CUSTODY AGREEMENT By and Between THE BANK OF NEW YORK MELLON And FRANKLIN TEMPLETON HOLDINGS TRUST
10.3
EXECUTION VERSION
By and Between
THE BANK OF NEW YORK MELLON
And
FRANKLIN XXXXXXXXX HOLDINGS TRUST
BNY MELLON AND CUSTOMER CONFIDENTIAL
TABLE OF CONTENTS
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1.
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DEFINITIONS
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1
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2.
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APPOINTMENT OF CUSTODIAN; ACCOUNTS
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3
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2.1
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Appointment of Custodian
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3
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2.2
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Establishment of Accounts
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4
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3.
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AUTHORIZED PERSONS AND INSTRUCTIONS; ELECTRONIC ACCESS
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4
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3.1
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Authorized Persons
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4
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3.2
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Instructions
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4
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3.3
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BNY Mellon Actions Without Instructions
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5
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3.4
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Funds Transfers
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5
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3.5
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Electronic Access
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6
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4.
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AGENTS
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6
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4.1
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Use of Agents
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6
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5.
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TAX MATTERS
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6
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5.1
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Responsibility for Taxes
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6
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5.2
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Payments
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6
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6.
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CREDITS AND ADVANCES
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6
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6.1
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Advances
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6
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6.2
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Repayment
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7
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6.3
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Securing Repayment
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7
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6.4
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Setoff
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7
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7.
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STATEMENTS; BOOKS AND RECORDS; THIRD PARTY DATA
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8
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7.1
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Statements
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8
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7.2
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Books and Records
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8
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7.3
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Third Party Data
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8
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8.
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DISCLOSURES
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9
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8.1
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Investment of Cash
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9
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9.
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REGULATORY MATTERS
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9
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9.1
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USA PATRIOT Act
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9
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9.2
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Sanctions; Anti-Money Laundering
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10
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10.
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COMPENSATION
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11
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10.1
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Fees and Expenses
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11
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10.2
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Other Compensation
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11
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11.
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REPRESENTATIONS, WARRANTIES AND COVENANTS
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11
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11.1
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BNY Mellon
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11
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11.2
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Customer
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12
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12.
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LIABILITY
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12
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12.1
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Standard of Care
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12
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12.2
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Limitation of Liability
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12
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12.3
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Force Majeure
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13
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12.4
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Indemnification
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14
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i
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13.
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CONFIDENTIALITY
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14
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13.1
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Confidentiality Obligations
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14
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13.2
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Exceptions
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15
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14.
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TERM AND TERMINATION
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15
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14.1
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Term
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15
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14.2
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Termination
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15
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14.3
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Effect of Xxxxxxxxxxx
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00
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00.0
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Xxxxxxxx
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00
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00.
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GENERAL
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16
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15.1
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Assignment
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16
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15.2
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Amendment
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16
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15.3
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Governing Law/Forum
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16
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15.4
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Business Continuity/Disaster Recovery; Information Security
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17
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15.5
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Non-Fiduciary Status
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17
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15.6
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Notices
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17
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15.7
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Entire Agreement
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18
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15.8
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No Third Party Beneficiaries
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18
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15.9
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Counterparts/Facsimile
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18
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15.10
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Interpretation
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18
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15.11
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No Waiver
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18
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15.12
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Headings
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18
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15.13
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Severability
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18
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15.14
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Limitations of Liability of the Shareholders
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19
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15.15
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Several Obligations of the Series
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19
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15.16
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Liability of Sponsor
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19
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ii
This Custody Agreement is made and entered into as of the latest date set forth on the signature page hereto (the “Effective Date”) by and
between THE BANK OF NEW YORK MELLON, a New York state chartered bank (“BNY Mellon”), and FRANKLIN XXXXXXXXX HOLDINGS TRUST, a
Delaware statutory trust having its principal office and place of business at Xxx Xxxxxxxx Xxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000-0000 (the “Customer”), on behalf of each series of the Customer listed on Appendix I
hereto (as such Appendix may be amended from time to time) (each a “Series”). BNY Mellon and Customer are collectively referred to as the “Parties” and individually as a “Party”.
RECITALS
WHEREAS, Customer wishes to appoint BNY Mellon as the custodian of certain of its assets, and BNY Mellon is willing to provide such services on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and intending to be legally bound, the Parties agree as follows.
| 1. |
DEFINITIONS
|
Whenever used in this Agreement, the following words have the meanings set forth below:
“Account” or “Accounts” has the meaning set forth in Section 2.2.
“Affiliate” means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by or under common
control with such entity.
“Agreement” means, collectively, this Custody Agreement, any Exhibits hereto and any other documents incorporated herein by reference.
“Anti-Money Laundering Laws” means all anti-money laundering and counter-terrorist financing laws, rules, regulations, executive orders and
requirements administered by any governmental authority of the United States (including the U.S. Bank Secrecy Act, the U.S.A. PATRIOT Act, and regulations of the U.S. Treasury Department which implement such acts) or any other applicable domestic or
foreign authority with jurisdiction over Customer.
“Assets” has the meaning set forth in Section 2.1(a).
“Authorized Person” has the meaning set forth in Section 3.1.
“BNY Mellon” has the meaning set forth in the introductory paragraph.
“Cash” means United States Dollars.
