings calendars; |
| | | |
| e. | Maintain copies of the Client’s Governing Documents
(and any amendments thereto), corporate records, minutes, material agreements, policies and procedures and such other records reasonably
requested by the Client and prepare, at the direction of the Client, amendments to the Client’s Governing Documents and file
as necessary; |
| | | |
| f. | Assist in developing guidelines and procedures to improve
overall compliance by the Client; |
| | | |
| g. | Assist the Client in the handling of routine regulatory examinations
of the Client and work closely with the Client’s legal counsel in response to any non-routine regulatory matters; |
| | | |
| h. | Maintain awareness of significant emerging regulatory and
legislative developments that may affect the Client, update the Board and the investment adviser on those developments and provide
related planning assistance where requested or appropriate; |
| | | |
| i. | Prepare and coordinate each Fund’s filings of Form N-RN; and |
| | | |
| j. | Coordinate with insurance providers, including soliciting bids for Directors & Officers/Errors & Omissions (“D&O/E&O”) insurance and fidelity bond coverage,
file fidelity bonds with the SEC and make related Board presentations. |
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SCHEDULE 2.5
Fund Administration CFTC Services
Subject to the authorization and direction of
the Client, State Street will provide the CFTC Services set forth on Schedule 2.5 (the “CFTC Services”) to assist the
Funds, the Client and/or its affiliates in complying with applicable CFTC compliance testing and reporting requirements.
Limitation of Responsibilities. With regard
to the CFTC Services, State Street’s responsibilities are limited to the provision of the CFTC Services described in Schedule
2.5. These responsibilities do not include: (i) determination of the Client’s status as a Commodity Pool Operator (a “CPO”),
(ii) the determination of the Client’s eligibility for an exclusion from classification as a CPO, or (iii) the completion
and filing of the Form CPO-PQR. Where the Client uses the Services to comply with any law, representation, agreement or other
obligation, State Street makes no representation that any such Services complies with such law, representation, agreement, or
other obligation, and State Street has no obligation of compliance with respect thereto. The Client should contact its legal counsel
for specific guidance on compliance with the Commodity Exchange Act of 1936, as amended (the “Commodity Exchange Act”).
Unless the Client currently subscribes to fund administration legal services with State Street, the CFTC Services do not include
assisting the Client with preparation of annual enhanced prospectus disclosures. Assistance with the registration of an entity
as a CPO is not included as a CFTC Service.
Responsibilities of the Client. The Client
is responsible for providing authorization and direction to State Street with respect to the CFTC Services. The Client is responsible
for arranging, in each case where appropriate, for the review and comment by Client’s independent accountants and legal counsel
of CFTC financial information, reports and any filings prepared by State Street. In addition, the Client is solely responsible
for determining Client’s status as a CPO, and/or Client’s eligibility for an exclusion from classification as a CPO.
The Client shall be responsible for accurately
and timely supplying State Street with complete financial, organizational and other information, and/or arranging for the provision
of such information from third parties, as may be required in order for State Street to provide the CFTC Services, and any information
requested by State Street in connection with the foregoing. State Street is authorized and instructed to rely upon the information
it receives from the Client or any third party (including, without limitation, the Client’s third party administrator(s),
custodian(s), prime broker(s), and other service providers to the Client) authorized by the Client to provide such information
to State Street and on any instructions received from the Client. The Client and any third party from which State Street shall
receive or obtain certain records, reports and other data included in the CFTC Services provided hereunder are solely responsible
for the contents of such information, including, without limitation, the accuracy thereof, and State Street shall be entitled to
rely on such records, reports and other data as provided to State Street by the Client or any third party, and any instructions
provided to State Street by the Client, and shall have no responsibility for making any interpretive determinations with respect
thereto. State Street has no responsibility to review, confirm or otherwise assume any duty with respect to the accuracy or completeness
of any such information, or instructions, and shall be without liability for any loss or damage suffered by the Client as a result
of State Street’s reliance on and utilization of such information or instructions believed by it to be genuine and to have
been properly issued by or on behalf of the Client or such third party. State Street shall have no responsibility and shall be
without liability for any loss or damage caused by the failure of the Client or any third party to provide it with the information
required.
CFTC financial reporting, compliance testing and exclusion
filing services
Subject to the authorization and direction
of the Client and, in each case where appropriate, the review and comment by Client’s independent accountants and legal counsel,
and in accordance with procedures that may be established from time to time between the Client and Xxxxx Xxxxxx, Xxxxx Xxxxxx will:
| Information Classification: Limited Access |
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| i. | Perform
[daily][weekly][monthly] testing for compliance with the CFTC initial margin test and
the CFTC net notional test; and |
| | | |
| ii. | As
applicable, prepare the Client’s initial and annual Rule 4.5 notice of exclusion
from classification as a CPO under the Commodity Exchange Act and file such initial and
annual notice with the National Futures Association. |
Information Classification: Limited Access
SCHEDULE 2.6
Fund Administration Money Market Fund
Services
| a. | Prepare
for posting on the Fund’s website daily each money market fund’s market-based
NAVs; |
| | | |
| b. | Prepare
for posting on the Fund’s website each money market fund’s daily liquid assets
and weekly liquid assets; |
| | | |
| c. | Prepare
for posting on the Funds’ website each money market fund’s inflows/outflows; |
| | | |
| d. | Prepare
for posting on the Fund’s website each money market funds’ monthly schedule
of portfolio investments; |
| | | |
| e. | Subject
to the mutual agreement of the Client and State Street, prepare for posting on the Fund’s
website such other information reasonably requested by the Client, if required by applicable
Law; |
| | | |
| f. | Prepare and coordinate each money
market fund’s monthly filing of Form N-MFP; |
| | | |
| g. | Provide periodic testing of the Fund
with respect to compliance with certain Rule 2a-7 diversification requirements, including
aggregation of affiliates testing, the 10% or 15% basket test and asset backed securities
testing; and |
| | | |
| h. | Prepare and coordinate each Fund’s filings of Form N-CR.
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Schedule
2.7
Fund Administration
Form N-PORT (the “Form N-PORT Services”) and Form N-CEN (the “Form N-CEN Services”) Support Services (collectively,
the “Form N-PORT and Form N-CEN Support Services”) and Liquidity Risk Measurement Services and Quarterly Portfolio
of Investments Services (collectively, with the Form N-PORT and Form N-CEN Support Services, and for purposes of this Schedule
2.7, the “Services”)
| (a) | Standard N-PORT and N-CEN Reporting Solution (Data and Filing): |
| | | |
| · | Subject to the receipt of all required data, documentation, assumptions, information and assistance
from the Client (including from any third parties with whom the Client will need to coordinate in order to produce such data, documentation,
and information), State Street will use required data, documentation, assumptions, information and assistance from the Client,
State Street’s internal systems and, in the case of Clients not administered by State Street or its affiliates, third party
Client administrators or other data providers, including but not limited to Third Party Data (as defined below) (collectively,
the “Required Data”) to perform necessary data aggregations (including any applicable aggregation of risk metrics) and
calculations and prepare, as applicable: (i) a monthly draft Form N-PORT standard template for review and approval by the Client
and (ii) annual updates of Form N-CEN for review and approval by the Client. |
| | | |
| · | Each Client acknowledges and agrees that it will be responsible for reviewing and approving each
such draft N-PORT template and N-CEN update. |
| | | |
| · | Following review and final approval by the Client of each such draft Form N-PORT template and N-CEN
update, and at the direction of and on behalf of each Client, State Street will (i) produce an .XML formatted file of the completed
Form N-PORT and Form N-CEN and (ii) electronically submit such filing to the SEC. |
The Form N-PORT Services
will be provided to each portfolio (the “Portfolio”) of the Client(s) as set forth in the attached Annex 1,
which shall be executed by State Street and the Client(s). The Form N-CEN Services will be provided to each Client as set forth
in the attached Annex 1. Annex 1 may be updated from time to time upon the written request of the Client and by virtue
of an updated Annex 1 that is signed by both parties.
