Form of Custody Agreement
AGREEMENT, dated as of September 13, 2018 and effective as of October 1, 2018, by and between ProShares Trust II, a Delaware statutory trust, having its principal office and place of business at 7501 Wisconsin Avenue, Suite 1000E, Bethesda, MD 20814 (the Trust), on behalf of its series listed on Schedule II hereto and all future series of the Trust, and The Bank of New York Mellon, a New York corporation authorized to do a banking business, having its principal office and place of business at 225 Liberty Street, New York, New York 10286 (Custodian).
W I T N E S E T H:
That for and in consideration of the mutual promises hereinafter set forth the Trust and Custodian agree as follows:
Whenever used in this Agreement, the following words shall have the meanings set forth below:
1. Authorized Person shall be any person duly authorized by the Trust to execute any Certificate or to give any Oral Instruction with respect to one or more Accounts, such persons to be designated in a Certificate annexed hereto as Schedule I hereto or such other Certificate as may be received by Custodian from time to time.
2. Book-Entry System shall mean the Federal Reserve/Treasury book-entry system for receiving and delivering securities, its successors and nominees.
3. Business Day shall mean any day on which Custodian and relevant Depositories are open for business.
4. Certificate shall mean any notice, instruction, or other instrument in writing, authorized or required by this Agreement to be given to Custodian, which is actually received by Custodian by letter or facsimile transmission and signed on behalf of the Trust by an Authorized Person or a person reasonably believed by Custodian to be an Authorized Person.
5. Composite Currency Unit shall mean the Euro or any composite currency unit consisting of the aggregate of specified amounts of specified currencies, as such unit may be constituted from time to time.
6. Custodian Affiliate shall mean any office, branch or subsidiary of The Bank of New York Mellon Corporation.
7. Depository shall include (a) the Book-Entry System, (b) the Depository Trust Company, (c) any other clearing agency or securities depository registered with the Securities and Exchange Commission identified to the Trust from time to time, and (d) the respective successors and nominees of the foregoing.
8. Economic Sanctions Compliance Program shall mean those programs, policies, procedures and measures designed to ensure compliance with, and prevent violations of, Sanctions.
9. Foreign Depository shall mean (a) Euroclear, (b) Clearstream Banking, societe anonyme, (c) each eligible securities depository, and (d) the respective successors and nominees of the foregoing.
10. Instructions shall mean communications actually received by Custodian by S.W.I.F.T., tested telex, letter, facsimile transmission, or other method or system specified by Custodian as available for use in connection with the services hereunder.
11. Oral Instructions shall mean verbal instructions received by Custodian from an Authorized Person or from a person reasonably believed by Custodian to be an Authorized Person.
12. Sanctions shall mean all economic sanctions, laws, rules, regulations, executive orders and requirements administered by any governmental authority of the U.S. (including the U.S. Office of Foreign Assets Control), and the European Union (including any national jurisdiction or member state thereof), in addition to any other applicable authority with jurisdiction over the Trust.
13. Series shall mean the various portfolios of the Trust listed on Schedule II hereto and all future series of the Trust.
14. Securities shall include, without limitation, any common stock and other equity securities, bonds, debentures and other debt securities, notes, mortgages or other obligations, and any instruments representing rights to receive, purchase, or subscribe for the same, or representing any other rights or interests therein (whether represented by a certificate or held in a Depository or by a Subcustodian).
15. Subcustodian shall mean a bank (including any branch thereof) or other financial institution (other than a Foreign Depository) located outside the U.S., which is utilized by Custodian in connection with the purchase, sale or custody of Securities or cash hereunder and identified to the Trust from time to time, and their respective successors and nominees.
16. Transfer Agent shall mean The Bank of New York Mellon or an affiliate, subject to a separate Transfer Agency and Service Agreement entered into between the parties, or any successor transfer agent identified to Custodian in a Certificate.
APPOINTMENT OF CUSTODIAN; ACCOUNTS;
REPRESENTATIONS, WARRANTIES, AND COVENANTS
1. (a) Effective as of October 1, 2018, the Trust hereby appoints Custodian as custodian of all Securities and cash at any time delivered to Custodian during the term of this Agreement, and authorizes Custodian to hold Securities in registered form in its name or the name of its nominees. Custodian hereby accepts such appointment and agrees to establish and maintain one or more securities accounts and cash accounts for each Series in which Custodian will hold Securities and cash as provided herein and as reasonably required to effect Instructions and Oral Instructions. Custodian shall maintain books and records segregating the assets of each Series from the assets of any other Series. Such accounts (each, an Account; collectively, the Accounts) shall be in the name of the Trust.
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(b) Custodian may from time to time establish on its books and records such sub-accounts within each Account as an Authorized Person and Custodian may agree upon (each a Special Account), and Custodian shall reflect therein such assets as the Trust may specify in a Certificate or Instructions.
(c) Custodian may from time to time establish pursuant to a written agreement with and for the benefit of a broker, dealer, futures commission merchant or other third party identified in a Certificate or Instructions such accounts on such terms and conditions as the Trust and Custodian shall agree, and Custodian shall transfer to such account such Securities and money as the Trust may specify in a Certificate or Instructions.
(d) If, pursuant to an Instruction, Custodian enters into, and becomes a party to, an agreement with a Series and a futures commission merchant regarding margin (a Tri-Party Agreement), Custodian shall perform its obligations under such Tri-Party Agreement in accordance with the agreed-upon terms thereof. Alternatively, Custodian may deliver Securities or cash, in accordance with an Instruction, to a futures commission merchant for purposes of margin requirements in accordance with Rule 17f-6 under the Investment Company Act of 1940, as amended (1940 Act), as if the Trust was subject to such rules.
2. The Trust hereby represents and warrants, which representations and warranties shall be continuing and shall be deemed to be reaffirmed upon each delivery of a Certificate or each giving of Oral Instructions or Instructions by the Trust, that:
(a) The Trust is duly organized and existing under the laws of the jurisdiction of its organization, with full power to carry on its business as now conducted, to enter into this Agreement, and to perform its obligations hereunder;
(b) This Agreement has been duly authorized, executed and delivered by the Trust, and constitutes a valid and legally binding obligation of the Trust, enforceable in accordance with its terms;
(c) The Trust is conducting its business in material compliance with all applicable laws and requirements, both state and federal, and has obtained all regulatory licenses, approvals and consents necessary to carry on its business as now conducted;
(d) The Trust will not knowingly use the services provided by Custodian hereunder in any manner that is, or will result in, a violation of any law, rule or regulation applicable to the Trust;
(e) The Trust is fully informed of the protections and risks associated with various methods of transmitting Instructions and Oral Instructions and delivering Certificates to Custodian, shall, and shall cause each Authorized Person, to safeguard and treat with extreme care any user and authorization codes, passwords and/or authentication keys, understands that there may be more secure methods of transmitting or delivering the same than the methods selected by it, agrees that the security procedures (if any) to be utilized provide a commercially reasonable degree of protection in light of its particular needs and circumstances, and acknowledges and agrees that Instructions need not be reviewed by Custodian, may conclusively be presumed by Custodian to have been given by person(s) duly authorized, and may be acted upon as given;
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(f) The Trust shall impose and maintain restrictions on the destinations to which cash may be disbursed by Instructions to ensure that each disbursement is for a proper purpose; and
(g) The Trust has the right to make the pledge and grant the security interest and security entitlement to Custodian contained in Section 1 of Article V hereof, free of any right of redemption or prior claim of any other person or entity, such pledge and such grants shall have a first priority subject to no setoffs, counterclaims, or other liens or grants prior to or on a parity therewith, and it shall take such additional steps as Custodian may require to assure such priority.
3. Custodian hereby represents and warrants, which representations and warranties shall be continuing and shall be deemed to be reaffirmed each day, that:
(a) It is duly organized and existing under the laws of the jurisdiction of its organization, with full power to carry on its business as now conducted, to enter into this Agreement, and to perform its obligations hereunder;
(b) This Agreement has been duly authorized, executed and delivered by Custodian, and constitutes a valid and legally binding obligation of Custodian, enforceable in accordance with its terms;
(c) It is conducting its business in substantial compliance with all applicable laws and requirements, both state and federal;
(d) It has obtained all regulatory licenses, approvals and consents necessary to carry on its business as now conducted; and
(e) It has in place and shall maintain physical, electronic and procedural safeguards reasonably designed to protect the availability, security, confidentiality and integrity of, and to prevent unauthorized access to or use of, any and all books, records and information related to the Trust.
4. The Trust hereby covenants that it shall from time to time complete and execute and deliver to Custodian upon Custodians request a Form FR U-1 (or successor form) whenever the Trust borrows from Custodian any money to be used for the purchase or carrying of margin stock as defined in Federal Reserve Regulation U.