“Confidential Information” means, with respect to a Party, the terms of this Agreement and all non-public business and financial
information of such Party (including, with respect to Customer, information regarding the Accounts and including, with respect to BNY Mellon, information regarding its practices and procedures related to the services provided hereunder) disclosed to
the other Party in connection with this Agreement. For the avoidance of doubt, Confidential Information shall include (a) any data or information that is competitively sensitive material, and not generally known to the public, including, but not
limited to, information about product plans, marketing strategies, finances, operations, customer relationships, customer profiles, customer lists, sales estimates, business plans, and internal performance results relating to the past, present or
future business activities of Customer, Sponsor or BNY Mellon and their respective subsidiaries and affiliated companies; (b) any scientific or technical information, design, process, procedure, formula, index methodology, or improvement that is
commercially valuable and secret in the sense that its confidentiality affords Customer, Sponsor or BNY Mellon, as applicable, a competitive advantage over its competitors; (c) all confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow charts, databases, inventions, know-how, and trade secrets, whether or not patentable or copyrightable; and (d) anything designated as confidential.
“Customer” has the meaning set forth in the introductory paragraph.
“Data Terms Website” means xxxx://xxx.xxxxxxxxx.xxx/xxxxxxxx/xxxxxxxxxxxxxx/xxxxxxxxxxxxxxx.xxx or any successor website the address of which is provided by BNY Mellon to Customer.
“Effective Date” has the meaning set forth in the introductory paragraph.
“Electronic Access Services” means such services made available by BNY Mellon or a BNY Mellon Affiliate to Customer to electronically
access information relating to the Accounts and/or transmit Instructions.
“Instructions” means, with respect to this Agreement, instructions issued to BNY Mellon by way of (a) one of the following methods (each as
and to the extent specified by BNY Mellon as available for use in connection with the services hereunder): (i) the Electronic Access Services; (ii) third-party electronic communication services containing, where applicable, appropriate authorization
codes, passwords or authentication keys, or otherwise appearing on their face to have been transmitted by an Authorized Person or (iii) third-party institutional trade matching utilities used to effect transactions in accordance with such utility’s
customary procedures or (b) such other method as may be agreed upon by the Parties and that appear on their face to have been transmitted by an Authorized Person.
“Market Data” means pricing, valuations or other commercially sourced data applicable to any security. Market Data also includes security
identifiers, bond ratings and classification data.
“Market Data Providers” means vendors and analytics providers and any other Person providing Market Data to BNY Mellon.
2
“Oral Instructions” means, with respect to this Agreement, spoken instructions issued to BNY Mellon and reasonably believed by BNY Mellon
to be from an Authorized Person.
“Party” or “Parties” has the meaning set forth in the introductory paragraph.
“Person” or “Persons” means any entity or individual.
“Sanctions” means all economic sanctions laws, rules, regulations, executive orders and requirements administered by any governmental
authority of the United States (including the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury) or any other applicable domestic or foreign authority with jurisdiction over Customer.
“Security Incident” means any known (i) loss or unauthorized access, disclosure, use, alteration or destruction of Customer’s Confidential Information provided to BNY Mellon in accordance with the Agreement and when in BNY Mellon’s
possession or under BNY Mellon’s control
“Series” means the respective portfolios, if any, of Customer listed on Appendix I to this Agreement. If no portfolios are listed on
Appendix I to this Agreement then a reference to a Series means Customer.
“Sponsor” means Franklin Holdings LLC, a Delaware limited liability company.
“Standard of Care” has the meaning set forth in Section 12.1.
“Tax Obligations” means taxes, withholding, certification and reporting requirements, claims for exemptions or refund, interest, penalties,
additions to tax and other related expenses.
“Third Party Data” has the meaning set forth in Section 7.3(a).
| 2. |
APPOINTMENT OF CUSTODIAN; ACCOUNTS
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| 2.1 |
Appointment of Custodian
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| (b) |
Notwithstanding the foregoing, BNY Mellon has no obligation:
|
| (i) |
With respect to any Assets until they are actually received in an Account;
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| (ii) |
To inquire into, make recommendations, supervise or determine the suitability of any transactions affecting any Account or to question any Instructions;
|
3
| (iii) |
To determine the adequacy of title to, or the validity or genuineness of, any Assets received by it or delivered by it pursuant to this Agreement; or
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| (iv) |
With respect to any matters related to: the establishment, maintenance operation or termination of Customer; or the offer, sale or distribution of the shares of, or interests in, Customer.
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| (c) |
Cash held hereunder may be subject to additional deposit terms and conditions issued by BNY Mellon from time to time, including rates of interest and deposit account access.
|
| 2.2 |
Establishment of Accounts
|
BNY Mellon will establish and maintain a separate account for each Series in which BNY Mellon will hold Assets relating to the relevant Series as provided herein (each, an “Account,” and collectively, the “Accounts”). The Account of each Series established under this Agreement shall be maintained separately from the Account of each other Series
and shall be in the name of the applicable Series.
| 3. |
AUTHORIZED PERSONS AND INSTRUCTIONS; ELECTRONIC ACCESS
|
| 3.1 |
Authorized Persons
|
Promptly following the Effective Date, Customer and/or its designee (including any of Customer’s investment managers) will furnish BNY Mellon with one
or more written lists or other documentation acceptable to BNY Mellon specifying the names and titles of, or otherwise identifying, all Persons authorized to act on behalf of Customer (with respect to a particular Series, if applicable) with respect to
this Agreement (each, an “Authorized Person”). Customer will be responsible for keeping such lists and/or other documentation current, and will update such lists and/or other documentation, as necessary from
time to time, pursuant to Instructions.
| 3.2 |
Instructions
|
| (a) |
Except as otherwise expressly provided in this Agreement, BNY Mellon will have no obligation to take any action hereunder unless and until it receives Instructions issued in accordance with this Agreement.
|
| (b) |
Customer will be responsible for ensuring that (i) only Authorized Persons issue Instructions to BNY Mellon and (ii) all Authorized Persons safeguard and treat with extreme care any user and authorization codes, passwords and authentication
keys used in connection with the issuance of Instructions.