| (b) | Quarterly Portfolio of Investments Services: |
| | | |
| · | Subject to the receipt of all Required Data, and as a component of the Form N-PORT and Form N-CEN
Support Services, State Street will use such Required Data from the Client, State Street’s internal systems and other data
providers to prepare a draft portfolio of investments (the “Portfolio of Investments”), compliant with GAAP, as of the
Client’s first and third fiscal quarter-ends. |
| | | |
| | · | Following
review and final approval by the Client of each such draft Portfolio of Investments, and at the direction of and on behalf of each
Client, State Street will attach each Portfolio of Investments to the first and third fiscal quarter-end N-PORT filing that is
submitted electronically to the SEC. |
| | | |
| (c) | Liquidity Risk Measurement Services : |
| | | |
| · | State Street will provide the following liquidity risk measurement services (“Liquidity Risk
Measurement Services”) to the Client: |
| | | |
| · | As applicable, State Street will provide each Client with Liquidity Risk Measurement Services that
will provide calculation of security level exposure, characteristics, |
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liquidity analytics, including days
to liquidate, liquidity scores, fixed income cost to liquidate, stress testing and redemption flow analysis. Liquidity analytics
will be calculated daily, weekly, or monthly (as per written agreement between State Street and each Client) and, as applicable,
aggregated monthly for purposes of inclusion in State Street’s standard N-PORT filing template. Services also will include
State Street’s standard liquidity Client profile report and online access to State Street’s dynamic risk reporting
tools via xx.xxxxxxxxxxx.xxx which enable Clients to analyze and generate risk reporting.
| | | |
| · | The Liquidity Risk Measurement Services will be provided to each Portfolio of the
Client(s) as set forth in the attached Annex 1, which shall be executed by State Street and the Client(s). Annex 1
may be updated from time to time upon the written request of the Client and by virtue of an updated Annex 1 that is signed
by both parties. |
Client Duties, Representations and Covenants
in Connection with (i) Form N-PORT and Form N-CEN Support Services, (ii) Liquidity Risk Measurement Services, and (iii) Quarterly
Portfolio of Investments Services.
The provision of the Services set forth in this
Schedule 2.7 to each Client by State Street is subject to the following terms and conditions:
| | | |
| | 1. | The parties acknowledge and agree on the following matters: |
| | | |
The Services depend, directly or indirectly,
on: (i) Required Data and (ii) information concerning the Client or its affiliates or any Fund, pooled vehicle, security or other
investment or portfolio regarding which the Client or its affiliates provide services or is otherwise associated (“Client
Entities”) that is generated or aggregated by State Street or its affiliates in connection with services performed on the
Client’s behalf or otherwise prepared by State Street (“State Street Data,” together with Required Data and Third
Party Data (as defined below), “Services-Related Data”). State Street’s obligations, responsibilities and liabilities
with respect to any State Street Data used in connection with other services received by the Client shall be as provided in such
respective other agreements between State Street or its affiliates and the Client relating to such other services (e.g., administration
and/or custody services, etc.) from which the State Street Data is derived or sourced (“Other Client Agreements”).
Nothing in this Agreement or any service schedule(s) shall limit or modify State Street’s or its affiliates’ obligations
to the Client under the Other Client Agreements.
In connection with the provision of the Form
N-PORT and Form N-CEN Support Services, Liquidity Risk Measurement Services, and Quarterly Portfolio of Investments Services by
State Street, the Client acknowledges and agrees that it will be responsible for providing State Street with any information requested
by State Street, including, but not limited to, the following:
(A) Arranging for the regular provision
of all Required Data (including State Street Data, where applicable) and related information to State Street, in formats compatible
with Administrator-provided data templates including, without limitation, Required Data and the information and assumptions required
by State Street in connection with a Client reporting profile and onboarding checklist, as it, or the information or assumptions
required, may be revised at any time by State Street, in its discretion (collectively, the “Onboarding Checklist”)
and such other forms and templates as may be used by State Street for such purposes from time to time, for all Funds receiving
services under this Agreement, including but not limited to those to be reported on Form N-PORT and Form N-CEN (as determined by
the Client), including, without limitation, arranging for the provision of data from the Client, its affiliates, third party administrators,
prime brokers, custodians, and other relevant parties. If and to the extent that Required Data is already accessible to State Street
(or any of its affiliates) in its capacity as administrator to one or more Clients, State Street and the Client will agree on the
scope of the information to be extracted from State Street’s or any of its affiliate’s systems for purposes of State
Street’s provision of Form N-PORT and Form N-CEN Support Services, Liquidity Risk Measurement Services, and Quarterly Portfolio
of Investments Services, subject to the discretion of State Street, and State Street is hereby expressly authorized to use any
such information as necessary in connection with providing the Form
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N-PORT and Form N-CEN Support Services,
Liquidity Risk Measurement Services, and Quarterly Portfolio of Investments Services, hereunder; and
(B) Providing all required information
and assumptions not otherwise included in Client data and assumptions provided pursuant to Section 1(A) above, including but not
limited to the Required Data, as may be required in order for State Street to provide the Services.
The following are examples of certain types
of information that each Client is likely to be required to provide pursuant to Sections 1(A) and 1(B) above, and each Client hereby
acknowledges and understands that the following categories of information are merely illustrative examples, are by no means an
exhaustive list of all such required information, and are subject to change as a result of any amendments to Form N-PORT and Form
N-CEN or any changes in requirements relating to the provision of Liquidity Risk Measurement Services:
| · | SEC filing classification of the Client (i.e., small or large filer); |
| · | Identification of any data sourced from third parties; |
| · | Identification of any securities reported as Miscellaneous; and |
| · | Any Explanatory Notes included in N-PORT Section E. |
2. Each Client acknowledges
that it has provided to State Street all material assumptions used by the Client or that are expected to be used by the Client
in connection with the completion of Form N-PORT and Form N-CEN, the Liquidity Risk Measurement Services, and Quarterly Portfolio
of Investments Services, and that it has approved all material assumptions used by State Street in the provision of the Services
prior to the first use of the Services. The Client will also be responsible for promptly notifying State Street of any changes
in any such material assumptions previously notified to State Street by the Client or otherwise previously approved by the Client
in connection with State Street’s provision of the Services. The Client acknowledges that the completion of Form N-PORT and
Form N-CEN the Liquidity Risk Measurement Services, and Quarterly Portfolio of Investments Services, and the data required thereby,
requires the use of material assumptions in connection with many different categories of information and data, and the use and/or
reporting thereof, including, but not limited to the following:
| · | Investment classification of positions; |
| · | Assumptions necessary in converting data extracts; |
| | · | General
operational and process assumptions used by State Street in performing the Services; and |
| · | Assumptions specific to the Client. |
Each Client hereby acknowledges and understands
that the foregoing categories of information that may involve the use of material assumptions are merely illustrative examples
of certain subject matter areas in relation to which the Client (and/or State Street on its behalf in connection with the Services)
may rely on various material assumptions, and are by no means an exhaustive list of all such subject matter areas.
3. Each Client acknowledges and
agrees on the following matters:
(A) Each Client has independently
reviewed the Services (including, without limitation, the assumptions, market data, securities prices, securities valuations,
tests and calculations used in the Services), and the Client has determined that the Services are suitable for its purposes.
None of State Street or its affiliates, nor their respective officers, directors, employees, representatives, agents or
service providers (collectively, including State Street, “State Street Parties”) make any express or implied
warranties or representations with respect to the Services or otherwise.
(B) Each Client assumes full
responsibility for complying with all securities, tax, commodities and other laws, rules and regulations applicable to it.
State Street is not providing, and the Services do not constitute, legal, tax, investment, or regulatory advice, or
accounting or auditing services advice. Unless otherwise agreed to in writing by the parties to this Agreement, the Services
are of general application and State Street is not providing any customization, guidance, or recommendations. Where the
Client uses Services to comply with any law, regulation, agreement,
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or other Client obligation, State Street makes
no representation that any Service complies with such law, regulation, agreement, or other obligation, and State Street has no
obligation of compliance with respect thereto.
(C) Each Client may use the Services
and any reports, charts, graphs, data, analyses and other results generated by State Street in connection with the Services and
provided by State Street to the Client (“Materials”) (a) for the internal business purpose of the Client relating to
the applicable Service or (b) for submission to the U.S. Securities and Exchange Commission, as required, of a Form N-PORT template
and a Form N-CEN update, including any Portfolio of Investments, if applicable. The Client may also redistribute the Materials,
or an excerpted portion thereof, to its investment managers, investment advisers, agents, clients, investors or participants, as
applicable, that have a reasonable interest in the Materials in connection with their relationship with the Client (each a “Permitted
Person”); provided, however, (i) the Client may not charge a fee, profit, or otherwise benefit from the redistribution of
Materials to Permitted Persons, (ii) data provided by third party sources such as but not limited to market or index data (“Third
Party Data”) contained in the Materials may not be redistributed other than Third Party Data that is embedded in the calculations
presented in the Materials and not otherwise identifiable as Third Party Data, except to the extent the Client has separate license
rights with respect to the use of such Third Party Data, or (iii) the Client may not use the Services or Materials in any way to
compete or enable any third party to compete with State Street. No Permitted Person shall have any further rights of use or redistribution
with respect to, or any ownership rights in, the Materials or any excerpted portion thereof.