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CUSTODY AND RELATED SERVICES
1. (a) Subject to the terms hereof, the Trust hereby authorizes Custodian to hold any Securities received by it from time to time for the Trusts account including as a result of any corporate action. Custodian shall be entitled to utilize, subject to subsection (c) of this Section 1, Depositories, Subcustodians and, subject to subsection (d) of this Section 1, Foreign Depositories, to the extent required in connection with its performance hereunder. Securities and cash held in a Depository or Foreign Depository will be held subject to the rules, terms and conditions of such entity. Securities and cash held through Subcustodians shall be held subject to the terms and conditions of Custodians agreements with such Subcustodians. Subcustodians may be authorized to hold Securities in Foreign Depositories in which such Subcustodians participate. Unless otherwise required by local law or practice or a particular subcustodian agreement, Securities deposited with a Subcustodian, a Depository or a Foreign Depository will be held in a commingled account, in the name of Custodian, holding only Securities held by Custodian as custodian for its customers. Custodian shall identify on its books and records the Securities and cash belonging to the Trust, whether held directly or indirectly through Depositories, Foreign Depositories or Subcustodians. Custodian shall segregate on its books all such Securities and cash from assets belonging to Custodian. Custodian shall, directly or indirectly through Subcustodians, Depositories or Foreign Depositories, to the extent feasible, to hold Securities in the country or other jurisdiction in which the principal trading market for such Securities is located, where such Securities are to be presented for cancellation and/or payment and/or registration, or where such Securities are acquired. Custodian at any time may cease utilizing any Subcustodian and/or may replace a Subcustodian with a different Subcustodian (the Replacement Subcustodian).
(b) Unless Custodian has received a Certificate or Instructions to the contrary, Custodian shall hold Securities indirectly through a Subcustodian only if (i) the Securities are not subject to any right, charge, security interest, lien or claim of any kind in favor of such Subcustodian or its creditors or operators, including a receiver or trustee in bankruptcy or similar authority, except for a claim of payment for the safe custody or administration of Securities on behalf of the Trust by such Subcustodian, and (ii) beneficial ownership of the Securities is freely transferable without the payment of money or value other than for safe custody or administration.
(c) With respect to each Depository, Custodian (i) shall exercise reasonable care, and diligence in accordance with reasonable commercial standards in discharging its duties as a securities intermediary to obtain and thereafter maintain Securities or financial assets deposited or held in such Depository, and (ii) will provide, promptly upon request by the Trust, such reports as are available concerning the internal accounting controls and financial strength of Custodian.
(d) With respect to each Foreign Depository, Custodian shall exercise reasonable care, prudence, and diligence (i) to provide the Trust with an analysis of the custody risks associated with maintaining assets with the Foreign Depository, and (ii) to monitor such custody risks on a continuing basis and promptly notify the Trust of any material change in such risks. The Trust acknowledges and agrees that such analysis and monitoring shall be made on the basis of, and limited by, information gathered from Subcustodians or through publicly available information otherwise obtained by Custodian, and shall not include any evaluation of Country Risks. As used herein the term Country Risks shall mean with respect to any Foreign Depository: (a) the financial infrastructure of the country in which it is organized, (b) such countrys prevailing custody and settlement practices, (c) nationalization, expropriation or other governmental actions, (d) such countrys regulation of the banking or securities industry, (e) currency controls, restrictions, devaluations or fluctuations, and (f) market conditions which affect the order execution of securities transactions or affect the value of securities.
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2. Custodian shall furnish the Trust with an advice of daily transactions (including a confirmation of each transfer of Securities) and a monthly summary of all transfers to or from the Accounts and such other reporting on such frequency as the Trust may reasonably request.
3. Custodian shall provide information or reports to the Trust or the Trusts Chief Compliance Officer or any Authorized Person as may be reasonably requested.
4. With respect to all Securities held hereunder, Custodian shall, unless otherwise instructed to the contrary:
(a) Receive all income and other payments and advise the Trust as promptly as practicable of any such amounts due but not paid;
(b) Present for payment and receive the amount paid upon all Securities which may mature and advise the Trust as promptly as practicable of any such amounts due but not paid;
(c) Forward to the Trust copies of all information or documents that it may actually receive from an issuer of Securities which, in the opinion of Custodian, are intended for the beneficial owner of Securities;
(d) Execute, as custodian, any certificates of ownership, affidavits, declarations or other certificates under any tax laws now or hereafter in effect in connection with the collection of bond and note coupons;
(e) Hold directly or through a Depository, a Foreign Depository or a Subcustodian all rights and similar Securities issued with respect to any Securities credited to an Account hereunder; and
(f) Endorse for collection checks, drafts or other negotiable instruments.
5. (a) Custodian shall notify the Trust of rights or discretionary actions with respect to Securities held hereunder, and of the date or dates by when such rights must be exercised or such action must be taken, provided that Custodian has actually received, from the issuer or the relevant Depository (with respect to Securities issued in the United States) or from the relevant Subcustodian, Foreign Depository, or a nationally or internationally recognized bond or corporate action service to which Custodian subscribes, timely notice of such rights or discretionary corporate action or of the date or dates such rights must be exercised or such action must be taken. Absent actual receipt of such notice, Custodian shall have no liability for failing to so notify the Trust.
(b) Whenever Securities (including, but not limited to, warrants, options, tenders, options to tender or non-mandatory puts or calls) confer discretionary rights on the Trust or provide for discretionary action or alternative courses of action by the Trust, the Trust shall be responsible for making any decisions relating thereto and for directing Custodian to act. In order for Custodian to act, it must receive the Trusts Certificate or Instructions at Custodians offices, addressed as Custodian may from time to time request, not later than noon (New York time) at least two (2) Business Days prior to the last scheduled date to act with respect to such Securities (or such earlier date or time as Custodian may specify to the Trust). Absent Custodians timely receipt of such Certificate or Instructions, Custodian shall not be liable for failure to take any action relating to or to exercise any rights conferred by such Securities.
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6. All voting rights with respect to Securities, however registered, shall be exercised by the Trust or its designee. Custodian will make available to the Trust proxy voting services upon the request of, and for the jurisdictions selected by, the Trust in accordance with terms and conditions to be mutually agreed upon by Custodian and the Trust.
7. Custodian shall promptly advise the Trust upon Custodians actual receipt of notification of the partial redemption, partial payment or other action affecting less than all Securities held by the Custodian on behalf of its customers, including the Trust. If Custodian, any Subcustodian, any Depository or any Foreign Depository holds any Securities in which the Trust has an interest as part of a fungible mass, Custodian, such Subcustodian, Depository or Foreign Depository may select the Securities to participate in such partial redemption, partial payment or other action in any non-discriminatory manner that it customarily uses to make such selection.
8. Custodian shall not under any circumstances accept bearer interest coupons which have been stripped from United States federal, state or local government or agency securities unless explicitly agreed to by Custodian in writing.
9. The Trust shall be liable for all taxes, assessments, duties and other governmental charges, including any interest or penalty with respect thereto (Taxes), with respect to any cash or Securities held on behalf of the Trust or any transaction related thereto. The Trust shall indemnify Custodian and each Subcustodian for the amount of any Tax that Custodian, any such Subcustodian or any other withholding agent is required under applicable laws (whether by assessment or otherwise) to pay on behalf of, or in respect of income earned by or payments or distributions made to or for the account of, the Trust (including any payment of Tax required by reason of an earlier failure to withhold). Custodian shall, or shall instruct the applicable Subcustodian or other withholding agent to, withhold the amount of any Tax which is required to be withheld under applicable U.S. or foreign law upon collection of any dividend, interest or other distribution made with respect to any Security and any proceeds or income from the sale, loan or other transfer of any Security. In the event that Custodian or any Subcustodian is required under applicable law to pay any Tax on behalf of the Trust, Custodian is hereby authorized to withdraw cash from any cash account in the amount required to pay such Tax and to use such cash, or to remit such cash to the appropriate Subcustodian or other withholding agent, for the timely payment of such Tax in the manner required by applicable law. If the aggregate amount of cash in all cash accounts is not sufficient to pay such Tax, Custodian shall promptly notify the Trust of the additional amount of cash (in the appropriate currency) required, and the Trust shall directly deposit such additional amount in the appropriate cash account promptly after receipt of such notice, for use by Custodian as specified herein. In the event that Custodian reasonably believes that Trust is eligible, pursuant to applicable law or to the provisions of any tax treaty, for a reduced rate of, or exemption from, any Tax which is otherwise required to be withheld or paid on behalf of the Trust under any applicable law, Custodian shall, or shall instruct the applicable Subcustodian or withholding agent to, either withhold or pay such Tax at such reduced rate or refrain from withholding or paying such Tax, as appropriate; provided that Custodian shall have received from the Trust all documentary evidence of residence or other qualification for such reduced rate or exemption required to be received under such applicable law or treaty. Custodian shall, or shall
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instruct the applicable Subcustodian or other withholding agent to, file all necessary claims for exemptions or refunds with respect to any Taxes withheld in any non-U.S. jurisdiction. In the event that Custodian reasonably believes that a reduced rate of, or exemption from, any Tax is obtainable only by means of an application for the Trust, Custodian and the applicable Subcustodian shall have no responsibility for the accuracy or validity of any forms or documentation provided by the Trust to Custodian hereunder. Custodian agrees to provide any information requested by the Trust that is necessary for the Trust to file any required Tax reports or returns or that is necessary for the Trust to reclaim Taxes already paid. The Trust hereby agrees to indemnify and hold harmless Custodian and each Subcustodian in respect of any liability arising from any underwithholding or underpayment of any Tax which results from the inaccuracy or invalidity of any such forms or other documentation, and such obligation to indemnify shall be a continuing obligation of the Trust, its successors and assigns notwithstanding the termination of this Agreement.