|
| (c) |
Where Customer may or is required to issue Instructions, such Instructions will be issued by an Authorized Person.
|
| (d) |
BNY Mellon will be entitled to deal with any Authorized Person until notified otherwise pursuant to Instructions, and will be entitled to act and rely upon any Instruction received by BNY Mellon.
|
4
| (f) |
BNY Mellon may in its sole discretion decline to act upon any Instructions that do not comply with requirements set forth in Section 3.2(e) or that conflict with applicable law or regulations or BNY Mellon’s operating policies and practices,
in which event BNY Mellon will promptly notify Customer.
|
| (g) |
Customer acknowledges that while it is not part of BNY Mellon’s normal practices and procedures to accept Oral Instructions, BNY Mellon may in certain limited circumstances accept Oral Instructions. In such event, such Oral Instructions
will be deemed to be Instructions for purposes of this Agreement. An Authorized Person issuing such an Oral Instruction will promptly confirm such Oral Instruction to BNY Mellon in writing. Notwithstanding the foregoing, Customer agrees that
the fact that such written confirmation is not received by BNY Mellon, or that such written confirmation contradicts the Oral Instruction, will in no way affect (i) BNY Mellon’s reliance on such Oral Instruction or (ii) the validity or
enforceability of transactions authorized by such Oral Instruction and effected by BNY Mellon.
|
| 3.3 |
BNY Mellon Actions Without Instructions
|
Notwithstanding anything to the contrary set forth in this Agreement, Customer hereby authorizes BNY Mellon, without Instructions, to take any administrative or ministerial
actions with respect to the Accounts that it deems reasonably necessary or appropriate to perform its obligations under this Agreement, including the following:
| (a) |
Receive income and other payments due to the Accounts;
|
| (b) |
Endorse for collection checks, drafts or other negotiable instruments received on behalf of the Accounts; and
|
| (c) |
Execute and deliver, solely in its capacity as custodian, certificates, documents or instruments incidental to BNY Mellon’s performance under this Agreement.
|
| 3.4 |
Funds Transfers
|
With respect to each Instruction for a Cash transfer, when the Instruction is to credit or pay a party by both a name and a unique numeric or alpha-numeric identifier (e.g., IBAN
or ABA or account number), BNY Mellon and any other bank participating in the Cash
5
transfer will be entitled to rely solely on such numeric or alpha-numeric identifier, even if it identifies a party different from the party named. Such reliance on an identifier
will apply to beneficiaries named in the Instruction, as well as any financial institution that is designated in the Instruction to act as an intermediary in such Cash transfer. To the extent permitted by applicable law, the Parties will be bound by
the rules of any transfer system used to effect a Cash transfer under this Agreement.
| 3.5 |
Electronic Access
|
If Customer elects to use the Electronic Access Services in connection with this Agreement, the use thereof will be subject to any terms and conditions contained in a separate
written agreement between the Parties or their Affiliates. If an Authorized Person elects, with BNY Mellon’s prior consent, to transmit Instructions through a third-party electronic communications service, BNY Mellon will not be responsible or liable
for the reliability or availability of any such service.
| 4. |
AGENTS
|
| 4.1 |
Use of Agents
|
BNY Mellon may appoint agents, including BNY Mellon Affiliates, on such terms and conditions as it deems appropriate to perform its obligations hereunder. Except as otherwise
specifically provided herein, no such appointment will discharge BNY Mellon from its obligations hereunder.
| 5. |
TAX MATTERS
|
| 5.1 |
Responsibility for Taxes
|
Customer will be responsible and liable for all Tax Obligations with respect to any Assets held on behalf of Customer and any transaction related thereto. Customer acknowledges
and agrees that BNY Mellon and its Affiliates are not tax advisers and will not under any circumstances provide tax advice to Customer. Customer will obtain its own independent tax advice for any tax-related matters.
| 5.2 |
Payments
|
Where BNY Mellon receives Instructions to make distributions or transfers out of an Account in order to pay Customer’s third party service providers, Customer acknowledges that in
making such payments BNY Mellon is acting in an administrative or ministerial capacity, and not as the payor, for tax information reporting and withholding purposes.
| 6. |
CREDITS AND ADVANCES
|
| 6.1 |
Advances
|
If BNY Mellon receives an Instruction that, if processed, would result in an overdraft in an Account, BNY Mellon may, in its sole discretion, advance funds in any currency
hereunder.
6
| 6.2 |
Repayment
|
If: (a) BNY Mellon has advanced funds to an Account; (b) an overdraft has occurred in an Account (including overdrafts incurred in connection with funds transfers or foreign
exchange transactions) or (c) Customer is for any other reason indebted to BNY Mellon, Customer agrees to repay BNY Mellon (on demand or upon becoming aware thereof) the amount of such advance, overdraft or indebtedness, plus accrued interest at a rate
then charged by BNY Mellon to its institutional custody clients in the relevant currency.
| 6.3 |
Securing Repayment
|
In order to secure repayment of Customer’s obligations and liabilities relating to a Series (whether or not matured) to BNY Mellon, relating to or arising under this Agreement,
and without limiting BNY Mellon’s rights under applicable law or any other agreement, Customer hereby pledges and grants to BNY Mellon, and agrees BNY Mellon will have to the maximum extent permitted by law, a continuing first lien and security
interest in: (a) all of Customer’s and such Series’ right, title and interest in and to the Account relating to such Series and the Assets now or hereafter held in such Account (including proceeds thereof) and (b) any other property at any time held by
BNY Mellon relating to such Series; provided that Customer does not hereby grant a security interest in any securities issued by an affiliate (as defined in Xxxxxxx 00X xx xxx X.X. Xxxxxxx Xxxxxxx Xxx) of BNY Mellon. Customer represents, warrants and
covenants that it owns the Assets in the Accounts, and such other property at any time held by BNY Mellon relating to Customer, free and clear of all liens, claims and security interests (except as otherwise acknowledged in writing by BNY Mellon), and
that the first lien and security interest granted herein with respect to each Series will be subject to no setoffs, counterclaims or other liens prior to or on a parity with it in favor of any third party (other than specific liens granted preferred
status by statute). Customer will take any additional steps required to assure BNY Mellon of such priority security interest, including notifying third parties or obtaining their consent. BNY Mellon will be entitled to collect from the relevant
Account sufficient Cash for reimbursement. In this regard, BNY Mellon will be entitled to all the rights and remedies of a pledgee, secured creditor and/or securities intermediary under applicable laws, rules and regulations as then in effect as if
Customer or the relevant Series is in default.