Except as expressly provided
in this Section 3(C), the Client, any of its affiliates, or any of their respective officers, directors, employees, investment
managers, investment advisers, agents or any other third party, including any client of, or investor or participant in the Client
or any Permitted Persons (collectively, including the Client, “Client Parties”), may not directly or indirectly, sell,
rent, lease, license or sublicense, transmit, transfer, distribute or redistribute, disclose display, or provide, or otherwise
make available or permit access to, all or any part of the Services or the Materials (including any State Street Data or Third
Party Data contained therein, except with respect to Third Party Data to the extent the Client has separate license rights with
respect to the use of such Third Party Data). Without limitation, Client Parties shall not themselves nor permit any other person
to in whole or in part (i) modify, enhance, create derivative works, reverse engineer, decompile, decompose or disassemble the
Services or the Materials; (ii) make copies of the Services, the Materials or portions thereof; (iii) secure any source code used
in the Services, or attempt to use any portions of the Services in any form other than machine readable object code; (iv) commercially
exploit or otherwise use the Services or the Materials for the benefit of any third party in a service bureau or software-as-a-service
environment (or similar structure), or otherwise use the Services or the Materials to perform services for any third party, including
for, to, or with consultants and independent contractors; or (v) attempt any of the foregoing or otherwise use the Services or
the Materials for any purpose other than as expressly authorized under this Agreement.
(D) The Client shall limit
the access and use of the Services and the Materials by any Client Parties to a need-to-know basis and, in connection with its
obligations under this Agreement, the Client shall be responsible and liable for all acts and omissions of any Client Parties.
(E) The Services, the Materials
and all confidential information of State Street (as confidential information is defined in the Agreement and other than Third
Party Data and Required Data), are the sole property of State Street. The Client has no rights or interests with respect to all
or any part of the Services, the Materials or State Street’s confidential information, other than its use and redistribution
rights expressly set forth in Section 3(C) herein. The Client automatically and irrevocably assigns to State Street any right,
title or interest that it has, or may be deemed to have, in the Services, the Materials or State Street’s confidential information,
including, for the avoidance of doubt and without limitation, any Client Party feedback, ideas, concepts, comments, suggestions,
techniques or know-how shared with State Street (collectively, “Feedback”) and the State Street Parties shall be entitled
to incorporate any Feedback in the Services or the Materials or to otherwise use such Feedback for its own commercial benefit without
obligation to compensate the Client.
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(F) State
Street may rely on Services-Related Data used in connection with the Services without independent verification. Services-Related
Data used in the Services may not be available or may contain errors, and the Services may not be complete or accurate as a result.
[Remainder of Page Intentionally
Left Blank]
| Information Classification: Limited Access |
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ANNEX I
To Schedule 2.7
HSBC Funds
Further to the Master Services Agreement dated
as of November 7, 2022 between HSBC Funds (the “Client”) and State Street Bank and Trust Company (“State Street”),
the Client and State Street mutually agree to update this Annex 1 by adding/removing Funds as applicable:
| Liquidity Risk Measurement Services |
|
| HSBC Funds |
FREQUENCY |
| N/A |
N/A |
Form N-PORT Services
and Quarterly Portfolio of Investments
Services |
|
| HSBC Funds |
Service Type |
| HSBC RadiantESG U.S. Smaller Companies Fund |
Standard N-PORT and N-CEN Reporting Solution (Data and Filing) |
| HSBC RadiantESG U.S. Smaller Companies Fund (Class I) |
| HSBC RadiantESG U.S. Smaller Companies Portfolio |
IN WITNESS WHEREOF, the undersigned, by their authorized representatives,
have executed this Annex 1 as of the last signature date set forth below.
| HSBC Funds |
|
|
STATE STREET BANK AND TRUST COMPANY |
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|
|
|
| By: |
/s/ Xxxxxxx Xxxxxxxxxxxx |
|
|
By: |
/s/ Xxxxxxxxxxx X. Xxxxxxxxx
|
|
| Name: Xxxxxxx Xxxxxxxxxxxx |
|
|
Name: Xxxxxxxxxxx X. Xxxxxxxxx
|
| Title: President HSBC Funds |
|
|
Title: Senior Vice President
|
| Address: |
|
|
Address: Xxx Xxxxxxx Xxxxxx |
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|
Xxxxxx, XX 00000 |
| Date: 4th November 2022 |
|
|
Date: November 4, 2022 |
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Schedule 0
Xxxxx Xxxxxx Investment Analytics Services
| 1. | The State Street Parties (as defined below) shall perform the investment analytic services (“Investment
Analytics Services”) described in one or more service schedules (the “Service Schedule(s)”) attached
to this Schedule 3. State Street shall provide the Investment Analytics Services on the terms and conditions set forth in the Master
Services Agreement dated as of November 7, 2022 (the “MSA”) by and between State Street Bank and Trust Company
(“State Street”) and each entity set forth on Appendix A to the MSA (“Client”, and State
Street and the Client, collectively, the “Parties”) and on the terms and conditions set forth in this Schedule
3 and related Service Schedules. In the event of an inconsistency between the provisions contained in the MSA and Schedule 3, the
terms of Schedule 3 will govern with respect to the Investment Analytics Services. Schedule 3 will also control in the event of
a conflict between the Schedule 3 and any Service Schedule, unless such Service Schedule provides otherwise by explicitly making
reference to and amending one or more specific Sections of this Schedule 3. No Service Schedule modifies any other Service Schedule
unless otherwise expressly agreed in writing between the Parties. |
| | | |
| 2. | The Investment Analytics Services depend, directly or indirectly, on: (i) information concerning
or relevant to Client, including with respect to its customers, accounts or investors, that is provided by Client or a third party
at Client’s direction such as advisors, suppliers and agents of Client (“Client Data”); (ii) information
concerning Client or its affiliates or any fund, pooled vehicle, security or other investment or portfolio regarding which Client
or its affiliates provide services or is otherwise associated (“Client Entities”) that is generated or aggregated
by State Street in connection with services performed on Client’s behalf or otherwise prepared by State Street (“State
Street Data”); and (iii) data provided by third party sources such as but not limited to market or index data (“Third
Party Data”, and together with Client Data and State Street Data, “Data”). State Street’s obligations,
responsibilities and liabilities with respect to any State Street Data used in connection with other services received by Client
shall be as provided in such respective other agreements between State Street and Client relating to such
other services (e.g., administration and/or custody services, etc.) from which the State Street Data is derived or sourced
(“Other Client Agreements”). Nothing in this Schedule 3 or the Service Schedule(s) shall limit or modify State
Street’s obligations to Client under the Other Client Agreements. |
| | | |
| | | Client represents and warrants
that (i) it is responsible for ensuring the State Street Parties’ rights to use the Client Data under this Schedule 3, and
the Client Data is provided to the State Street Parties without restriction for such use and (ii) any Client Data provided to the
State Street Parties will not include any known virus or other mechanism that is designed to delete, disable, interfere with or
otherwise harm the State Street Parties’ hardware, software, data or other programs. Client’s use of the Investment
Analytics Services and any reports, charts, graphs, data, analyses and other results generated by State Street in connection with
the Investment Analytics Services and provided by State Street to Client (“Materials”) is subject to the respective
rights and limitations of the Parties to use Third Party Data. State Street may rely on Data used in connection with the Investment
Analytics Services without independent verification. Data used in the Investment Analytics Services may not be |
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| | | available or may contain errors,
and the Investment Analytics Services may not be complete or accurate as a result. |
| | | |
| 3. | Client has independently reviewed the Investment Analytics Services (including, without limitation,
the assumptions, market data, securities prices, securities valuations, tests and calculations used in the Investment Analytics
Services), and Client has determined that the Investment Analytics Services are suitable for its purposes. State Street makes no
representation or warranty with respect to the foregoing. |
| | | |
| 4. | State Street is not providing, and the Investment Analytics Services do not constitute, legal,
tax, investment, regulatory, accounting, or auditing services or any other advice of any kind. The Investment Analytics Services
are of general application and State Street is not providing any customization, guidance, or Client-specific recommendations. Where
the Client uses the Investment Analytics Services to comply with any law, regulation, agreement, or other Client obligation, State
Street makes no representation that any Investment Analytics Service complies with such law, regulation, agreement, or other obligation
of the Client, and State Street has no obligation of compliance with respect thereto. |
| | | |
| 5. | State Street warrants to Client that State Street is authorized to provide the Investment Analytics
Services. Client’s remedy for State Street’s breach of this warranty is for State Street to obtain the necessary consents
for Client to receive and use the Investment Analytics Services. If such necessary consents cannot be obtained promptly and at
reasonable cost, State Street may terminate this Schedule 3 and/or the applicable Investment Analytics Services. None of State
Street or its Affiliates, or their respective officers, directors, employees, representatives, agents or service providers (collectively,
including State Street, “State Street Parties”) make any other express or implied warranties or representations
with respect to the Investment Analytics Services or otherwise. |
| | | |
| 6. | Client is solely responsible for its use of the Investment Analytics Services and Materials and
for the suitability of the Investment Analytics Services for the Client’s purpose(s), including any decisions or other actions
taken (or not taken) in connection therewith. The State Street Parties are not liable to Client, any of its affiliates, or any
of their respective officers, directors, employees, investment managers, investment advisers, agents or any other third party,
including any client of, or investor or participant in Client, or any Client Entities or any Permitted Persons (collectively, including
Client, “Client Parties”), for any losses, damages, costs, expenses or any other matter arising out of or relating