10. (a) For the purpose of settling Securities and foreign exchange transactions, the Trust shall provide Custodian with sufficient immediately available funds for all transactions by such time and date as conditions in the relevant market dictate. As used herein, sufficient immediately available funds shall mean either (i) sufficient cash denominated in U.S. dollars to purchase the necessary foreign currency, or (ii) sufficient applicable foreign currency, to settle the transaction. Custodian shall provide the Trust with immediately available funds each day which result from the actual settlement of all sale transactions, based upon advices received by Custodian from Subcustodians, Depositories and Foreign Depositories. Such funds shall be in U.S. dollars or such other currency as the Trust may specify to Custodian.
(b) Any foreign exchange transaction effected by Custodian in connection with this Agreement may be entered with Custodian or a Custodian Affiliate acting as principal or otherwise through customary banking channels. The Trust may issue a standing Certificate or Instructions with respect to foreign exchange transactions, but Custodian may establish rules or limitations concerning any foreign exchange facility made available to the Trust. The Trust shall bear all risks of investing in Securities or holding cash denominated in a foreign currency.
(c) To the extent that Custodian has agreed to provide pricing or other information services in connection with this Agreement, Custodian is authorized to utilize any vendor (including brokers and dealers of Securities) reasonably believed by Custodian to be reliable to provide such information. The Trust understands that certain pricing information with respect to complex financial instruments (e.g., derivatives) may be based on calculated amounts rather than actual market transactions and may not reflect actual market values, and that the variance between such calculated amounts and actual market values may or may not be material. Where vendors do not provide information for particular Securities or other property, an Authorized Person may advise Custodian in a Certificate regarding the fair market value of, or provide other information with respect to, such Securities or property as determined by it in good faith. Custodian shall not be liable for any loss, damage or expense incurred as a result of errors or omissions with respect to any pricing or other information utilized by Custodian hereunder.
11. Until such time as Custodian receives a Certificate to the contrary with respect to a particular Security, Custodian may release the identity of the Trust to an issuer which requests such information pursuant to the Shareholder Communications Act of 1985 for the specific purpose of direct communications between such issuer and shareholder.
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PURCHASE AND SALE OF SECURITIES;
CREDITS TO ACCOUNT
1. Promptly after each purchase or sale of Securities by the Trust, the Trust shall deliver to Custodian a Certificate or Instructions, or with respect to a purchase or sale of a Security generally required to be settled on the same day the purchase or sale is made, Oral Instructions specifying all information Custodian may reasonably request to settle such purchase or sale. Custodian shall account for all purchases and sales of Securities on the actual settlement date unless otherwise agreed by Custodian.
2. The Trust understands that when Custodian is instructed to deliver Securities against payment, delivery of such Securities and receipt of payment therefor may not be completed simultaneously. Notwithstanding any provision in this Agreement to the contrary, settlements, payments and deliveries of Securities may be effected by Custodian or any Subcustodian in accordance with (i) the customary or established securities trading or securities processing practices and procedures in the jurisdiction in which the transaction occurs, (ii) local government regulations, (iii) the terms and characteristics of the particular Investment, and (iv) the terms of Instructions, including, without limitation, delivery to a purchaser or dealer therefor (or agent) against receipt with the expectation of receiving later payment for such Securities. The Trust assumes full responsibility for all risks, including, without limitation, credit risks, involved in connection with such deliveries of Securities.
3. Custodian may, as a matter of bookkeeping convenience or by separate agreement with the Trust, credit the Account with the proceeds from the sale, redemption or other disposition of Securities or interest, dividends or other distributions payable on Securities prior to its actual receipt of final payment therefor. All such credits shall be conditional until Custodians actual receipt of final payment and may be reversed by Custodian to the extent that final payment is not received. Payment with respect to a transaction will not be final until Custodian shall have received immediately available funds which under applicable local law, rule and/or practice are irreversible and not subject to any security interest, levy or other encumbrance, and which are specifically applicable to such transaction.
OVERDRAFTS OR INDEBTEDNESS
1. If Custodian should in its sole discretion advance funds on behalf of any Series which results in an overdraft (including, without limitation, any day-light overdraft) because the money held by Custodian in an Account for such Series shall be insufficient to pay the total amount payable upon a purchase of Securities specifically allocated to such Series, as set forth in a Certificate, Instructions or Oral Instructions, or if an overdraft arises in the separate account of a Series for some other reason, including, without limitation, because of a reversal of a conditional credit or the purchase of any currency, or if the Trust is for any other reason indebted to Custodian with respect to a Series, including any indebtedness to The Bank of New York Mellon under a Cash Management and Related Services Agreement, if any (except a borrowing for investment or for temporary or emergency purposes using Securities as collateral pursuant to a separate agreement and subject to the provisions of Section 2 of this Article), such overdraft or indebtedness
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shall be deemed to be a loan made by Custodian to the Trust for such Series payable on demand and shall bear interest from the date incurred at a rate per annum ordinarily charged by Custodian to its institutional customers, as such rate may be adjusted from time to time. In addition, the Trust hereby agrees that Custodian shall to the maximum extent permitted by law have a continuing lien, security interest and security entitlement in and to any property, including, without limitation, any investment property or any financial asset, of such Series at any time held by Custodian for the benefit of such Series or in which such Series may have an interest which is then in Custodians possession or control or in possession or control of any third party acting in Custodians behalf. The Trust authorizes Custodian, in its sole discretion, to charge any such overdraft or indebtedness together with interest due thereon against any balance of account standing to such Series credit on Custodians books.
2. If the Trust borrows money from any bank (including Custodian if the borrowing is pursuant to a separate agreement) for investment or for temporary or emergency purposes using Securities held by Custodian hereunder as collateral for such borrowings, the Trust shall deliver to Custodian a Certificate specifying with respect to each such borrowing: (a) the Series to which such borrowing relates; (b) the name of the bank, (c) the amount of the borrowing, (d) the time and date, if known, on which the loan is to be entered into, (e) the total amount payable to the Trust on the borrowing date, (f) the Securities to be delivered as collateral for such loan, including the name of the issuer, the title and the number of shares or the principal amount of any particular Securities, and (g) a statement specifying whether such loan is for investment purposes or for temporary or emergency purposes and that such loan is in conformance with the Trusts prospectus. Custodian shall deliver on the borrowing date specified in a Certificate the specified collateral against payment by the lending bank of the total amount of the loan payable, provided that the same conforms to the total amount payable as set forth in the Certificate. Custodian may, at the option of the lending bank, keep such collateral in its possession, but such collateral shall be subject to all rights therein given the lending bank by virtue of any promissory note or loan agreement. Custodian shall deliver such Securities as additional collateral as may be specified in a Certificate to collateralize further any transaction described in this Section. The Trust shall cause all Securities released from collateral status to be returned directly to Custodian, and Custodian shall receive from time to time such return of collateral as may be tendered to it. In the event that the Trust fails to specify in a Certificate the Series, the name of the issuer, the title and number of shares or the principal amount of any particular Securities to be delivered as collateral by Custodian, Custodian shall not be under any obligation to deliver any Securities.
SALE AND REDEMPTION OF SHARES
1. Whenever the Trust shall sell any shares issued by the Trust (Shares) it shall deliver to Custodian a Certificate or Instructions, or cause the Trusts Transfer Agent to provide instructions, specifying the amount of money, if any, and the particular Securities and the amount of each Security to be received by Custodian for the sale of such Shares and specifically allocated to an Account for such Series. Upon receipt of such money, if any, and such Securities, Custodian shall credit the same to an Account in the name of the Series for which such money, if any, and such Securities are received.