| 6.4 |
Setoff
|
BNY Mellon has the right to debit any Cash for any amount payable by Customer in connection with any and all obligations and liabilities (whether or not matured) of Customer
relating to a particular Series to BNY Mellon. In addition to the rights of BNY Mellon under applicable law or any other agreement, at any time when Customer has not honored any of its obligations relating to a Series to XXX Xxxxxx, XXX Xxxxxx will
have the right with prior notice to Customer to retain or set-off against any obligations relating to such Series any cash BNY Mellon may directly or indirectly hold with respect to such Series and any obligations (whether or not matured) that BNY
Mellon may have with respect to such Series in any currency. Any such cash or obligation relating to a Series may be transferred to BNY Mellon in order to effect the above rights. The Accounts or assets of any one particular Series may not be used to
satisfy the obligations of any other Series of the Customer. No lien or security interest in, or right of setoff against, the Accounts or other assets of one particular Series shall apply to another Series of the Trust.
7
| 7. |
STATEMENTS; BOOKS AND RECORDS; THIRD PARTY DATA
|
| 7.1 |
Statements
|
BNY Mellon shall make available to the Customer, on behalf of each Series, daily transactions as promptly as practicable in its ordinary course
processing, after the close of Business on each Business Day. BNY Mellon will make available to Customer, through the Electronic Access Services, a monthly statement (or report for such other time period as the Parties may agree upon from time
to time) reflecting all transfers to or from the Accounts during such month and all holdings in the Accounts as of the last business day of such month (or as of such other date(s) as the Parties may agree from time to time). Customer will promptly
review each such statement and, within ninety (90) days of when such statement is made available by BNY Mellon, notify BNY Mellon of any exception or objection thereto. Notwithstanding the foregoing, Customer may notify BNY Mellon of any such
exceptions or objections at any time; provided, however, that BNY Mellon will not be responsible or liable for any losses that could have been mitigated had such notice been provided during such ninety (90) day period.
| 7.2 |
Books and Records
|
| (a) |
The books and records directly pertaining to the Accounts which are in the possession of BNY Mellon will be the property of Customer. BNY Mellon will identify on its books and records the Assets belonging to Customer with respect to each
Series. Customer and its authorized representatives, including its auditors, will have the right, at Customer’s own expense and with reasonable prior written notice to BNY Mellon, to have reasonable access to those books and records directly
pertaining to the Accounts. Any such access will occur during BNY Mellon’s normal business hours and will be subject to BNY Mellon’s applicable security policies and procedures. Upon Customer’s reasonable request, copies of those books and
records directly pertaining to the Accounts will be provided by BNY Mellon to Customer or its authorized representative.
|
| (b) |
BNY Mellon will furnish to the Customer and Sponsor, no more than once in a 12 month period, (i) and upon request, provide a copy of its most recent SSAE-18 or equivalent external audit report to Customer, which Customer may disclose solely
to its internal or external auditors that are subject to written confidentiality obligations to use reasonable care to safeguard the report and not to disclose the report to any third party or use the report for any purpose other than
evaluating BNY Mellon’s security controls and information relating to BNY Mellon’s policies and procedures and its compliance with such policies and procedures and with the laws applicable to the services,
as the parties may mutually agree upon.
|
| 7.3 |
Third Party Data
|
8
provided to BNY Mellon hereunder (and all Instructions related to Third Party Data), and BNY Mellon makes no assurances or warranties in relation to the accuracy or completeness
of Third Party Data and will not be responsible or liable for any losses or damages incurred as a result of any Third Party Data that is inaccurate or incomplete. BNY Mellon may follow Instructions with respect to Third Party Data, even if such
Instructions direct BNY Mellon to override its usual procedures and data sources or if BNY Mellon, in performing services for itself or others (including services similar to those performed for Customer), receives different Third Party Data for the
same or similar Assets.
| (b) |
Certain Market Data may be the intellectual property of Market Data Providers, which impose additional terms and conditions upon Customer’s use of such Market Data. Such additional terms and conditions can be found on the Data Terms
Website. Customer agrees to those terms and conditions as they are posted on the Data Terms Website from time to time.
|
| 8. |
DISCLOSURES
|
| 8.1 |
Investment of Cash
|
In connection with this Agreement, Customer may issue standing Instructions to invest Cash in one or more sweep investment vehicles. Such investment vehicles may be offered by a
BNY Mellon Affiliate or by a client of BNY Mellon, and BNY Mellon may receive compensation therefrom. By making investment vehicles available, BNY Mellon and its Affiliates will not be deemed to have recommended, endorsed or guaranteed any such
investment vehicle in any way or otherwise to have acted as a fiduciary or agent for, or on behalf of, Customer, its investment manager or any Account. BNY Mellon will have no liability for any loss incurred on any such investments. Customer
understands that Cash may be uninvested if it is received or reconciled to an Account after the applicable deadline to be swept into Customer’s selected investment vehicle.
| 9. |
REGULATORY MATTERS
|
| 9.1 |
USA PATRIOT Act
|
Section 326 of the U.S. Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (including its implementing
regulations) requires BNY Mellon to implement a customer identification program pursuant to which BNY Mellon must obtain certain information from Customer in order to verify Customer’s identity prior to establishing an Account. Accordingly, prior to
establishing an Account, Customer will be required to provide BNY Mellon with certain information, including Customer’s name, physical address, tax identification number and other pertinent identifying information, to enable BNY Mellon to verify
Customer’s identity. Customer acknowledges that BNY Mellon cannot establish an Account unless and until BNY Mellon has successfully performed such verification.