to the Investment Analytics Services, the Materials or this Schedule 3, including, without limitation, with respect to any inaccuracy
or errors with respect thereto, any use, reliance, decisions or other actions taken (or not taken) by Client, any Client Party,
or any third party, in connection therewith, except in the case of State Street, and subject to Section 8 of this Schedule 3, to
the extent the same results directly from State Street’s gross negligence or willful misconduct in its performance of the
Investment Analytics Services and does not involve the unauthorized use or unauthorized redistribution of the Investment Analytics
Services or Materials by Client or a Client Party. |
| | | |
| 7. | Client shall indemnify and hold the State Street Parties harmless from and against any and all
losses, damages, liabilities, actions, suits, claims, costs and expenses, including reasonable legal fees and costs of investigation
(each, a “Claim”) suffered or incurred by such State Street Party arising out of or relating to (i) the Investment
Analytics Services, the Materials or this Schedule 3, including, without limitation, any use, distribution or redistribution, reliance,
decisions, or any other actions taken (or not taken) by any Client Party, or any third party, in connection therewith or (ii) State
Street’s action or inaction |
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| | | pursuant to any instruction,
notice, certification or request from any Client Party in connection with State Street’s performance of the Investment Analytics
Services, except (with respect to (i) and (ii)) to the extent the same results directly from State Street’s gross negligence
or willful misconduct in its performance of the Investment Analytics Services or State Street’s inability to obtain the necessary
consents for Client to receive and use the Investment Analytics Services and, in each case, does not involve the unauthorized use
or unauthorized redistribution of the Investment Analytics Services or Materials by Client or a Client Party. |
| | | |
| 8. | In the event any State Street Party is held liable for any reason as to any Investment Analytics
Service, the Materials or this Schedule 3, the aggregate of such liability shall be limited to the direct damages suffered by Client
not to exceed the aggregate amount of fees paid by Client to State Street for the relevant Investment Analytics Service for the
twelve (12) months preceding the occurrence of the first event giving rise to any such direct damages. |
| | | |
| 9. | In addition to the termination rights set forth in the MSA, the Investment Analytics Services are
terminable pursuant to the applicable Service Schedule in accordance with their terms. In addition, State Street may, upon notice
to Client, terminate or modify any portion of the Investment Analytics Services and the related Service Schedule(s) if a provider
of Third Party Data or services to State Street used by State Street to perform the Investment Analytics Services terminates or
modifies State Street’s right to receive or use such Data or services or is otherwise unable to provide same to State Street.
Client may terminate the relevant Investment Analytics Services and, as applicable, the related Service Schedule(s), by written
notice to State Street following any such termination or modification by State Street, provided, however, that Client shall remain
liable for any fees and expenses owed or payable with respect to the Investment Analytics Services rendered prior to such termination
or modification of the Investment Analytics Services or related Service Schedule(s) by State Street. |
| | | |
| 10. | Client may use the Investment Analytics Services and Materials for the internal business purpose
of Client relating to the applicable Investment Analytics Service and, for the sake of clarification, the Client’s investment
manager, on behalf of the Client, may use the Investment Analytics Services and Materials for the internal business purpose of
Client relating to the applicable Investment Analytics Service. Client may also redistribute the Materials, or an excerpted portion
thereof, to its investment managers, investment advisers, board of trustees, agents, clients, investors or participants, as applicable,
that have a reasonable interest in the Materials in connection with their relationship with Client (each a “Permitted Person”)
or in a manner consistent with paragraph E.9.3.4 of the MSA; provided, however, (i) Client may not charge a fee, profit, or otherwise
benefit from the redistribution of Materials to Permitted Persons, (ii) Third Party Data contained in the Materials may not be
redistributed other than Third Party Data that is embedded in the calculations presented in the Materials and not otherwise identifiable
as Third Party Data, except to the extent Client has separate license rights with respect to the use of such Third Party Data,
or (iii) Client may not use the Investment Analytics Services or Materials in any way to compete or enable any third party to compete
with State Street. No Permitted Person shall have any further rights of use or redistribution with respect to, or any ownership
rights in, the Materials or any excerpted portion thereof, provided, however, that the Client’s investment manager, on behalf
of the Client, has the right to redistribute the Materials, or an excerpted portion thereof, to any other Permitted Person. |
| | | |
| 11. | Except as expressly provided in this Schedule 3, Client Parties may not directly or indirectly,
sell, rent, lease, license or sublicense, transmit, transfer, distribute or redistribute, disclose |
| |
|
| Information Classification: Limited Access |
|
| | | display, or provide, or otherwise
make available or permit access to, all or any part of the Investment Analytics Services or the Materials (including any State
Street Data or Third Party Data contained therein, except with respect to Third Party Data to the extent Client has separate license
rights with respect to the use of such Third Party Data).Without limitation, Client Parties shall not themselves nor permit any
other person to in whole or in part (i) modify, enhance, create derivative works, reverse engineer, decompile, decompose or disassemble
the Investment Analytics Services or the Materials; (ii) make copies of the Investment Analytics Services, the Materials or portions
thereof; (iii) secure any source code used in the Investment Analytics Services, or attempt to use any portions of the Investment
Analytics Services in any form other than machine readable object code; (iv) commercially exploit or otherwise use the Investment
Analytics Services or the Materials for the benefit of any third party in a service bureau or software-as-a-service environment
(or similar structure), or otherwise use the Investment Analytics Services or the Materials to perform services for any third party,
including for, to, or with consultants and independent contractors; or (v) attempt any of the foregoing or otherwise use the Investment
Analytics Services or the Materials for any purpose other than as expressly authorized under this Schedule 3. The Parties agree
that the limitations set forth in the preceding sentence do not impact or take away from the Client’s rights to use (or the
Client’s right for its investment manager to use for and on Client’s behalf) the Investment Analytics Services and
Material as set forth in Section 10 above or the Client’s investment manager, on the Client’s behalf, to redistribute
the Materials, or an excerpted portion thereof, to any other Permitted Person as set forth in Section 10. |
| | | |
| 12. | Client shall limit the access and use of the Investment Analytics Services and the Materials by
any Client Parties to a need-to-know basis and Client shall be responsible and liable for all acts and omissions of any Client
Parties. |
| | | |
| 13. | The Investment Analytics Services, the Materials and the confidential information of State Street
(as set forth below and other than Third Party Data and Client Data), are the sole property of State Street. Client has no rights
or interests with respect to all or any part of the Investment Analytics Services, the Materials or the State Street confidential
information, other than its use and redistribution rights expressly set forth in in this Schedule 3. Client automatically and irrevocably
assigns to State Street any right, title or interest that it has, or may be deemed to have, in the Investment Analytics Services,
the Materials or the State Street confidential information, including, for the avoidance of doubt and without limitation, any Client
Party feedback, ideas, concepts, comments, suggestions, techniques or know-how shared with State Street (collectively, “Feedback”)
and the State Street Parties shall be entitled incorporate any Feedback in the Investment Analytics Services or the Materials or
to otherwise use such Feedback for its own commercial benefit without obligation to compensate Client. |
| | | |
| 14. | Consistent with Section E.1 of the MSA (Delegation), State Street may delegate the performance
of Investment Analytics Services to one or more State Street Party. |
| | | |
| 15. | Except as provided herein, this Schedule 3 and any Service Schedule may be amended, modified or
supplemented only by a written instrument duly executed by the Parties. Any provision hereof may be waived but only in writing
signed by the Party against whom such waiver is sought to be enforced. Notwithstanding the foregoing, State Street may require
additional written terms and conditions relating to electronic access to internet-based tools, platforms, and websites relating
to certain Investment Analytics Services and Service Schedules. |
| |
|
| Information Classification: Limited Access |
|
| 16. | Client shall pay State Street the fees and expenses set forth in the Service Schedule(s). Except
as otherwise may be set forth in a Service Schedule, Client shall pay all sales, value added, goods and services, use, excise,
stamp duties, and similar taxes, except for State Street income taxes (“Taxes”), applicable to the receipt of
Investment Analytics Services under this Schedule 3. State Street’s obligations and Client’s rights under this Schedule
3 are conditional upon Client’s payment of all fees, including all Taxes. The fees payable under this Schedule 3 have been
calculated exclusive of any Taxes and should any Taxes become payable on any Investment Analytics Services (or required to be withheld),
the fees for such Investment Analytics Services shall be increased by an amount equal to the Taxes payable or to be withheld. |
| |
|
| Information Classification: Limited Access |
|
Schedule 3.1
Service Schedule
Money Market Stress Testing Risk Services
This Service Schedule
forms a part of the Schedule 3 - State Street Investment Analytics Services (“Schedule 3”) to the Master Services Agreement
dated as of November 7, 2022 (the “MSA”) between HSBC Funds (“Client”) and State Street Bank and
Trust Company (“State Street”). Unless otherwise defined in this Service Schedule, all capitalized terms used,
but not defined, herein shall have the meanings given to them in the Schedule 3. The Services provided to the Client pursuant to
this Service Schedule are provided subject to the terms set forth in Schedule 3 and the MSA. This Service Schedule may only be
amended by the mutual written agreement of the Parties. This Service Schedule shall be effective as of November 7, 2022 (“Schedule
Effective Date”). The
parties agree that the Money Market Stress Testing Risk Services (the “MMSTR Services”) will be provided as soon as
reasonably practicable after the Schedule Effective Date.