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2. Whenever the Trust desires Custodian to make a payment, if any, and a delivery of Securities out of the money and Securities held by Custodian hereunder in connection with a redemption of any Shares, it shall furnish to Custodian a Certificate or Instructions, or cause the Trusts Transfer Agent to provide instructions specifying the total amount of money, if any, to be paid, and the particular Securities and amount of each Security to be delivered, for the redemption of such Shares. Custodian shall make any such payment and such delivery of Shares, as directed by a Certificate or Instructions or instructions of the Trusts transfer agent, out of the money and Securities held in an Account of the appropriate Series.
PAYMENT OF DISTRIBUTIONS
1. Whenever the Trust shall determine to pay a distribution on Shares it shall furnish to Custodian Instructions or a Certificate setting forth with respect to the Series specified therein the date of the declaration of such distribution, the total amount payable, and the payment date.
2. Upon the payment date specified in such Instructions or Certificate, Custodian shall pay out of the money held for the account of such Series the total amount payable.
1. (a) In performing all of its duties and obligations hereunder, Custodian shall use the reasonable care and diligence that a professional custodian would observe in these affairs. Except as otherwise provided herein, Custodian shall not be liable for any and all costs, expenses, losses, charges, damages, liabilities or claims, including reasonable attorneys and accountants fees and expenses (collectively, Losses), sustained or incurred by or asserted against the Trust except those Losses arising out of Custodians own negligence, bad faith or willful misconduct in the performance of this Agreement. Custodian shall have no liability whatsoever for the action or inaction of any Depositories or of any Foreign Depositories, except in each case to the extent such action or inaction is a direct result of the Custodians failure to fulfill its duties hereunder. With respect to any Losses incurred by the Trust as a result of the acts or any failures to act by any Subcustodian (other than a Custodian Affiliate), Custodian shall take appropriate action to recover such Losses from such Subcustodian; and Custodians sole responsibility and liability to the Trust shall be limited to amounts so received from such Subcustodian (exclusive of costs and expenses incurred by Custodian). In no event shall Custodian be liable to the Trust or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, nor shall Custodian or any Subcustodian be liable: (i) for acting in accordance with any Certificate or Oral Instructions actually received by Custodian and reasonably believed by Custodian to be given by an Authorized Person; (ii) for conclusively presuming that all Instructions are given only by person(s) duly authorized; (iii) for holding property in any particular country in accordance with the terms of Section 1(d) of Article III, including, but not limited to, Losses resulting from nationalization, expropriation or other governmental actions; regulation of the banking or securities industry; exchange or currency controls or restrictions, devaluations or fluctuations; availability of cash or Securities or market conditions which prevent the transfer of property or execution of Securities transactions or affect the value of property; (iv) for any Losses due to forces beyond the reasonable control of Custodian, and which adversely affect the
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performance by Custodian of its obligations and duties hereunder, including without limitation strikes, work stoppages, acts of war or terrorism, insurrection, revolution, nuclear or natural catastrophes or acts of God, or interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; (v) for the insolvency of any Subcustodian (other than a Custodian Affiliate), any Depository, or, except to the extent such insolvency is a direct result of the Custodians failure to fulfill its duties hereunder, any Foreign Depository; or (vi) for any Losses arising from the applicability of any law or regulation now or hereafter in effect, or from the occurrence of any event, including, without limitation, implementation or adoption of any rules or procedures of a Foreign Depository, which may affect, limit, prevent or impose costs or burdens on, the transferability, convertibility, or availability of any currency or Composite Currency Unit in any country or on the transfer of any Securities, and in no event shall Custodian be obligated to substitute another currency for a currency (including a currency that is a component of a Composite Currency Unit) whose transferability, convertibility or availability has been affected, limited or prevented by such law, regulation or event, and to the extent that any such law, regulation or event imposes a cost or charge upon Custodian in relation to the transferability, convertibility or availability of any cash currency or Composite Currency Unit, such cost or charge shall be for the account of the Trust, and Custodian may treat any account denominated in an affected currency as a group of separate accounts denominated in the relevant component currencies.
(b) Custodian has established and is maintaining a disaster recovery plan and back-up system that is reasonably designed to ensure the Custodians continued performance of its obligations and duties under this Agreement. Upon the occurrence of any business interruption or system delay or failure Custodian shall use commercially reasonable efforts to resume performance as soon as practicable under the circumstances.
(c) Custodian may enter into subcontracts, agreements and understandings with any Custodian Affiliate, whenever and on such terms and conditions as it deems necessary or appropriate to perform its services hereunder. No such subcontract, agreement or understanding shall discharge Custodian from its obligations hereunder.
(d) The Trust agrees to indemnify Custodian and hold Custodian harmless from and against any and all Losses sustained or incurred by or asserted against Custodian by reason of or as a result of any action taken or omitted to be taken by Custodian or otherwise arising out of Custodians performance of this Agreement, including reasonable fees and expenses of counsel incurred in a successful defense of claims by the Trust; provided however, that the Trust shall not indemnify Custodian for those Losses arising out of Custodians or Subcustodians negligence, bad faith or willful misconduct in the performance of this Agreement or the applicable subcustodian agreement. This indemnity shall be a continuing obligation of the Trust, its successors and assigns, notwithstanding the termination of this Agreement. Under no circumstances shall the Trust or any Series be liable to Custodian or any third party for special, indirect or consequential damages, or lost profits or loss of business, arising in connection with this Agreement, even if previously informed of the possibility of such damages and regardless of the form of action. The Trusts indemnification obligations under this Article VIII, Section 1(d) shall survive termination or expiration of this Agreement.
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2. Without limiting the generality of the foregoing, Custodian shall be under no obligation to inquire into, and shall not be liable for:
(a) Any Losses incurred by the Trust or any other person as a result of the receipt or acceptance of fraudulent, forged or invalid Securities, or Securities which are otherwise not freely transferable or deliverable without encumbrance in any relevant market;
(b) The validity of the issue of any Securities purchased, sold or written by or for the Trust, the legality of the purchase, sale or writing thereof, or the propriety of the amount paid or received therefor;
(c) The legality of the sale or redemption of any Shares, or the propriety of the amount to be received or paid therefor;
(d) The legality of the declaration or payment of any distribution by the Trust;
(e) The legality of any borrowing by the Trust;
(f) The legality of any loan of portfolio Securities, nor shall Custodian be under any duty or obligation to see to it that any cash or collateral delivered to it by a broker, dealer or financial institution or held by it at any time as a result of such loan of portfolio Securities is adequate security for the Trust against any loss it might sustain as a result of such loan, which duty or obligation shall be the sole responsibility of the Trust. In addition, Custodian shall be under no duty or obligation to see that any broker, dealer or financial institution to which portfolio Securities of the Trust are lent makes payment to it of any dividends or interest which are payable to or for the account of the Trust during the period of such loan or at the termination of such loan, provided, however that Custodian shall promptly notify the Trust in the event that such dividends or interest are not paid and received when due;
(g) The sufficiency or value of any amounts of money and/or Securities held in any Special Account in connection with transactions by the Trust; whether any broker, dealer, futures commission merchant or clearing member makes payment to the Trust of any variation margin payment or similar payment which the Trust may be entitled to receive from such broker, dealer, futures commission merchant or clearing member, or whether any payment received by Custodian from any broker, dealer, futures commission merchant or clearing member is the amount the Trust is entitled to receive; or
(h) Whether any Securities at any time delivered to, or held by it or by any Subcustodian, for the account of the Trust and specifically allocated to a Series are such as properly may be held by the Trust or such Series under the provisions of such Series then current prospectus or other offering documents, or to ascertain whether any transactions by the Trust, whether or not involving Custodian, are such transactions as may properly be engaged in by the Trust.
3. Custodian may consult with counsel to the Trust or its own external counsel, at the Trusts expense, or with its internal counsel, with respect to any matter arising in connection with the services to be performed by Custodian under this Agreement, and shall promptly advise the Trust of the advice or opinion of such counsel, provided, however, that unless the circumstances do not reasonably permit the giving of notice to the Trust, Custodian shall give to the Trust notice of the counsel it intends to use and await the Trusts approval thereof, which approval shall not be unreasonably withheld, except that no such notice or approval shall be required with respect to any matter or question of law referred solely to Custodians in-house counsel, and Custodian shall give
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prompt after the fact notice where prior notice is not given. Custodian shall be fully protected with respect to anything done or omitted by it in good faith in accordance with the written advice or opinion of either counsel to the Trust or its own counsel, provided such written advice or opinion is consistent with generally accepted industry legal standards.