9
| 9.2 |
Sanctions; Anti-Money Laundering
|
| (c) |
Customer will promptly provide to BNY Mellon such information as BNY Mellon reasonably requests in connection with the matters referenced in this Section 9.2, including information regarding (i) the Accounts, (ii) the Assets and the source
thereof, (iii) the identity of any individual or entity having or claiming an interest therein, and (iv) Customer’s anti-money laundering and Sanctions compliance programs and any related records and/or transaction information, including with
respect to any investor, regardless of whether such request is made under USA PATRIOT Act Section 314(b) (where applicable). Customer will cooperate with BNY Mellon and provide assistance reasonably requested by BNY Mellon in connection with
any anti-money laundering and terrorist financing or Sanctions inquiries. Prior to delivering to BNY Mellon the assets of any authorized participant, Customer will obtain from each such authorized participant, and will continue to maintain in
effect throughout the term of this Agreement, any consents or waivers that may be required under applicable law in order to comply with the foregoing obligations.
|
| (d) |
BNY Mellon may decline to act or provide services in respect of any Account, and take such other actions as it, in its reasonable discretion, deems necessary or advisable, in connection with the matters referenced in this Section 9.2. If
BNY
|
10
Mellon declines to act or provide services as provided in the preceding sentence, except as otherwise prohibited by applicable law or official request, BNY Mellon will inform
Customer as soon as reasonably practicable.
| 10. |
COMPENSATION
|
| 10.1 |
Fees and Expenses
|
In consideration of BNY Mellon’s services provided hereunder, the Sponsor will (a) pay to BNY Mellon the fees set forth in the agreed upon fee schedule (as such fee schedule may
be amended by mutual agreement between BNY Mellon and Customer) and (b) reimburse BNY Mellon for any reasonable out-of-pocket and incidental expenses incurred by BNY Mellon in connection therewith. Unless otherwise agreed by the Parties, such amounts
will be payable to BNY Mellon within thirty (30) days of Customer’s receipt of the relevant invoice. Without limiting BNY Mellon’s other rights set forth in this Agreement, BNY Mellon may charge interest on overdue amounts at a rate then charged by
BNY Mellon to its institutional custody clients in the relevant currency.
| 10.2 |
Other Compensation
|
| (a) |
Customer acknowledges that, as part of BNY Mellon’s compensation, BNY Mellon will earn interest on Cash balances held by BNY Mellon (including disbursement balances, balances arising from purchase and sale transactions and when Cash
otherwise remains uninvested) as provided in BNY Mellon’s compensation disclosures.
|
| (b) |
Where a processing error has occurred under this Agreement that results in an unintended gain, provided that Customer is put in the same or equivalent position as it would have been in had such processing error not occurred, any such gain
will be solely for the account of BNY Mellon without any duty to report such gain to Customer.
|
| 11. |
REPRESENTATIONS, WARRANTIES AND COVENANTS
|
| 00.0 |
XXX Xxxxxx
|
| (x) | (x) | XXX Xxxxxx represents and warrants that: (a) it is duly organized, validly existing and in good standing in its jurisdiction of organization; (b) it has the requisite corporate power and authority to enter into and to carry out the transactions contemplated by this Agreement and (c) the individual executing this Agreement on its behalf has the requisite authority to bind BNY Mellon to this Agreement. |
| (b) |
BNY Mellon represents and warrants that it is conducting its business in material compliance with laws applicable to the services hereunder, and has obtained regulatory licenses, approvals and consents necessary to provide the services
contemplated herein.
|
| (c) |
BNY Mellon represents and warrants that the Agreement has been duly authorized, executed and delivered by BNY Mellon and constitutes a valid and
|
11
legally binding obligation of BNY Mellon, enforceable in accordance with its terms, and there is no statute, regulation, rule, order or judgment binding on it, and
no provision of its charter or by-laws, nor of any mortgage, indenture, credit agreement or other contract binding on it or affecting its property, which would prohibit its execution or performance of this Agreement.
| 11.2 |
Customer
|
| (a) |
Customer represents and warrants that: (i) it is duly organized, validly existing and in good standing in its jurisdiction of organization; (ii) it has the requisite corporate power and authority to enter into and to carry out the
transactions contemplated by this Agreement and (iii) the individual executing this Agreement on its behalf has the requisite authority to bind Customer to this Agreement.
|
| (b) |
Customer represents and warrants that all actions taken, or to be taken, by or on behalf of Customer in connection with establishing, maintaining, operating or terminating Customer (including, any offer, sale or distribution of the shares
of, or interest in, Customer) shall be done in compliance with all applicable U.S. state and federal securities laws and regulations and all other applicable laws and regulations of all applicable jurisdictions.