| II. | Service Description and Additional Terms |
| | |
| A. | Service Description. The MMSTR Services shall include: |
| 1. |
MMSTR Services. State Street will provide Client with access to State Street’s market risk reporting software application
and analytics reporting software application for risk analytics (including, asset pricing, VaR analysis, sensitivity analysis,
stress testing and correlations) to analyze and generate risk reporting according to the following mandates: |
| a. | Portfolios. State Street will provide the MMSTR Services for the portfolios (“Portfolios”)
of the Client, such portfolios as identified to State Street by the Client below and as may be updated from time to time by written
request by the Client via written acknowledgement thereof by State Street (where such update is effective as of State Street’s
written acknowledgement thereof) |
| | | |
| PORTFOLIOS |
PORTFOLIOS CODE |
| HSBC FUNDS - HSBC U.S. Government Money Market Fund |
HSBX |
| HSBC FUNDS - HSBC U.S. Treasury Money Market Fund |
HSBY |
| | | |
| b. | Calculation Frequency. State Street will perform
the data refreshes and related calculations for the MMSTR Services at the Calculation Frequency identified in the table in Section
B of this Service Schedule. |
| | | |
| 2. | Reporting and Related Training. Reporting generated by the MMSTR Services will be available
utilizing agreed scenario assumptions and reporting formats as mutually agreed between the Client and State Street. Unless the
Client requests a custom report, the reporting capabilities for this MMSTR Service will include the standard reporting package
for the MMSTR Services as provided in the truView System. |
State Street will provide reasonably appropriate
resources for initial and ongoing training sessions relating to the Client’s access to the MMSTR Services totaling no more
than eight (8) hours per Term, as defined below. The time and location of these training sessions will be as mutually agreed between
State Street and the Client. Should the Client desire more than eight (8) hours of training sessions per Term, then State Street
and the Client will mutually agree on training programs for those sessions and the fees for those services will be calculated in
accordance with the rates set forth in Section II.B.2. herein.
The Parties anticipate implementation will take
approximately three weeks following the Schedule Effective Date. Notwithstanding the foregoing, implementation shall be deemed
to be complete on the date on which a Portfolio is available to be processed by the MMSTR Services in a live production environment
(the “Live Date”), which date shall be determined solely by State Street based on its records and such determination
to be binding except in circumstances of manifest error.
| 3. | Data Reconciliation and Service Support. |
| |
|
| Information Classification: Limited Access |
|
| a. | Portfolio Holding Data Sourcing. Security position level information shall be provided by
and aggregated from within State Street (the “Data Provider”). |
| b. | Client Service Support. The Client shall contact the following to report errors, disruptions
or other access issues in the truView System: XXXXXxxx@xxxxxxxxxxx.xxx. Additional technical support contact information shall
be provided to the Client in connection with implementation. |
1. The following fees are the base fees for
the MMSTR Services (“Base Fees”):
| PORTFOLIOS |
DATA
PROVIDER |
CALCULATION
FREQUENCY |
FEE PER PORTFOLIO1
PER ANNUM
|
| Each Portfolio |
State Street |
Weekly |
$18,000 |
1 For purposes of determining the
number of Portfolios for the above billing, the following shall apply:
| · | Where the MMSTR Services are provided with respect to sleeves of a single Portfolio, each sleeve
shall be considered a separate Portfolio; |
| · | Where the MMSTR Services are provided with respect to a Portfolio that is organized in a master/feeder
fund structure, the master fund and each feeder fund shall each be considered separate Portfolios; and |
| · | Where the MMSTR Services are provided with respect to separate share classes of a Portfolio, each
share class shall be considered as a separate Portfolio. |
2. The following fees are the additional fees
for the MMSTR Services (“Additional Fees”):
| ADDITIONAL SERVICES |
FEES |
| Implementation Fee |
Waived |
| Custom Reporting Fee |
$10,000 per report template |
| Additional Training Fee |
$250 per hour |
| Professional Services |
To be governed by a separate written professional services agreement on a time and materials basis. |
Data Normalization Fees.
If applicable, the cost of transferring and normalizing
the Client historical data onto the truView System will be billed as professional services work under a separate professional services
agreement.
Third Party Data Fees. The charges for
any Third Party Data requested by the Client for use in the MMSTR Services are the responsibility of the Client. If Client requests
that State Street obtain Third Party Data for use in the MMSTR Services then State Street and Client will agree, in advance, on
the amounts payable to State Street for obtaining such Third Party Data.
Invoicing. Except as otherwise specified,
all fees will be invoiced on a calendar monthly basis in arrears. The billing of the Base Fees will not commence until the occurrence
of the Live Date. To the extent the MMSTR Services with respect to a Portfolio are not provided for a full calendar month, the
portion of the annual fee owed for such month will be pro-rated based on the ratio of (A) the number of days left in such month
over (B) thirty (30). Platform fees are determined based upon the number of Users at the end of a given month, regardless of if,
when or how many times a given User accessed the truView system during the month. Implementation fees will be invoiced following
the Schedule Effective Date. Custom reporting fees will be invoiced upon the first use of the custom report template in a live
production environment, with such determination to be made by State Street and such determination to be binding except in circumstances
of manifest error.
All fees and other expenses will be due and payable
to State Street within thirty (30) days of receipt of such invoice by the Client.
Late Fee. If any payment due to State
Street under this Service Schedule is overdue (and is not subject to a good faith dispute), then the Client shall pay interest
thereon (before and after any judgment) at an annual rate (but with interest accruing on a daily basis) of the lesser of two percent
(2%) above the prime rate as reported
| Information Classification: Limited Access |
|
in The Wall Street Journal, Eastern Edition, and the maximum rate permitted by applicable
law, such interest to run from the date upon which payment of such
sum became due until payment thereof in full together with such interest.
Annual Fee Adjustment. Beginning on January
1, 2024 and each January 1st thereafter (“Index Date”), the Base Fees for all Portfolios serviced as of each Index
Date shall be increased annually by three-percent (3%) for the calendar year ended immediately prior to the relevant Index date.
State Street retains the right, in its sole discretion,
to modify its pricing for the services if the Portfolio composition or scope of services materially changes from the Portfolio
composition or scope services in effect as of the effective date of this Service Schedule. The Client will be notified forty-five
(45) days in advance of the intention by State Street to increase such fees or to assess such additional expenses and the bases
on which they will be determined. The Client acknowledges and agrees that after expiration of such forty-five (45) day advance
notice period such additional fees and expenses shall become obligations of, and be payable by, the Client in respect of the continued
use of the Services by the Client.