4. Custodian shall be under no obligation to take action to collect any amount payable on Securities in default, or if payment is refused after due demand and presentment.
5. Custodian shall have no duty or responsibility to inquire into, make recommendations, supervise, or determine the suitability of any transactions affecting any Account.
6. Trust shall cause the Custodian to be paid the fees and charges as may be specifically agreed upon from time to time, and to be reimbursed for out-of-pocket expenses which are a normal incident of the services provided hereunder.
7. In addition to the rights of Custodian under applicable law and other agreements, at any time when a particular Series shall not have honored any of its payment obligations to Custodian for more than 90 days after receipt by the Trust of an undisputed invoice for same, Custodian shall have the right upon notice to such Series to debit any cash account of such Series or the Trust for the undisputed amount payable but unpaid hereunder, and to retain or set-off, against such obligations of such Series, any Securities or cash Custodian or a Custodian Affiliate may directly or indirectly hold for the account of such Series, and any obligations (whether matured or unmatured) that Custodian or a Custodian Affiliate may have to such Series in any currency or Composite Currency Unit. Any such asset of, or obligation to, such Series may be transferred to Custodian and any Custodian Affiliate in order to effect the above rights.
8. The Trust agrees to forward to Custodian a Certificate or Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Custodian. The Trust agrees that the fact that such confirming Certificate or Instructions are not received or that a contrary Certificate or contrary Instructions are received by Custodian shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Custodian. If the Trust elects to transmit Instructions through an on-line communications system offered by Custodian, the Trusts use thereof shall be subject to the Terms and Conditions attached as Appendix I hereto. If Custodian receives Instructions which appear on their face to have been transmitted by an Authorized Person via (i) computer facsimile, email, the Internet or other insecure electronic method, or (ii) secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys, the Trust understands and agrees that Custodian cannot determine the identity of the actual sender of such Instructions and that Custodian shall conclusively presume that such Written Instructions have been sent by an Authorized Person, and the Trust shall be responsible for ensuring that only Authorized Persons transmit such Instructions to Custodian. If the Trust elects (with Custodians prior consent) to transmit Instructions through an on-line communications service owned or operated by a third party, the Trust agrees that Custodian shall not be responsible or liable for the reliability or availability of any such service.
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9. The books and records pertaining to the Trust which are in the possession of Custodian shall be the property of the Trust. Such books and records shall be prepared and maintained as required pursuant to Commodity Futures Trading Commission Regulation 1.31 in connection with the services provided hereunder and as described in the 1940 Act, and the rules thereunder, as if the Trust was subject to such rules. The Trust, its authorized representatives, its auditors and/or any regulator with regulatory authority over the Trust, shall have access to such books and records during Custodians normal business hours. Upon request of the Trust, copies of any such books and records shall be provided by Custodian to the Trust or its authorized representative as promptly as is practicable under the circumstances. Upon request of the Trust, Custodian shall promptly provide in hard copy or on computer disc any records included in any such delivery which are maintained by Custodian on a computer disc, or are similarly maintained. Upon termination or expiration of this Agreement, Custodian will promptly deliver to the Trust or to any designated third party all books and records created and maintained by Custodian as well as any books and records relating to the Trust and maintained but not created by Custodian together with a certification that all such books and records created and maintained by Custodian are accurate and complete.
10. (a) Except to the extent expressly provided to the contrary in this Section 10, each party shall keep confidential any information relating to the other partys business and operation, the Trust or any Series, or the Securities and/or cash held for the Trust or any Series (collectively, Confidential Information) and shall not disclose the other partys Confidential Information to any third party. For the avoidance of doubt, except as is reasonably necessary to provide services to the Trust and each Series, as required by law or regulation, or with the written consent of the Trust, Custodian agrees that it will not disclose Confidential Information to any other division of Custodian and Custodian will not disclose Confidential Information to any parent company, affiliate or subsidiary of Custodian except to the extent set forth in Article VIII, Section 10(b) hereof. Confidential Information shall include, but not be limited to, (a) any data or information that is competitively sensitive material or otherwise not generally known to the public, including, but not limited to, information about product plans, product concepts, product structure, portfolio management strategies, tax strategies, 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 the Trust or Custodian and their respective subsidiaries and affiliated companies; (b) any scientific or technical information, design, process, procedure, formula or improvement that is commercially valuable and secret in the sense that its confidentiality affords the Trust or Custodian 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 by the disclosing party as Confidential Information. Notwithstanding the foregoing, information shall not be Confidential Information and shall not be subject to such confidentiality obligations if: (i) it is necessary for Custodian to release such information in connection with the provision of services under this Agreement provided that the recipient of such Confidential Information is subject to a duty of confidentiality; (ii) such Confidential Information at the time of disclosure is in the public domain; (iii) such Confidential Information is learned by the receiving party from a third party unless the receiving party knew or should have known that such third party owed a duty of confidentiality to the disclosing party; (iv) such Confidential Information is known to or developed by the receiving party independently of information disclosed by the other party under this Agreement; or (v) it is requested or required to be disclosed pursuant to a subpoena, applicable law, regulation or judicial or regulatory process (each such
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disclosure, a Required Disclosure). Other than with respect to supervisory examinations of Custodian by its regulators, Custodian agrees, where the circumstances reasonably permit, and to the extent permitted by law, to provide the Trust with prior notice of any Required Disclosure promptly upon receipt of such request or requirement. Custodian acknowledges and agrees that in connection with its services under this Agreement it receives non-public confidential portfolio holdings information (Portfolio Information) with respect to the Trust. Custodian agrees that, subject to the foregoing provisions of and the exceptions set forth in this Section 10 of Article VIII, Custodian will keep confidential the Trusts Portfolio Information and will not disclose the Trusts Portfolio Information other than pursuant to a written Certificate or Instructions; provided that without the need for such a written Certification or Instructions and notwithstanding any other provision of this Section 10 of Article VIII to the contrary, the Trusts Portfolio Information may be disclosed to third party pricing services which are engaged by Custodian in connection with the provision of services under this Agreement and which shall be subject to a duty of confidentiality with respect to such Portfolio Information and to the Trusts regulators. The provisions of this Section 10 of Article VIII shall survive termination or expiration of this Agreement.
(b) The Bank of New York Mellon Corporation is a global financial organization that provides services to clients through its affiliates and subsidiaries in multiple jurisdictions (the BNY Mellon Group). The BNY Mellon Group may centralize functions including audit, accounting, risk, legal, compliance, sales, administration, product communication, relationship management, storage, compilation and analysis of customer-related data, and other functions (the Centralized Functions) in one or more affiliates, subsidiaries and third-party service providers. Notwithstanding the foregoing confidentiality obligations of sub-section (a) of this Section, solely in connection with the Centralized Functions, (i) the Trust, on behalf of each Series, consents to the disclosure of and authorizes Custodian to disclose information regarding the Series (Customer-Related Data) to the BNY Mellon Group and to its third-party service providers who are subject to confidentiality obligations with respect to such information and (ii) Custodian may store the names and business contact information of the Trusts employees and representatives on the systems or in the records of the BNY Mellon Group or its service providers. The BNY Mellon Group may aggregate Customer-Related Data with other data collected and/or calculated by the BNY Mellon Group, and notwithstanding anything in this Agreement to the contrary the BNY Mellon Group will own all such aggregated data, and may use such aggregated data in regulatory reports, in marketing materials prepared for the BNY Mellon Groups shareholders, other clients or potential clients, to monitor and enhance its service offerings, and to develop new products and services, provided that the BNY Mellon Group shall not distribute the aggregated data in a format that identifies Customer-Related Data with a particular customer. The Trust confirms that it is authorized to consent to the foregoing.
11. The Custodian shall provide the Trust with any report obtained by the Custodian on the system of internal accounting control of Depositories, Subcustodians and Foreign Depositories, and with such reports on its own system of internal accounting control as the Trust may reasonably request from time to time.
12. Custodian shall have no duties or responsibilities whatsoever except such duties and responsibilities as are specifically set forth in this Agreement, and no covenant or obligation shall be implied against Custodian in connection with this Agreement.
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13. (a) Throughout the term of this Agreement, the Trust (i) shall maintain, and comply with, an Economic Sanctions Compliance Program which includes measures to accomplish effective and timely scanning of all relevant data with respect to its clients and with respect to incoming or outgoing assets or transactions; (ii) shall ensure that neither the Trust nor any of its affiliates, directors, officers, employees or clients (to the extent such clients are covered by this Agreement) is an individual or entity that is, or is owned or controlled by an individual or entity that is: (A) the target of Sanctions, or (B) located, organized or resident in a country or territory that is, or whose government is, the target of Sanctions; and (iii) shall not, directly or indirectly, use the Accounts in any manner that would result in a violation of Sanctions.