|
| (c) |
Customer represents and warrants that this Agreement has been duly authorized, executed and delivered by the Customer, constitutes a valid and legally binding obligation of the Customer, enforceable in
accordance with its terms, and there is no statute, regulation, rule, order or judgment binding on it, and no provision of its charter or by-laws, nor of any mortgage, indenture, credit agreement or other contract binding on it or affecting
its property, which would prohibit its execution or performance of this Agreement
|
| 12. |
LIABILITY
|
| 12.1 |
Standard of Care
|
In performing its duties under this Agreement, BNY Mellon will exercise the standard of care and diligence that a professional custodian for exchange-traded funds would observe in
these affairs taking into account the prevailing rules, practices, procedures and circumstances in the relevant market and shall perform its duties without negligence, fraud, bad faith, willful misconduct or reckless disregard of its duties hereunder
(“Standard of Care”). BNY Mellon shall have no responsibility and shall not be liable for any all losses, damages, costs, charges, expenses or liabilities (including reasonable counsel fees and expenses)
(collectively, “Losses”) except to the extent caused by BNY Mellon’s own bad faith, negligence, willful misconduct or reckless disregard of its duties hereunder.
| 12.2 |
Limitation of Liability
|
| (a) |
BNY Mellon’s liability arising out of or relating to this Agreement will be limited solely to those direct damages that are caused by BNY Mellon’s failure to perform its obligations under this Agreement in accordance with the Standard of
Care. In no event will BNY Mellon or Customer be liable for any indirect, incidental, consequential, exemplary, punitive or special losses or damages, or for any loss
|
12
of revenues, profits or business opportunity, arising out of or relating to this Agreement (whether or not foreseeable and even if BNY Mellon or Customer has been advised of the
possibility of such losses or damages).
| (b) |
Notwithstanding anything to the contrary set forth in this Agreement, in no event will BNY Mellon be liable for any losses or damages arising out of any of the following:
|
| (ii) |
BNY Mellon’s reliance on Instructions;
|
| (iii) |
For any matter with respect to which BNY Mellon is required to act only upon the receipt of Instructions, (A) BNY Mellon’s failure to act in the absence of such Instructions or (B) Instructions that are late or incomplete or do not otherwise
satisfy the requirements of Section 3.2(e), whether or not BNY Mellon acted upon such Instructions;
|
| (iv) |
BNY Mellon receiving or transmitting any data to or from Customer or any Authorized Person via any non-secure method of transmission or communication selected by Customer;
|
| (v) |
Customer’s or an Authorized Person’s decision to hold Cash in any currency; or
|
| (vi) |
The insolvency of any Person.
|
| (c) |
If BNY Mellon is in doubt as to any action it should or should not take, either pursuant to, or in the absence of, Instructions, BNY Mellon may obtain the advice of either reputable counsel of its own choosing at its expense or counsel to
Customer, and BNY Mellon will not be liable for acting in accordance with such advice so long as its actions are consistent with the Standard of Care.
|
| 12.3 |
Force Majeure
|
BNY Mellon will not be responsible or liable for any failure or delay in the performance of its obligations under this Agreement to the extent caused, directly or indirectly, by
any event beyond its reasonable control, including acts of God, strikes or other labor disputes, work stoppages, acts of war, terrorism, general civil unrest, governmental or military actions, legal constraint or the interruption, loss or malfunction
of utilities or
13
communications or computer systems. BNY Mellon will promptly notify Customer upon the occurrence of any such event and will use commercially reasonable efforts to minimize its
effect.
| 12.4 |
Indemnification
|
| (a) |
Subject to the limitations set forth in Section 15.14 and 15.15, Customer will indemnify and hold harmless BNY Mellon from and against all Losses incurred by BNY Mellon arising out of or relating to BNY Mellon’s performance under this
Agreement, except to the extent resulting from BNY Mellon’s failure to perform its obligations under this Agreement in accordance with the Standard of Care. The Parties agree that the foregoing will include reasonable counsel fees and expenses
incurred by BNY Mellon in its successful defense of claims that are asserted by Customer against BNY Mellon arising out of or relating to BNY Mellon’s performance under this Agreement. Any obligations of Customer under this Section 12.4 with
respect to a particular Series will not be satisfied out of the assets of another Series.
|
| 13. |
CONFIDENTIALITY
|
| 13.1 |
Confidentiality Obligations
|
| (b) |
In the event of a declared Security Incident, BNY Mellon will (i) promptly notify Customer, (ii) provide updates to Customer regarding BNY Mellon’s response and (iii) use reasonable efforts to implement measures designed to prevent a
reoccurrence of Security Incidents of a similar nature.
|
14
| 13.2 |
Exceptions
|
The Parties’ respective obligations under Section 13.1 will not apply to any such information: (a) that is, as of the time of its disclosure or thereafter becomes, part of the
public domain through a source other than the receiving Party; (b) that was known to the receiving Party as of the time of its disclosure and was not otherwise subject to confidentiality obligations; (c) that is independently developed by the receiving
Party without reference to such information; (d) that is subsequently learned from a third party not known to be under a confidentiality obligation to the disclosing Party or (e) that is required to be disclosed pursuant to applicable law, rule,
regulation, requirement of any law enforcement agency, court order or other legal process or at the request of a regulatory authority provided, however, that the Party making disclosure pursuant to a court order, legal process or at the request of a
regulatory authority shall first notify the other Party (to the extent permissible). Notwithstanding Section 13.1, the Parties agree that Customer may, subject to the prior review of BNY Mellon, reference BNY Mellon and summarize the material terms of
this Agreement in the registration statement for a series and any other offering memorandum, prospectus or marketing documents related to an offering of shares by Customer to potential investors.
| 14. |
TERM AND TERMINATION
|
| 14.1 |
Term
|
The term of this Agreement will commence on the Effective Date and will continue in effect until terminated in accordance with the provisions herein.
| 14.2 |
Termination
|
| (a) |
Each Party may terminate this Agreement with respect to one or more Series by giving to the counter-Party a notice in writing specifying the date of such termination, which will be not less than ninety (90) days after the date of such
notice.
