20191224Notice of Affilitate Transaction.pdf

\PactrrEoRp 'iECSIVEO R. JeffRicha s
I .; ilF Il 2 L Pl1 12: 5 5 t1ce President and cenerul counsel' 1407 W. North Temple. Suite 320
, - . - !.:. .l ii) Salt Lake City, UT 84116
",l i, ; ;l I SS loM0 t -2204734 olfice
j eff i c h ar dd@ncifr c o rp. co m
December 24, 2019
Diane Hanian
Commission Secretary
Idaho Public Utilities Commission
I I 331 W Chinden Blvd
Building 8 Suite 201A
Boise, ldaho 83714
Re: Case No. PAC-E-05-8 - PacifiCorp Notice of Affiliate Transaction
Dear Ms. Hanian:
This letter will serve as notice pursuant to Commitment I l7(2), incorporated in the Idaho Public
Utilities Commission Order No. 29973 issued February 13, 2006, as supplemented by Order No.
29998 March 14, 2006, in the above-referenced proceeding, approving the acquisition of
PacifiCorp by MidAmerican Energy Holdings Company (now "Berkshire Hathaway Energy
Company" or "BHE '), of an affiliate interest transaction with The Bank of New York Mellon Trust
Company, N.A. C'BNY Mellon"). PacifiCorp intends to enter into up to seven (7) new Trust
Agreements and/or Custodian Agreements with BNY Mellon as trustee.l In so doing, PacifiCorp
will be replacing its current trustee with BNY Mellon, but not amending any retirement or benefit
plans, or any other underlying commercial arrangements. BNY Mellon will provide the standard
services that any bank trustee would serve for funds held in company pension funds and other
similar trust arrangements. This decision was made after a Berkshire Hathaway Energy Company-
wide Request for Proposal ("RFP") process which yielded excellent fee savings for all platforms,
including PacifiCorp. Attachment I to this notice includes copies of the Agreements between
PacifiCorp and BNY Mellon. Attachment 2 includes a chart that shows the current fees paid by
PacifiCorp for trustee services, compared to the BNY Mellon proposal. The selection of BNY
Mellon was not influenced by Berkshire Hathaway's ownership interest.
PacifiCorp is a wholly-owned, indirect subsidiary of Berkshire Hathaway Energy Company
("BHE'). BHE is a subsidiary of Berkshire Hathaway [nc. ("Berkshire Hathaway"). Warren E.
Buffet (an individual who may be deemed to control Berkshire Hathaway), Berkshire Hathaway,
various subsidiaries of Berkshire Hathaway and various employee benefit plans of Berkshire
I The proposed new agreements are: ( I) PacifiCorp Master Retirement Trust Agreement (including any successor
master trust agreements); (2) PacifiCor! (Union) Welfare Benefits Trust Agreement; (3) PacifiCorp (Non-Union)
Welfare Benefits Trust Agreementi (4) PacifiCorp Executive Trust and Trust-owned Life lnsurance Policies
(DCP/SERP) Rabbi Trust Agreements (which may be used for the PacifiCorp LTIP trust or custody agreement); (5)
Bridger Reclamation Trust Agreement; and (6) Trojan Nuclear Decommissioning Trust Agreement.
Diane Hanian
Notice of Affiliate Transaction
December 24, 2019
Hathaway subsidiaries together held an interest in excess of five percent in BNY Mellon.
Therefore, Berkshire Hathaway's ownership interest in BNY Mellon may create an affiliated
interest in some PacifiCorp jurisdictions.
BHE worked closely with AON, specifically the AON Custodian & Trustee Search Team, on the
RFP and in selecting a new pension trustee that could provide savings over current trustee fee costs
across the platforms. The team focused on the trustee and custodian capabilities, including u'hether
they have the institutional knowledge, manpower, and IT infrastructure to service complex BHE
plans effectively. After careful review, based on a ten-point scoring system, the team agreed that
BNY Mellon would be the best go-forward fit for the needs of the BHE plans when taking all
factors into consideration. Accordingly, the transaction to which BNY Mellon will be a party (i.e.
trustee under new trust agreements) is consistent with the public interest
Please do not hesitate to contact me if you have any questions.
Best Regards,
R. Jeff
Vice President and General Counsel
PacifiCorp
Enclosures
WASHING'I'ON AFFILIAI-ED INTERES'I }-ILING
ATTACHMENT A
BNY MELLON AND CUSTOMER CONFIDENTIAL
BNY MELLON
DEFINED BENEFIT PLAN
TRUST AGREEMENT
By and Between
THE BANK OF NEW YORK MELLON
And
PACIFICORP
For the
PACIFICORP MASTER RETIREMENT TRUST
BNY MELLON AND CUSTOMER CONFIOENTIAL
TABLE OF CONTENTS
1.DEFINITIONS 1
2
3. AUTHORIZED PERSONS AND INSTRUCTIONS; ELECTRONIC ACCESS....3.1. Authorized Persons.........3.2. lnstructions
BNY tvlellon Actions Without lnstructions....