C. Term and Termination.
This Service Schedule shall remain in effect
for an initial period of one (1) year commencing with the Schedule Effective Date (the “Initial Term”). Thereafter,
unless otherwise terminated, this Service Schedule will automatically renew for successive additional one (1) year periods (each
a “Renewal Term” and, collectively with the Initial Term, each, a “Term”). This Service Schedule
may be terminated by either Party by giving ninety (90) days advance written notice to the other Party prior to the end of the
Initial Term or any Renewal Term, as applicable. Additionally, either Party may terminate this Service Schedule upon written notice
to the other Party in the event of a material breach by such other Party of its obligations under the Schedule 3, the MSA or this
Service Schedule, provided that, if capable of cure, the breaching Party shall first have thirty (30) days to cure its breach to
the reasonable satisfaction of the non-breaching Party. Upon termination of this Service Schedule for any reason, the Client’s
access to the truView System shall cease.
| Information Classification: Limited Access |
|
Schedule 4
Notices
(Section E.14.3)
STATE STREET:
| |
STATE STREET BANK AND TRUST COMPANY |
| |
|
| |
Attention: |
Xxxxx Xxxxxx, Senior Vice President |
| |
|
|
| |
CC: |
Legal Department |
| |
|
|
| |
Address: |
0 Xxxxxxxx Xxxxx |
| |
|
|
| |
|
Xxxxx Xxxxxx, XX 00000 |
| |
|
|
| |
Telephone No: |
000-000-0000 |
| |
|
|
| |
Email: |
xxxxx.xxxxxx@xxxxxxxxxxx.xxx |
| |
|
|
| |
|
|
| CLIENT: |
HSBC Funds |
|
| |
|
|
| |
Attention: |
Xxxxxxx Xxxxxxxxxxxx, President |
| |
|
|
| |
Address: |
000 0xx Xxx., XX XX 00000 |
| |
|
|
| |
Telephone No: |
000-000-0000 |
| |
|
|
| |
Email: |
xxxxxxx.x.xxxxxxxxxxxx@xx.xxxx.xxx |
| |
|
| Information Classification: Limited Access |
|
Appendix A
List of Client Entities and Funds
| Fund Name |
Jurisdiction of
Formation |
| HSBC Funds, on behalf of its series |
Delaware |
| |
|
HSBC U.S. Government Money Market Fund
HSBC U.S. Treasury Money Market Fund
HSBC ESG Prime Money Market Fund
HSBC RadiantESG U.S. Smaller Companies Fund
HSBC RadiantESG U.S. Smaller Companies Fund (Class I)
HSBC RadiantESG U.S. Smaller Companies Portfolio |
|
| |
|
| Information Classification: Limited Access |
|
Appendix B
QFC Addendum
Opt-In to U.S. Special Resolution
Regime. Notwithstanding anything to the contrary in this Agreement or any other agreement, the parties hereto expressly acknowledge
and agree that:
(a) In the event State Street
becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer or assignment of this Agreement (and any interest
and obligation in or under, and any property securing, this Agreement) by State Street will be effective to the same extent as
the transfer would be effective under the U.S. Special Resolution Regime if this Agreement (and any interest and obligation in
or under, and any property securing, this Agreement) were governed by the laws of the United States or a state of the United States;
and
(b) In the event State Street
or an Affiliate of State Street becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights with respect
to this Agreement that may be exercised against State Street are permitted to be exercised to no greater extent than the Default
Rights could be exercised under the U.S. Special Resolution Regime if this Agreement (and any interest and obligation in or under,
and any property securing, this Agreement) were governed by the laws of the United States or a state of the United States.
Adherence to the ISDA Protocol.
At such times as the parties to this Agreement have adhered to the ISDA Protocol and this Agreement is or is deemed modified or
amended by the ISDA Protocol, the terms of the ISDA Protocol will supersede the terms of this QFC Addendum as included as part
of this Agreement, and in the event of any inconsistency between this QFC Addendum and the ISDA Protocol, the ISDA Protocol will
prevail.
Definitions. As used in this
QFC Addendum:
“Affiliate” has the meaning
given in section 2(k) of the Bank Holding Company Act (12 U.S.C. §1841(k)) and section 225.2(a) of the Federal Reserve Board’s
Regulation Y (12 CFR § 225.2(a)).
“Default Right” means
any:
(i) right of a party, whether
contractual or otherwise (including, without limitation, rights incorporated by reference to any other contract, agreement, or
document, and rights afforded by statute, civil code, regulation, and common law), to liquidate, terminate, cancel, rescind, or
accelerate such agreement or transactions thereunder, set off or net amounts owing in respect thereto (except rights related to
same-day payment netting), exercise remedies in respect of collateral or other credit support or property related thereto (including
the purchase and sale of property), demand payment or delivery thereunder or in respect thereof (other than a right or operation
of a contractual provision arising solely from a change in the value of collateral or margin or a change in the amount of an economic
exposure), suspend, delay, or defer payment or performance thereunder, or modify the obligations of a party thereunder, or any
similar rights; and
(ii) right or contractual provision
that alters the amount of collateral or margin that must be provided with respect to an exposure thereunder, including by altering
any initial amount, threshold amount, variation margin, minimum transfer amount, the margin value of collateral, or any similar
amount, that entitles a party to demand the return of any collateral or margin transferred by it to the other party or a custodian
or that modifies a transferee’s right to reuse collateral or margin (if such right previously existed), or any similar rights,
in each case, other
| Information Classification: Limited Access |
|
than a right or operation of
a contractual provision arising solely from a change in the value of collateral or margin or a change in the amount of an economic
exposure.
“ISDA” refers to the
International Swaps and Derivatives Association, Inc.
“ISDA Protocol” means
the ISDA 2018 U.S. Resolution Stay Protocol as published by ISDA as of July 31, 2018.
“U.S. Special Resolution Regime”
means the Federal Deposit Insurance Act (12 U.S.C. §1811–1835a) and regulations promulgated thereunder and Title II
of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (12 U.S.C. § 5381–5394) and regulations promulgated
thereunder.
| Information Classification: Limited Access |
|
| |
Appendix C
Remote Access Addendum |
Global Services
Xxxxx X. Xxxxx
Vice President
Xxx
Xxxxxxxx Xxxxx
0xx Xxxxx, Xxxx
Xxxxxx, XX 00000
P: 000-000-0000
xxxxxxx@xxxxxxxxxxx.xxx
xxx.xxxxxxxxxxx.xxx |
HSBC Funds
c/o HSBC Global Asset Management (USA) Inc
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 XXX
Attention: Xxxxx Xxxx, Vice President of HSBC Funds
Re: Remote Access Services
Dear Customer:
State Street Bank and Trust
Company, including its subsidiaries and affiliates (“State Street”), has developed and/or utilizes proprietary or third
party accounting and other systems in conjunction with the services that State Street provides to HSBC Funds (the “Customer”).
In this regard, we maintain certain information in databases under our ownership and/or control
that we make available to our customers (the “Remote Access Services”).
The Services
State Street agrees to provide the Customer, and
its designated investment advisors (including affiliates thereof), consultants or other third parties (and in each case, any employees
thereof) authorized by State Street who agree to abide by the terms of this Agreement (“Authorized Designees”) with
access to State Street proprietary and third party systems as may be offered by State Street from time to time (each, a “System”)
on a remote basis.
Security Procedures
The Customer agrees to comply, and to cause
the Authorized Designees to comply, with remote access operating standards and procedures and with user identification or other
password control requirements and other security procedures as may be issued from time to time by State Street or its third party
vendors for use of the System and access to the Remote Access Services. The Customer is responsible for any use and/or misuse of
the System and Remote Access Services by its Authorized Designees. The Customer agrees to advise State Street immediately in the
event that it learns or has reason to believe that any person to whom Customer has given access to the System or the Remote Access
Services has violated or intends to violate the terms of this Agreement and Customer will cooperate with State Street in seeking
injunctive or other equitable relief. Customer agrees to discontinue use of the System and Remote Access Services, if requested,
for any security reasons cited by State Street.
Fees
Fees and charges for the use of the System and
the Remote Access Services and related payment terms shall be as set forth in the Fee Agreement related to the Master Services
Agreement between the parties anticipated to be entered into on or before [Transition Date] (the “MSA) (the “Fee Schedule”).