|
| (b) |
Either Party hereto may terminate this Agreement immediately by sending notice thereof to the other Party upon the happening of any of the following: (i) a Party commences as debtor any case or proceeding under any bankruptcy, insolvency or
similar law, or there is commenced against such Party any such case or proceeding; (ii) a Party commences as debtor any case or proceeding seeking the appointment of a receiver, conservator, trustee, custodian or similar official for such Party
or any substantial part of its property or there is commenced against the Party any such case or proceeding; or (iii) a Party makes a general assignment for the benefit of creditors.
|
| 14.3 |
Effect of Termination
|
Upon termination hereof, Customer will pay to BNY Mellon such compensation as may be due to BNY Mellon, and will reimburse BNY Mellon for other amounts payable or reimbursable to
BNY Mellon hereunder, through the date of termination. BNY Mellon will follow such reasonable Instructions as Customer issues concerning the transfer of custody of records, Assets and other items; provided that (a) BNY Mellon will have no
responsibility
15
or liability for shipping and insurance costs associated therewith and (b) full payment has been made to BNY Mellon of its compensation, costs, expenses and other amounts to which
it is entitled hereunder. If any Assets remain in any Account after termination, BNY Mellon may deliver to Customer such Assets. Upon termination of this Agreement, the Parties agree to cooperate in order to facilitate conversion to a new custodian.
| 14.4 |
Survival
|
Any and all provisions of this Agreement which by their nature or effect are required or intended to be observed, kept or performed after the expiration or termination of this
Agreement will survive the expiration or any termination of this Agreement and remain binding upon and for the Parties’ benefit, including Section 11 (Representations, Warranties and Covenants); Section 12 (Liability); Section 13 (Confidentiality);
Section 14.3 (Effect of Termination); Section 14.4 (Survival); Section 15.3 (Governing Law/Forum); Section 15.14 (Limitations of Liability of the Shareholders); Section 15.15 Several Obligations of the Series; and Section 15.16(Liability of Sponsor).
| 15. |
GENERAL
|
| 15.1 |
Assignment
|
Neither Party may, without the other Party’s prior written consent, assign any of its rights or delegate any of its duties under this Agreement (whether by change of control,
operation of law or otherwise); provided, however that BNY Mellon may, without the prior written consent of Customer, assign this Agreement or any of its rights, or delegate any of its duties hereunder: (a) to any BNY Mellon Affiliate; (b) to any
successor to the business of BNY Mellon to which this Agreement relates, in which event BNY Mellon agrees to provide notice of such successor to Customer or (c) as otherwise permitted in this Agreement; provided further that any entity to which this
Agreement is assigned by BNY Mellon without the prior written consent of Customer pursuant to a foregoing item (a), (b) or (c) will satisfy the requirements for serving as a custodian for a registered investment company. Any purported assignment or
delegation by a Party in violation of this provision will be voidable at the option of the other Party. This Agreement will be binding upon, and inure to the benefit of, the Parties and their respective permitted successors and assigns.
| 15.2 |
Amendment
|
This Agreement may be amended or modified only in a written agreement signed by an authorized representative of each Party. For purposes of the foregoing, email exchanges between
the Parties will not be deemed to constitute a written agreement.
| 15.3 |
Governing Law/Forum
|
| (a) |
The substantive laws of the state of New York (without regard to its conflicts of law provisions) will govern all matters arising out of or relating to this Agreement, including the establishment and maintenance of the Accounts and for
purposes of the Uniform Commercial Code and all issues specified in Article 2(1) of the Hague Securities Convention.
|
16
| (b) |
Each Party irrevocably agrees that all legal actions or proceedings brought by it against the other Party arising out of or relating to this Agreement will be brought solely and exclusively before the state or federal courts situated in New
York City, New York. Each Party irrevocably submits to personal jurisdiction in such courts and waives any objection which it may now or hereafter have based on improper venue or forum non conveniens.
The Parties hereby unconditionally waive, to the fullest extent permitted by applicable law, any right to a jury trial with respect to any such actions or proceedings.
|
| 15.4 |
Business Continuity/Disaster Recovery; Information Security
|
| (b) |
During the term of the Agreement, BNY Mellon will implement and maintain an information security program ("ISP") with written policies and procedures reasonably designed to protect the confidentiality and integrity of Customer’s Confidential
Information provided to BNY Mellon in accordance with the Agreement and when in BNY Mellon’s possession or under BNY Mellon’s control (“Customer Data”). The ISP will include administrative, technical and physical safeguards, appropriate to the
type of Customer Data concerned, reasonably designed to: (i) maintain the integrity, confidentiality and availability of Customer Data; (ii) protect against anticipated threats or hazards to the security or integrity of Customer Data; (iii)
protect against unauthorized access to or use of Customer Data that could result in substantial harm or inconvenience to Customer or its clients, and (iv) provide for secure disposal of Customer Data.
|
| 15.5 |
Non-Fiduciary Status
|
Customer hereby acknowledges and agrees that BNY Mellon is not a fiduciary by virtue of accepting and carrying out its obligations under this Agreement and has not accepted any
fiduciary duties, responsibilities or liabilities with respect to its services hereunder, including with respect to the management, investment advisory or sub-advisory functions of Customer.
| 15.6 |
Notices
|
Other than routine communications in the ordinary course of providing or receiving services hereunder (including Instructions), notices given hereunder will be: (a) addressed to
BNY Mellon or Customer at the address set forth on the signature page (or such other address as either Party may designate in writing to the other Party) and (b) sent by hand delivery, by certified mail, return receipt requested, or by overnight
delivery service, in each case with postage or charges prepaid. All notices given in accordance with this Section will be effective upon receipt.