(b) The Trust will promptly provide to the Custodian such information as the Custodian reasonably requests in connection with the matters referenced in this Article VIII, Section 13, including information regarding the Accounts, the assets held or to be held in the Accounts, the source thereof, and the identity of any individual or entity having or claiming an interest therein (to the extent known by the Trust). The Custodian 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 Article VIII, Section 13. If the Custodian declines to act or provide services as provided in the preceding sentence, except as otherwise prohibited by applicable law or official request, the Custodian will inform the Trust as soon as reasonably practicable.
1. The term of this Agreement shall be three (3) years (the Initial Term), commencing October 1, 2018 and shall automatically renew for additional one-year terms (each, a Renewal Term) unless earlier terminated as provided below.
2. Notwithstanding Section 1 of this Article IX, beginning on the first day of the second year of this Agreement, the Trust may terminate this Agreement at any time upon at least ninety (90) days written notice to the Custodian at its address set forth in Section 2 of Article X hereof.
3. Notwithstanding Section 1 of this Article IX, either party hereto may terminate this Agreement in the event the other party breaches any material provision of this Agreement, provided that the non-breaching party gives written notice of such breach to the breaching party and the breaching party does not cure such violation within thirty (30) days following receipt of such notice.
4. Notwithstanding Section 1 of this Article IX, 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; (iii) a party makes a general assignment for the benefit of creditors; or (iv) a party states in any medium, written, electronic or otherwise, any public communication or in any other public manner its inability to
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pay debts as they come due. Either party hereto may exercise its termination right under this Article IX, Section 4 at any time after the occurrence of any of the foregoing events notwithstanding that such event may cease to be continuing prior to such exercise, and any delay in exercising this right shall not be construed as a waiver or other extinguishment of that right.
5. In the event notice of termination is given by the Trust, it shall be accompanied by a letter from an officer of the Trust electing to terminate this Agreement and designating a successor custodian or custodians, each of which shall be a bank or trust company having not less than $2,000,000 aggregate capital, surplus and undivided profits. In the event such notice is given by Custodian, the Trust shall, on or before the termination date, deliver to Custodian a letter from an officer of the Trust designating a successor custodian or custodians. In the absence of such designation by the Trust, Custodian may designate a successor custodian which shall be a bank or trust company having not less than $2,000,000 aggregate capital, surplus and undivided profits. The parties agree to cooperate in the execution of documents and performance of other actions necessary or desirable in order to facilitate the succession of the new custodian. If no successor custodian shall be appointed, the Custodian shall in like manner transfer each Series Securities and cash in accordance with Instructions. Upon the date set forth in such notice this Agreement shall terminate, and Custodian shall upon receipt of a notice of acceptance by the successor custodian on that date deliver directly to the successor custodian all Securities and money then owned by the Trust and held by it as Custodian. For purposes of clarification, Custodian shall not charge the Trust or any successor custodian any fees or expenses associated with delivering all of the Securities and money then owned by the Trust and held by it as Custodian directly to the successor custodian.
6. Termination of this Agreement with respect to one Series shall not constitute a termination of this Agreement with respect to the other Series.
1. The Trust agrees to furnish to Custodian a new Certificate of Authorized Persons in the event of any change in the then present Authorized Persons. Until such new Certificate is received, Custodian shall be fully protected in acting upon Certificates or Oral Instructions of such present Authorized Persons.
2. Any notice or other instrument in writing, authorized or required by this Agreement to be given to Custodian, shall be sufficiently given if addressed to Custodian and delivered (a) by hand, (b) by first class registered or certified mail, postage prepaid, return receipt requested, or (c) by a nationally recognized overnight courier at its offices at 225 Liberty Street, New York, New York 10286, or at such other place as Custodian may from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required by this Agreement to be given to the Trust shall be sufficiently given if addressed to the Trust and delivered (a) by hand, (b) by first class registered or certified mail, postage prepaid, return receipt requested, or (c) by a nationally recognized overnight courier at its offices at 7501 Wisconsin Avenue, Suite 1000E, Bethesda, MD 20814, Attention: General Counsel, with a copy to 7501 Wisconsin Avenue, Suite 1000E, Bethesda, MD 20814, Attention: Head of Financial Administration Operations or at such other place as the Trust may from time to time designate in writing.
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4. Each and every right granted to either party hereunder or under any other document delivered hereunder or in connection herewith, or allowed it by law or equity, shall be cumulative and may be exercised from time to time.
5. No failure on the part of either party to exercise, and no delay in exercising, any right will operate as a waiver thereof, nor will any single or partial exercise by either party of any right preclude any other or future exercise thereof or the exercise of any other right.
6. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any exclusive jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected thereby, and if any provision is inapplicable to any person or circumstances, it shall nevertheless remain applicable to all other persons and circumstances.
7. This Agreement may not be amended, changed or modified in any manner except by a written agreement executed by Custodian and the Trust, except that any amendment to Schedule I hereto need be signed only by the Trust.
8. This Agreement shall extend to and shall be binding upon the parties hereto, and their respective successors and assigns; provided, however, that this Agreement shall not be assignable or delegable by either party without the written consent of the other party.
9. This Agreement shall be construed in accordance with the substantive laws of the State of New York, without regard to conflicts of laws principles thereof. The Trust and Custodian each hereby consent to the jurisdiction of a state or federal court situated in New York City, New York in connection with any dispute arising hereunder. The Trust and Custodian each hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that such proceeding brought in such a court has been brought in an inconvenient forum. The Trust and Custodian each hereby irrevocably waives any and all rights to trial by jury in any legal proceeding arising out of or relating to this Agreement, to the fullest extent permitted by law.
10. The Trust hereby acknowledges that Custodian is subject to federal laws, including the Customer Identification Program (CIP) requirements under the USA PATRIOT Act and its implementing regulations, pursuant to which Custodian must obtain, verify and record information that allows Custodian to identify the Trust. Accordingly, prior to opening an Account hereunder Custodian will ask the Trust to provide certain information including, but not limited to, the Trusts name, physical address, tax identification number and other information that will help Custodian to identify and verify the Trusts identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information. The Trust agrees that Custodian cannot open an Account hereunder unless and until Custodian verifies the Trusts identity in accordance with its CIP.
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11. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts shall, together, constitute only one instrument.
12. This Agreement and any related fee agreement constitute the entire agreement with respect to the matters dealt with herein, and supersede all previous agreements, whether oral or written, and documents with respect to such matters.
13. The parties 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, or the Trust on behalf of another Series, and that the Trust has executed one instrument for convenience only.
14. It is expressly acknowledged and agreed that the obligations of the Trust hereunder shall not be binding upon any of the shareholders, officers, employees or agents of the Trust or Sponsor personally, but shall bind only the trust property of the Trust, as provided in its Amended and Restated Trust Agreement. This Agreement has been signed by an officer of the Trust, acting as such, and such execution and delivery by such officer shall not be deemed to have been made by him or her individually or to impose any liability on him or her personally, but shall bind only the trust property of the Trust as provided in its Amended and Restated Trust Agreement. The provisions of this Article X, Section 14 shall survive termination or expiration of this Agreement.
15. In the event that the Trust establishes one or more additional series with respect to which it desires to have Custodian render services under the terms hereof, it shall so notify Custodian in writing and such additional series shall automatically become Series hereunder as of the date specified in such notice.