Unless otherwise provided in the Fee Schedule, Customer shall be responsible for any tariffs, duties or taxes imposed or levied
by any government or governmental agency by reason of the transactions contemplated by this Agreement, including, without limitation,
federal, state and local taxes, use, value added and personal property taxes (other than income, franchise or similar taxes which
may be imposed or assessed against State Street). Any claimed exemption from such tariffs, duties or taxes shall be supported by
proper documentary evidence delivered to State Street.
| Information Classification: Limited Access |
|
Proprietary Information/Injunctive Relief
The System and Remote Access Services described
herein and the databases, computer programs, screen formats, report formats, interactive design techniques, formulae, processes,
systems, software, knowhow, algorithms, programs, training aids, printed materials, methods, books, records, files, documentation
and other information made available to Customer by State Street as part of the Remote Access Services and through the use of the
System and all copyrights, patents, trade secrets and other proprietary and intellectual property rights of State Street and third
party vendors related thereto are the exclusive, valuable and confidential proprietary property of State Street and its relevant
licensors and third party vendors (the “Proprietary Information”). Customer agrees on behalf of itself and the Authorized
Designees to keep the Proprietary Information confidential and to limit access to Customer employees and Authorized Designees (under
a similar duty of confidentiality) who require access to the System for the purposes intended. The foregoing shall not apply to
Proprietary Information in the public domain or required by law to be made public.
Customer agrees to use the Remote Access Services
only in connection with the proper purposes of this Agreement. Customer will not, and will cause its employees and Authorized Designees
not to, (i) permit any third party to use the System or the Remote Access Services, (ii) sell, rent, license or otherwise use the
System or the Remote Access Services in the operation of a service bureau or for any purpose other than as expressly authorized
under this Agreement, (iii) use the System or the Remote Access Services for any fund, trust or other investment vehicle without
the prior written consent of State Street, or (iv) allow or cause any information transmitted from State Street’s databases,
including data from third party sources, available through use of the System or the Remote Access Services, to be published, redistributed
or retransmitted for other than use for or on behalf of the Customer.
Customer agrees that neither it nor its Authorized
Designees will modify the System in any way, enhance, copy or otherwise create derivative works based upon the System, nor will
Customer or its Authorized Designees reverse engineer, decompile or otherwise attempt to secure the source code for all or any
part of the System.
Customer acknowledges that the disclosure of
any Proprietary Information, or of any information which at law or equity ought to remain confidential, will immediately give rise
to continuing irreparable injury to State Street or its third party licensors and vendors inadequately compensable in damages at
law and that State Street shall be entitled to obtain immediate injunctive relief against the breach or threatened breach of any
of the foregoing undertakings, in addition to any other legal remedies which may be available.
Limited Warranties
State
Street represents and warrants that it is the owner of and/or has the right to grant access to the System and to provide the Remote
Access Services contemplated herein. Because of the nature of computer information technology, including but not limited to the
use of the Internet, and the necessity of relying upon third party sources and data and pricing information obtained from third
parties, the System and Remote Access Services are provided “AS IS” without warranty express or implied including as
to availability of the System, and you and your Authorized Designees shall be solely responsible for the use of the System and
Remote Access Services. State Street and its relevant licensors and third party vendors will not be liable to the Customer or its
Authorized Designees for any direct or indirect, special, incidental, punitive or consequential damages arising out of or in any
way connected with the System or the Remote Access Services, nor shall any party be responsible for delays or nonperformance under
this Agreement arising out of any cause or event beyond such party’s control.
EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT, STATE STREET FOR ITSELF AND ITS RELEVANT LICENSORS AND THIRD PARTY VENDORS EXPRESSLY DISCLAIMS ANY AND
ALL WARRANTIES CONCERNING THE SYSTEM AND THE SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION
ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE
Infringement
| Information Classification: Limited Access |
|
State
Street will defend or, at our option, settle any claim or action brought against Customer or an Authorized Designee to the extent
that it is based upon an assertion that access to or use of State Street proprietary systems by you under this Agreement constitutes
direct infringement of any patent or copyright or misappropriation of a trade secret, provided that Customer notifies State Street
promptly in writing of any such claim or proceeding and cooperate with State Street in the defense of such claim or proceeding
and allow State Street sole control over such claim or proceeding. Should the State Street proprietary system or any part thereof
become, or in State Street’s opinion be likely to become, the subject of a claim of infringement or the like under any applicable
patent, copyright or trade secret laws, State Street shall have the right, at State Street’s sole option, to (i) procure for Customer
the right to continue using the State Street proprietary system, (ii) replace or modify the State Street proprietary system so
that the State Street proprietary system becomes noninfringing, or (iii) terminate this Agreement without further obligation. This
section constitutes the sole remedy available to Customer for the matters described in this
section.
Termination
Either party may terminate
this Agreement (i) for any reason by giving the other party at least one-hundred and eighty (180) days’ prior written notice in
the case of notice of termination by State Street to Customer or thirty (30) days’ notice in the case of notice from Customer to
State Street of termination, or (ii) immediately for failure of the other party to comply with any material term and condition
of the Agreement by giving the other party written notice of termination. This Agreement shall in any event terminate within ninety
(90) days after the termination of any service agreement applicable to you. Customer’s use of any third party System is contingent
upon its compliance with any terms and conditions of use of such System imposed by such third party and State Street’s continued
access to, and use of, such third party System. In the event of termination, Customer will return to State Street all copies of
documentation and other confidential information in its possession or in the possession of its Authorized Designees (subject to,
in each case, applicable law as well as each such entity’s electronic document retention policies) and immediately cease
access to the System and Remote Access Services. The foregoing provisions with respect to confidentiality and infringement will
survive termination for a period of three (3) years.
Miscellaneous
This Agreement constitutes
our entire understanding with respect to access to the System and the Remote Access Services. This Agreement cannot be modified
or altered except in a writing duly executed by both of us and shall be governed by and construed in accordance with the laws of
the Commonwealth of Massachusetts.
Should Customer wish to avail itself s of the System
and the Remote Access Services, please sign and return one copy of this letter.
| |
Very truly yours, |
|
| |
|
|
|
STATE STREET BANK AND TRUST COMPANY |
| |
By: |
 |
|
| |
|
|
| |
Name: Xxxxx |
| |
|
| |
Xxxxx Title: |
| |
|
| |
Vice President |
| |
|
| Information Classification: Limited Access |
|
CONFIRMED AND AGREED:
HSBC Funds
| By: |
 |
|
| |
|
|
| Name: |
Xxxxx X Xxxx |
|
| |
|
|
| Title: |
Vice President |
|
| |
|
|
| Date: |
September 15, 2022 |
|
| |
|
| Information Classification: Limited Access |
|
Appendix D
State Street Client Information
Security Schedule
All capitalized terms not defined
in this State Street Client Information Security Schedule (this “Security Schedule”) will have the meanings
given to them in the Agreement, as applicable.
State Street implements data
security measures consistent in all material respects with applicable prevailing industry practices and standards as well as laws,
rules and regulations applicable to State Street. However, as information security is a highly dynamic space where threats are
constantly changing, State Street reserves the right to make changes to its information security controls at any time in a manner
that does not materially reduce its protection of Client Data.
State Street will use commercially
reasonable efforts to cause any delegates and other third parties to whom State Street provides Client Data to implement and maintain
security measures that State Street reasonably believes are at least as protective as those described in this Security Schedule.
For delegates or other third parties who collect, transmit, share, store, control, process or manage Client Data, State Street
is responsible for assessing their control environments. Notwithstanding the foregoing, State Street shall be responsible for any
such delegate’s or other third party’s conduct with respect to the protection of Client Data, which if done by State
Street, would be a breach of its commitment under this Security Schedule.
| 1. | Security Objectives. State Street uses commercially reasonable efforts to: |
a. protect the privacy, confidentiality,
integrity, and availability of Client Data;
b. protect against accidental,
unauthorized, unauthenticated or unlawful access, copying, use, processing, disclosure, alteration, corruption, transfer, loss
or destruction of Client Data;
c. comply with applicable
governmental laws, rules and regulations that are relevant to the handling, processing and use of Client Data by State Street in
accordance with each Agreement; and
d. implement customary
administrative, physical, technical, procedural and organizational safeguards.
2. Risk Assessments.
The results of State Street’s risk assessments are internal to State Street and will not be provided to Client.
a. Risk Assessment
- State Street will perform risk assessments annually that are designed to identify material threats (both internal and external),
the likelihood of those threats occurring and the impact of those threats upon the State Street organization to evaluate and analyze
the appropriate level of information security safeguards (“Risk Assessments”).
b. Risk
Mitigation - State Street will use commercially reasonable efforts to manage, control and remediate any threats identified
in the Risk Assessments that are likely to result in material unauthorized access, copying, use, processing, disclosure, alteration,
transfer, loss or destruction of Client Data, consistent with the Security Objectives, and commensurate with the sensitivity of
the Client Data and the complexity and scope of the activities of State Street pursuant to the Agreement.