17
| 15.7 |
Entire Agreement
|
This Agreement constitutes the sole and entire agreement among the Parties with respect to the matters dealt with herein, and merges, integrates and supersedes all prior and
contemporaneous discussions, agreements and understandings between the Parties, whether oral or written, with respect to such matters.
| 15.8 |
No Third Party Beneficiaries
|
This Agreement is entered into solely between, and may be enforced only by, the Parties. Each Party intends that this Agreement will not, and no provision of this Agreement will
be interpreted to, benefit, or create any right or cause of action in or on behalf of, any party or entity other than the Parties.
| 15.9 |
Counterparts/Facsimile
|
This Agreement may be executed in any number of counterparts, each of which will be deemed an original, and said counterparts when taken together will constitute one and the same
instrument and may be sufficiently evidenced by one set of counterparts. This Agreement may also be executed and delivered by facsimile or email with confirmation of delivery and/or receipt.
| 15.10 |
Interpretation
|
The terms and conditions of this Agreement are the result of negotiations between the Parties. The Parties intend that this Agreement will not be construed in favor of or against
a Party by reason of the extent to which such Party or its professional advisors participated in the preparation or drafting of this Agreement.
| 15.11 |
No Waiver
|
No failure or delay by a Party to exercise any right, remedy or power it has under this Agreement will impair or be construed as a waiver of such right, remedy or power. A waiver
by a Party of any provision or any breach of any provision will not be construed to be a waiver by such Party of such provision in any other instance or any succeeding breach of such provision or a breach of any other provision. All waivers will be in
writing and signed by an authorized representative of the waiving Party.
| 15.12 |
Headings
|
All section and subsection headings in this Agreement are included for convenience of reference only and will not be considered in the interpretation of the scope or intent of any
provision of this Agreement.
| 15.13 |
Severability
|
If a court of competent jurisdiction determines that any provision of this Agreement is illegal or invalid for any reason, such illegality or invalidity will not affect the
validity of the remainder of this Agreement. In such case, the Parties will negotiate in good faith to
18
replace each illegal or invalid provision with a valid, legal and enforceable provision that fulfills as closely as possible the original intent of the Parties.
| 15.14 |
Limitations of Liability of the Shareholders
|
It is expressly acknowledged and agreed that the obligations of the Customer hereunder shall not be binding upon any shareholder, Sponsor, officer, employee or agent of the
Customer personally, but shall bind only the trust property of the Customer as provided in its Agreement and Declaration of Trust and By-Laws. This Agreement has been duly authorized, executed and delivered by the Customer and neither such
authorization nor such execution and delivery shall be deemed to have been made by any of them individually or to impose any liability on any of them personally, but shall bind only the trust property of the Customer as provided in its Agreement and
Declaration of Trust and By-Laws.
| 15.15 |
Several Obligations of the Series
|
BNY Mellon agrees that, pursuant to Section 3804(a) of the Delaware Statutory Trust Act, the liabilities of each Series shall be limited such that (a) the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing and relating to this Agreement with respect to a particular Series shall be enforceable against the assets of that particular Series only as though the Bank had separately
contracted with the Customer by separate written instrument with respect to a particular Series, and not against the assets of the Customer generally or the assets of any other Series and (b) none of the debts, liabilities, obligations and expenses
incurred, contracted for, other otherwise existing and relating to this Agreement with respect to the Customer generally and any other Series shall be enforceable against the assets of that particular Series. The parties further acknowledge that the
obligations of the Series hereunder are several and not joint, that no Series shall be liable for any amount owing by another Series and that the Series have executed one instrument for convenience only.
| 15.16 |
Liability of Sponsor
|
It is expressly understood and agreed by the Parties that the to the extent that the Agreement has been executed by the Sponsor on behalf of the Customer that (a) this Agreement
is executed and delivered on behalf of the Customer by the Sponsor, not individually or personally, but solely as the Company’s Sponsor in the exercise of the powers and authority conferred and vested in it; (b) the representations, covenants,
undertakings and agreements herein made by the Customer are made and intended not as personal representations, undertakings and agreements by the Sponsor but are made and intended for the purpose of binding only the Customer; (c) with the exception of
the obligations expressly assumed by the Sponsor in Section 10.1 hereof, nothing herein contained shall be construed as creating any liability on the Sponsor, individually or personally, to perform any covenant of the Customer either expressed or
implied contained herein, all such liability, if any, being expressly waived by the Parties hereto and by any person claiming by, through or under the parties hereto; and (d) under no circumstances shall the Sponsor be personally liable for the payment
of any the Customer’s indebtedness or expenses or be liable for the breach or failure of any obligation, duty, representation, warranty or covenant made or undertaken by the Customer under this Agreement or any other related document.
19
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
| THE BANK OF NEW YORK XXXXXX |
XXXXXXXX XXXXXXXXX HOLDINGS TRUST ON BEHALF OF EACH OF ITS SERIES LISTED ON APPENDIX I By Franklin Holdings, LLC, not in its individual capacity but solely as Sponsor
|
|
By: /s/ Xxxxxxxxxxx Xxxxx
|
By: /s/ Xxxxxxx Xxxxxx
|
|
Name: Xxxxxxxxxxx Xxxxx
|
Name: Xxxxxxx Xxxxxx
|
|
Title: Manating Director
|
Title: Vice President and Chief Financial Officer
|
|
Date: 4/14/2022
|
Date: 2/24/2022
|
|
Address for Notice:
|
Address for Notice:
|
|
|
THE BANK OF NEW YORK MELLON
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Legal Dept – Asset Servicing
|
FRANKLIN XXXXXXXXX HOLDINGS TRUST
Xxx Xxxxxxxx Xxxxxxx
Xxx Xxxxx, XX 00000-0000
Attention: _____________________
|
|
20
APPENDIX I
Franklin Responsibly Sourced Gold ETF
21