16. Custodian shall provide the Trust with a summary of the results of its latest SSAE-18 or equivalent control audit prepared by Custodians external auditors. Annually, Custodian will participate in the Trusts reasonable information security questionnaire processes. The Trust may view Custodians security-related policies and procedures; however, no documentation may be copied, shared, transmitted or removed from Custodian premises, except as mutually agreed. The parties shall mutually agree upon a convenient time and place for such meeting. Not more than once each year, and subject to Custodians reasonable security requirements and availability of personnel, Custodian will at the Trusts request arrange a tour of Custodians data processing facilities for the Trusts subject matter experts. Custodian will also, subject to its reasonable security requirements, permit site visits of its data processing facilities by governmental agencies with regulatory authority over the Trust. In the event that the Trust identifies any control deficiencies, Custodian will discuss such findings with the Trust and if appropriate the parties shall work together to develop a mutually agreeable remediation plan. All nonpublic documentation and information disclosed to the Trust in accordance with this Section shall be deemed proprietary and confidential information of Custodian. The Trust shall not disclose such documentation or information to any third party or use it for any purpose other than evaluating Custodians security controls, except that the Trust may disclose Custodians SSAE-18 summary to the Trusts external auditors provided that such external auditors are required to maintain the confidentiality of the summary and any related information. Custodian shall be reimbursed for any costs and expenses incurred in connection with any review of Custodians security controls.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the Trust and Custodian have caused this Agreement to be executed by their duly authorized officers as of the day and year first above written.
|PROSHARES TRUST II|
|Todd B. Johnson|
|Principal Executive Officer|
|THE BANK OF NEW YORK MELLON|
|Name: Thomas Porrazzo|
|Title: Managing Director|
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CERTIFICATE OF AUTHORIZED PERSONS
(The Trust - Oral and Written Instructions)
The undersigned hereby certifies that he/she is the duly elected and acting ________________________ of __________________________ (the Trust), and further certifies that the following officers or employees of the Trust have been duly authorized in conformity with the Trusts Amended and Restated Trust Agreement to deliver Certificates and Oral Instructions to The Bank of New York Mellon (Custodian) pursuant to the Custody Agreement between the Trust and Custodian dated _______________, 20__ and that the signatures appearing opposite their names are true and correct:
This certificate supersedes any certificate of Authorized Persons you may currently have on file.
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ELECTRONIC SERVICES TERMS AND CONDITIONS
These Electronic Access Terms and Conditions (the Terms and Conditions) set forth the terms and conditions under which The Bank of New York Mellon Corporation and/or its subsidiaries or joint ventures (collectively, BNY Mellon) will provide the entities and its (their) affiliates listed on Schedule A (You and Your) with access to and use of BNY Mellons electronic information delivery site known as BNY Mellon Connect and/or other BNY Mellon-designated access portals (Electronic Access). Access to and use of Electronic Access by You is contingent upon and is in consideration for Your compliance with the terms and conditions set forth below. Electronic Access includes access to BNY Mellon web sites accessible via BNY Mellon Connect and/or other BNY Mellon-designated access portals (Sites), pursuant to which You are able to access products and services provided by BNY Mellon as well as data regarding Your accounts. You may amend Schedule A by delivering a revised version to BNY Mellon.
To facilitate access to Electronic Access, You will furnish BNY Mellon with a written list of the names, and the extent of authority or level of access, of persons You are authorizing to access the Sites, products and services and to use the Electronic Access (Authorized Users) on a read-only basis. In addition, You may also designate Authorized Users who will have authority to enter transactions and provide instructions to BNY Mellon that cause a change in or have an impact on assets held by BNY Mellon for Your accounts (Authorized Transactional Users). Where appropriate, Authorized Users and Authorized Transactional Users are collectively referred to herein as Users. If You wish to allow any third party (such as an investment manager, consultant or third party service provider) or any employee of a third party to have access to Your account information through Electronic Access and be included as a User under these Terms and Conditions, You may designate a third party or employee of a third party as an Authorized User or Authorized Transactional User under these Terms and Conditions and any such third party or employee of a third party so designated by You (and, if a third party is so designated, any employee of such third party designated by such third party) will be included within the definition of Authorized User, Authorized Transactional User, and User as appropriate.
Upon BNY Mellons approval of Users (which approval will not be unreasonably withheld), BNY Mellon will send You a user-id, temporary password and, where applicable, a security identification device for each User. You will be responsible for providing to Users the user-ids, temporary passwords and, where applicable, secure identification devices. You will ensure that any User receiving a secure identification device returns such device immediately following the termination of the Users authorization to access the products and services for which the secure identification device was provided to such User. You are solely responsible for Users access to Electronic Access, and You and Users are solely responsible for the confidentiality of the user-ids and passwords and secure identification devices that are provided to them and will remain responsible for each secure identification device until it is returned to BNY Mellon. You, on behalf of You and Your affiliates, acknowledge and agree that, BNY Mellon will have no duty or obligation to verify or confirm the actual identity of the person who accessed Electronic Access using a validly issued user-id and password (and, where applicable, security identification device) or that the person who accessed Electronic Access using such validly issued user-id and password (and, where applicable, security identification device) is, in fact, a User (whether an Authorized User or an Authorized Transactional User).
You shall not, and shall not permit any User or third party to, breach or attempt to breach any security measures used in connection with Electronic Access or Proprietary Software. Any attempt to circumvent or penetrate any application, network or other security measures used by BNY Mellon or its suppliers in connection with Electronic Access is strictly prohibited.
Proprietary Software: Depending upon the products and services You elect to access through Electronic Access, You may be provided software owned by BNY Mellon or licensed to BNY Mellon by a BNY Mellon Supplier (Proprietary Software). You are granted a limited, non-exclusive, non-transferable license to install the Proprietary Software on Your authorized computer system (including mobile devices registered with BNY Mellon) and to use the Proprietary Software solely for Your own internal purposes in connection with Electronic Access and solely for the purposes for which it is provided to You. You and Your Users may make copies of the Proprietary Software for backup purposes only, provided all copyright and other proprietary information included in the original copy of the Proprietary Software are reproduced in or on such backup copies. You shall not reverse engineer, disassemble, decompile or attempt to determine the source code for, any Proprietary Software. Any attempt to circumvent or penetrate security of the Electronic Access is strictly prohibited.
Use of Data:
Electronic Access may include information and data that is proprietary to the providers of such information or data (Information Providers) or may be used to access Sites that include such information or data from Information Providers. This information and data may be subject to restrictions and requirements which are imposed on BNY Mellon by the Information Providers and which are posted on http://www.bnymellon.com/products/assetservicing/vendoragreement.pdf or any successor web site of which You are provided notice from time to time (the Data Terms Web Site). You will be solely responsible for ensuring that Users comply with the restrictions and requirements concerning the use of proprietary data that are posted on the Data Terms Web Site.
You consent to BNY Mellon, its affiliates and BNY Mellons Suppliers disclosing to each other and using data received from You and Users and, where applicable, Your third parties in connection with these Terms and Conditions (including, without limitation, client data and personal data of Users) (1) to the extent necessary for the provision of Electronic Access; (2) in order for BNY Mellon and its affiliates to meet any of their obligations under these Terms and Conditions to provide Electronic Access; or (3) to the extent necessary for Users to access Electronic Access.
In addition, You permit BNY Mellon to aggregate data concerning Your accounts with other data collected and/or calculated by BNY Mellon. BNY Mellon will own such aggregated data, but will not distribute the aggregated data in a format that identifies You or Your data.
Ownership and Rights:
Electronic Access, including any database, any software (including for the avoidance of doubt, Proprietary Software) and any proprietary data, processes, scripts, information, training materials, manuals or documentation made available as part of the Electronic Access (collectively, the Information), are the exclusive and confidential property of BNY Mellon and/or BNY Mellons suppliers. You may not use or disclose the Information except as expressly authorized by these Terms and Conditions. You will, and will cause Users and Your third parties and their users, to keep the Information confidential by using the same care and discretion that You use with respect to Your own confidential information, but in no event less than reasonable care.
The provisions of this paragraph will not affect the copyright status of any of the Information which may be copyrighted and will apply to all Information whether or not copyrighted.
Nothing in these Terms and Conditions will be construed as giving You or Users any license or right to use the trade marks, logos and/or service marks of BNY Mellon, its affiliates, its Information Providers or BNY Mellons Suppliers.
Any Intellectual Property Rights and any other rights or title not expressly granted to You or Users under these Terms and Conditions are reserved to BNY Mellon, its Information Providers and BNY Mellons Suppliers. Intellectual Property Rights includes all copyright, patents, trademarks and service marks, rights in designs, moral rights, rights in computer software, rights in databases and other protectable lists of information, rights in confidential information, trade secrets, inventions and know-how, trade and business names, domain names (including all extensions, revivals and renewals, where relevant) in each case whether registered or unregistered and applications for any of them and the goodwill attaching to any of them and any rights or forms of protection of a similar nature and having equivalent or similar effect to any of them which may subsist anywhere in the world.
BNY Mellon will be entitled to rely on, and will be fully protected in acting upon, any actions or instructions associated with a user-id or a secure identification device issued to a User until such time BNY Mellon receives actual notice in writing from You of the change in status of the User and receipt of the secure identification device issued to such User. You acknowledge that all commands, directions and instructions, including commands, directions and instructions for transactions issued by a User are issued at Your sole risk. You agree to accept full and sole responsibility for all such commands, directions and instructions and that BNY Mellon, will have no liability for, and you hereby release BNY Mellon from, any losses, liabilities, damages, costs, expenses, claims, causes of action or judgments (including attorneys fees and expenses) (collectively Losses) incurred or sustained by you or any other party in connection with or as a result of BNY Mellons reliance upon or compliance with such commands, directions and instructions.