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c. Vulnerability
Management Program – State Street maintains a vulnerability management program that includes processes for: being made
aware of newly announced vulnerabilities; discovering vulnerabilities within the infrastructure and applications; risk rating vulnerabilities
consistent with industry standards; and defining timeframes for remediating vulnerabilities (other than medium or low risk vulnerabilities)
consistent with industry standards and taking into account any mitigation efforts taken by State Street with respect to such vulnerabilities.
3. Security
Controls. Upon Client’s reasonable request, no more frequently than annually, State Street will provide Client’s
Chief Information Security Officer or his or her designee with a copy of its Corporate Information Security Controls manual, a
completed Standardized Information Gathering (SIG) questionnaire, and an opportunity to discuss State Street’s Information
Security measures with a qualified member of State Street’s Information Technology management team. In no event will any
such discussions require State Street to reveal any details or information that could reasonably be expected to jeopardize the
security or integrity of any State Street system or the confidentiality or security of any other client’s data. State Street
reviews its Information Security Policy approximately annually and reserves the right to change the frequency to meet regulatory
requirements (which in no event will be less frequent than every eighteen (18) months).
4. Organizational Security.
a. Responsibility
- State Street will assign responsibility for information security management to senior personnel only.
b. Access
- State Street will have controls designed to permit only those personnel performing roles supporting the provision of services
under this Agreement to access Client Data.
c. Confidentiality
- State Street personnel who have accessed or otherwise been made known of Client Data will maintain the confidentiality of
such information in accordance with the terms of this Agreement.
d. Training - State
Street will provide information security training to its personnel on approximately an annual basis
e. Screening
–State Street employees, and personnel of delegates or other third parties who access State Street’s facilities,
networks or systems, are subject to certain credit and criminal checks conducted by State Street or its agents applicable to banks
pursuant to applicable laws, rules and/or regulations. If any person does not meet the requirements of such State Street checks,
such person may not be permitted to be employed by State Street or, in the event of a delegate or other third party, State Street
requires that such person be removed from any assignment for State Street. In addition to the foregoing, State Street requires
its delegates and other third parties to conduct, as part of its standard hiring and vendor due diligence practices, pre-employment
background investigations consistent with industry standards with respect to any personnel that are assigned to perform services
for State Street or otherwise have access to confidential information of State Street or its clients.
5. Physical Security.
a. Securing Physical
Facilities - State Street will maintain systems located in State Street facilities that host Client Data or provide services
under this Agreement in environments that are designed to be physically secure and to allow access only to
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authorized individuals.
A secure environment includes the availability of onsite security personnel on a 24 x 7 basis or equivalent means of monitoring
locations supporting the delivery of services under this Agreement.
b. Physical Security
of Media - State Street will implement controls, consistent with applicable prevailing industry practices and standards, that
are designed to deter the unauthorized viewing, copying, alteration or removal of any media containing Client Data. Removable media
on which Client Data is stored (including thumb drives, CDs, and DVDs, and PDAS) by State Street must be encrypted using at least
256-bit AES (or equivalent).
c. Media Destruction
- State Street will destroy removable media and any mobile device (such as discs, USB drives, DVDs, back-up tapes, laptops
and PDAs) containing Client Data or use commercially reasonable efforts to render Client Data on such physical media unintelligible
if such media or mobile device is no longer intended to be used. All backup tapes that are not destroyed must meet the level of
protection described in this Security Schedule until destroyed.
d. Paper Destruction
- State Street will cross shred all paper waste containing Client Data and dispose in a secure and confidential manner.
6. Communications and Operations Management.
a. Network Penetration
Testing - State Street will, on approximately an annual basis but in no event less frequently than every eighteen (18) months,
contract with an independent third party to conduct a network penetration test on its network having access to or holding or containing
Client Data. If penetration testing reveals material deficiencies or vulnerabilities, the findings will be risk rated consistent
with industry standards and timeframes will be defined for remediating vulnerabilities (other than medium or low risk vulnerabilities)
consistent with industry standards and taking into account any mitigation efforts taken by State Street with respect to such vulnerabilities
b. Data Protection
During Transmission - State Street will encrypt, using an industry recognized encryption algorithm, personally identifiable
Client Data when in transit across public networks.
c. Data Loss Prevention
- State Street will maintain a data leakage program that is designed to identify, detect, monitor and document data leaving
State Street’s control without authorization in place.
7. Access Controls.
a. Authorized Access
- State Street will have controls that are designed to maintain the logical separation such that access to systems hosting
Client Data and/or being used to provide services to Client will uniquely identify each individual requiring access, grant access
only to authorized personnel based on the principle of least privileges, and prevent unauthorized access to Client Data. State
Street reviews user access rights to systems and applications storing or allowing access to Client Data on a periodic basis.
b. User Access -
State Street will have a process to promptly disable access to Client Data by any State Street personnel who no longer requires
such access. State Street will also promptly remove access of Client personnel upon receipt of notification from Client.
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c. Authentication
Credential Management - State Street will communicate authentication credentials to users in a secure manner, with a proof
of identity check of the intended users. State Street requires its personnel and any personnel of its delegates or other third
parties that have access to State Street’s networks or systems to maintain the confidentiality of system passwords, keys,
and passcodes. State Street has a secure and documented process to reset passwords that requires verification of user identity
prior to password reset.
d. Multi-Factor
Authentication for Remote Access - State Street will use multi factor authentication and a secure tunnel, or another strong
authentication mechanism, when any State Street personnel remotely accesses State Street’s internal network.
8. Use of Laptop and Mobile Devices in connection
with this Agreement.
a. Encryption Requirements
- State Street will encrypt any laptops or mobile devices (e.g., tablets and smartphones) containing Client Data used by State
Street’s personnel using an industry recognized encryption algorithm with at least 256 bit encryption AES (or equivalent).
b. Secure Storage
- State Street will require that all laptops and mobile devices be securely stored whenever out of the personnel’s immediate
possession.
c. Inactivity Timeout
- State Street will employ access and password controls as well as inactivity timeouts of no longer than thirty (30) minutes
on laptops, desktops and mobile devices managed by State Street and used by State Street’s personnel.
d. Remote Management
– State Street will maintain the ability to remotely remove Client Data promptly from mobile devices managed by State
Street. State Street has policies requiring personnel to maintain the security of devices managed by State Street.
| 9. | Information Systems Acquisition Development and Maintenance. |
| | a. | Client Data – Client Data will only be used by State Street for the purposes specified
in this Agreement. |
| | b. | Virus Management - State Street will maintain a malware protection program designed to identify,
detect, protect, respond and recover from malware infections, malicious code and unauthorized execution of code within the State
Street environment. |
| | c. | Change Control – State Street implements and maintains change control procedures to
manage changes to information systems, supporting infrastructure, and facilities. Certain State Street’s system and application
changes undergo testing prior to implementation, which may include relevant security controls, as determined by State Street on
a risk basis and taking into account the type and/or impact of the change and the infrastructure and/or network components in place
with respect to such change. |
10. Incident Event and Communications Management.
a. Incident Management/Notification
of Breach - State Street will maintain an incident response plan that specifies actions to be taken when State Street or one
of its
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subcontractors suspects
or detects that a party has gained unauthorized access to Client Data or systems or applications containing any Client Data (the
“Response Plan”). Such Response Plan will include an escalation procedure that includes notification to senior
managers and reporting to regulatory and law enforcement agencies, when and if applicable. State Street will use commercially reasonable
efforts to investigate, remediate and mitigate such unauthorized access.
b. State Street will
notify Client within seventy-two (72) hours after it has determined that unauthorized access to Client Data has occurred, unless
otherwise prohibited by applicable Law. In such an event, and unless prohibited by applicable Law, State Street will provide information,
to the extent available to State Street, sufficient to provide a reasonable description of the general circumstances and extent
of such unauthorized access, and will provide reasonable cooperation to Client:
| | i. | in the investigation of any such unauthorized access; |
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| ii. | in Client’s efforts to comply with statutory notice or other applicable Laws applicable to
Client or its shareholders; and |
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| iii. | in litigation and investigations brought by Client against third parties, including injunctive
or other equitable relief reasonably necessary to protect Client’s proprietary rights. |
For the avoidance of
doubt, State Street will not be required to disclose information that State Street reasonably determines would compromise the security
of State Street’s technology or premises or that would impact other State Street clients.
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