All commands, directions and instructions involving a transaction entered by an Authorized Transactional User will be treated as an authorized instruction under the applicable Services Agreement(s) between You and BNY Mellon covering accounts, products and services and products provided by BNY Mellon with respect to which Electronic Access is being used whether such Services Agreement is executed prior to or after the execution of these Terms and Conditions.
Although BNY Mellon uses reasonable efforts to provide accurate and up-to-date information through Electronic Access, BNY Mellon, its Content Providers and Information Providers make no warranties or representations under these Terms and Conditions as to accuracy, reliability or comprehensiveness of the content, information or data accessed through Electronic Access. Without limiting the foregoing, some of the content on Electronic Access may be provided by sources unaffiliated with BNY Mellon (Content Providers) and by Information Providers. For that content BNY Mellon is a distributor and not a publisher of such content and has no control over it. Information provided by Information Providers has not been independently verified by BNY Mellon and BNY Mellon makes no representation as to the accuracy or completeness of the content or information provided. Any opinions, advice, statements, services, offers or other information given or provided by Content Providers and Information Providers (including merchants and licensors) are those of the respective authors of such content and not that of BNY Mellon. BNY Mellon will not be liable to You or Users for such content or information in any way nor for any action taken in reliance on such information nor for direct or indirect damages resulting from the use of such information. For purposes of these Terms and Conditions, all information and data, including all proprietary information and materials and all client data, provided to You through Electronic Access are provided on an AS-IS, AS AVAILABLE basis.
BNY Mellon makes no guarantee and does not warrant that Electronic Access or the information and data provided through the Electronic Access are or will be virus-free or will be free of viruses, worms, Trojan horses or other code with contaminating or destructive properties. BNY Mellon will employ commercially reasonable anti-virus software to its systems to protect its systems against viruses.
Some Sites accessed through the use of Electronic Access may include links to websites provided by parties that are not affiliated with BNY Mellon (Third Party Websites). BNY Mellon will not be liable to any person for the content found on such Third Party Websites. BNY Mellon will not be responsible for Third Party Websites that collect information from parties who visit their web sites through links on the Sites. BNY Mellon will not be liable or responsible for any loss suffered by any person as a result of their use of any Third Party Websites that are linked to the BNY Mellon Sites.
BNY Mellon retains complete discretion and authority to add, delete or revise in whole or in part Electronic Access, including its Sites, and to modify from time to time any Proprietary Software provided in conjunction with the use of Electronic Access and/or any of the Sites. To the extent reasonably possible, BNY Mellon will provide notice of such modifications. BNY Mellon may terminate immediately and without advance notice, and without right of cure, any portion or component of Electronic Access or the Sites.
TO THE FULLEST EXTENT PERMITTED BY LAW, THERE IS NO WARRANTY OF MERCHANTABILITY, NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, NO WARRANTY OF QUALITY AND NO WARRANTY OF TITLE OR NONINFRINGEMENT. THERE IS NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING ELECTRONIC ACCESS, THE SITES, ANY PROPRIETARY SOFTWARE, INFORMATION, MATERIALS OR CLIENT DATA.
Limitation of Liability:
IN NO EVENT WILL BNY MELLON, BNY MELLONS SUPPLIERS OR ITS CONTENT PROVIDERS OR INFORMATION PROVIDERS BE LIABLE TO YOU OR ANYONE ELSE UNDER THESE TERMS AND CONDITIONS FOR ANY LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES INCLUDING BUT NOT LIMITED TO, ANY DIRECT DAMAGES, CONSEQUENTIAL DAMAGES, RELIANCE DAMAGES, EXEMPLARY DAMAGES, INCIDENTAL DAMAGES, SPECIAL DAMAGES, PUNITIVE DAMAGES, INDIRECT DAMAGES OR DAMAGES FOR LOSS OF PROFITS, GOOD WILL, BUSINESS INTERRUPTION, USE, DATA, EQUIPMENT OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) THAT RESULT FROM (1) THE USE OF OR INABILITY TO USE ELECTRONIC ACCESS (2) THE CONSEQUENCES OF ANY DECISION MADE OR ACTION OR NON-ACTION TAKEN BY YOU OR ANY OTHER PERSON, OR FOR ANY ERRORS BY YOU IN COMMUNICATING SUCH INFORMATION; (3) THE COST OF SUBSTITUTE ACCESS SERVICES; OR (4) ANY OTHER MATTER RELATING TO THE CONTENT OR ACCESS THROUGH ELECTRONIC ACCESS. BNY MELLON WILL NOT BE LIABLE FOR LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY ARISING FROM ANY USE OF ANY PRODUCT, INFORMATION, PROCEDURE, OR SERVICE OBTAINED THROUGH ELECTRONIC ACCESS. BNY MELLON WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY RESULTING FROM VOLUNTARY SHUTDOWN OF THE SERVER, ELECTRONIC ACCESS, OR ANY OF THE SITES TO ADDRESS TECHNICAL PROBLEMS, COMPUTER VIRUSES, DENIAL OF SERVICES MESSAGES OR OTHER SIMILAR PROBLEMS.
The limitation of liability set forth in this Limitation of Liability section and in other provisions in these Terms and Conditions is in addition to any limitation of liability provisions contained in the Services Agreement and will not supersede or be superseded by limitation of liability provisions contained in the Services Agreement, whether executed prior to or after the execution of these Terms and Conditions, except to the extent specifically set forth in the Services Agreement containing a reference to these Terms and Conditions.
The indemnity provided in herein is in addition to any indemnity and other remedies contained in the Services Agreement and will not supersede or be superseded by the Services Agreement, whether executed prior to or after the execution of these Terms and Conditions, except to the extent specifically set forth in the Services Agreement and expressly stating an intent to modify this Terms and Conditions.
Nothing contained herein will, or be deemed to, alter or modify the rights and remedies of BNY Mellon or Your rights and remedies as set forth in the Services Agreement.
Choice of Law and Forum: Unless otherwise agreed and specified herein, these Terms and Conditions are governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law; You expressly and irrevocably agree that exclusive jurisdiction and venue for any claim or dispute with BNY Mellon, its employees, contractors, officers or directors or relating in any way to Your use of Electronic Access resides in the state or federal courts in New York City, New York; and You further irrevocably agree and expressly and irrevocably consent to the exercise of personal jurisdiction in those courts over any action brought with respect to these Terms and Conditions. BNY Mellon and You hereby waive the right of trial by jury in any action arising out of or related to the BNY Mellon or these Terms and Conditions to the fullest extent permitted by law.
Term and Termination:
Either BNY Mellon or You may terminate these Terms and Conditions and the Electronic Access upon thirty (30) days written notice to the other party.
BNY Mellon may with notice to You immediately terminate access through an Authorized Users user-id and password and may, at its discretion, also terminate access by an Authorized User, without right of cure, in the event of an unauthorized use of an Authorized Users user-id or password, or where BNY Mellon believes there is a security risk created by such access.
BNY Mellon may terminate, with as much advance notice as practicable, Your access or the access of Users to any portion or component of Electronic Access or the Sites in the event a BNY Mellon Supplier, Content Provider or Information Provider prohibits BNY Mellon from permitting You or Users to have access to their information or services.
Promptly upon receiving or giving notice of termination, You will notify all Users of the effective date of the termination.
Upon termination of Your access to Electronic Access, You shall return manuals, documentation, workflow descriptions and the like that are in Your possession or under Your control and all security identification devices.
The Reliance, Disclaimers, Limitation of Liability, Indemnification and Confidentiality provisions of these Terms and Conditions (and other provision of these Terms and Conditions containing disclaimers, limitation of liability and indemnification) shall survive the termination or expiration of these Terms and Conditions.
Miscellaneous: For purposes of clarification, notwithstanding anything to the contrary contained in these Terms and Conditions, the Indemnification (section 8) and Limitation of Liability (section 7) provisions of these Terms and Conditions apply solely to Your access to and use of BNY Mellons electronic information delivery site known as BNY Mellon Connect and/or other BNY Mellon-designated access portals, and such provisions of these Terms and Conditions do not modify, amend or supersede any provisions of the Services Agreement or any other agreement between You and BNY Mellon.
Each party represents and warrants to the other party that these Terms and Conditions and the indemnity contained herein have been duly authorized and accepted, that such party has full authority to enter into these Terms and Conditions and that these Terms and Conditions constitute a binding obligation enforceable in accordance with its terms.
SCHEDULE A to APPENDIX I
Affiliates of Client
ProShare Capital Management LLC