Funds Transfers
Electronic Access................,.......
6
6
6
7II
4
5. CORPORATEACTIONS
SUBCUSTODIANS, DEPOSITORIES AND AGENTS4.1. Use of Subcustodians and Depositories..........4.2. Liability for Subcustodians.......,...4.3. Liability for Depositories
3.3.
3.4.
3.5.
5.1.
5.2.
5.3.
8.1.
8.2.
8.3.
8.4.
..9
10
10
10
10
10
10
12
12
12
tt
12
II
9I
9
I
4.4. Use of Agents....
Notification.........
Exercise of Rights
Partial Redemptions, Payments, Etc....
6.SETTLEMENT6.1. Settlementlnstructions6.2. Settlement Funds............6.3. Settlement Practices .......
7
8. CREDITS AND ADVANCES
Contractual Settlement and
Advances...........
Repayment........
Securing Repayment..........
lncome.
I
10. DISCLOSURES
10.1. Required Disc|osure..................
10.2. ForeignExchangeTransactions
10.3. lnvestment of Cash ...................
15
15
IJ
16
1
11.REGULATORY MATTERS
11.1. USAPATRIOTAct.
11.2. Sanctions................
11.3. Express Authorization for ERISA Purposes
12. COMPENSATION
13.
12.1. Fees and Expenses...........
12.2. OlhetCompensation
REPRESENTATIONS, WARRANTIES AND COVENANTS....
14.
16
.....16
.....16
.....17
17
17
17
18
1813.1.BNY lvlellon
13.2. Customer ..,,18
15. CONFIDENTIALITY 20
15.1. Confidentiality Obligations..
15.2. Exceptions..........................
16.TERM AND TERMINATION
16.1. Tem 21
21
Removal or Resignation
Effect of Removal or Resignation...
Plan Termination
Assets Not Transferred
Survival..............
17.1. Line ltem and Non-Fund Assets
....20
....21
16.2.
16.3.
16.4.
16.5.
{ 6.6.
...21
...21
...21
...22
17.2.
17.3.
17.4.
17.5.
17.6.
17.7.
17.8.
17.9.
17.'lO.
17 .11.
17.12.
17.13.
17.14.
17.15.
..22
..23
..23)2
..23
..24
..24
..24
..24
..25
..25
..25
..25
..25
AssignmenUU.S. Special Resolution Regime
Exclusive Benefit......,..............
Amendment.......
Governing Law/Forum........
Sovereign 1mmunity............
Notices ..............
Entire Agreement .........................
Necessary Parties ............,,.
No Third Party Benefi ciaries..........................
Counterparts/Facsimile ................
lnterpretation
No Waiver..........
Headings
Severability........
'lliliillfliY_
..::::..:::...::
2
DEFINED BENEFIT SCHEOULE ,|
1
1
1
1
1. Plan Termination .....
2. 401(h) Account
EXHIBIT A
EXHIBIT B
3
BNY MELLON AND CUSTOMER CONFIDENTIAL
DEFINED BENEFIT PLAN
TRUST AGREEMENT
This Agreement is made and entered into as of the latest date set forth on the signature
page hereto (the "Effective Date") by and between THE BANK OF NEW YORK MELLON, a
bank organized under the laws of the state of New York ("BNY Mellon"), and PACIFICORP, an
Oregon corporation ("Gustomer"). BNY Mellon and Customer are collectively referred to as the
"Parties" and individually as a "Party".
RECITALS
WHEREAS, Customer and its subsidiaries or affiliates have adopted an employee benefit
plan intended to meet the requirements of Seclion 401(a) of the Code for the beneflt of the
employees therein described (the "Plan");
WHEREAS, Customer has established or desires to continue a trust constituting a part of
the Plan, pursuant to which assets will be held to provide for the funding of and payment of
benefits under the Plan;
WHEREAS, Customer and State Street Bank and Trust Company previously entered into
a Restated Trust Agreement effective November 1, 2014 (the "Prior Agreement"); and
WHEREAS, Customer wishes to have BNY Mellon act as the trustee of such trust, and
BNY Mellon is willing to provide such services on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and intending to be legally bound, the Prior Agreement is hereby amended and restated
as follows.
1.DEFINITIONS
"Act" has the meaning set forth in Section 10.1(a),
"Affiliate" means, with respect to any entity, any other entity that directly or indirectly
controls, is controlled by or under common control with such entity.
"Agreement" means, collectively, this Defined Benefit Plan Trust Agreement, the Defined
Benefit Schedule and any Exhibits hereto and any other documents incorporated herein
by reference.
"Assets" means any assets acceptable to BNY Mellon, excluding any direct interest in
real property, leaseholds or mineral interests, which Customer may transfer to BNY
Mellon's care, to be held in trust in accordance with this Agreement, except to the extent
otheruise provided in the Defined Benefit Schedule.
"Authorized Person" has the meaning set forth in Section 3.1.
Whenever used in this Agreement, the following words have the meanings set forth below:
BNY MELLON AND CUSTOMER CONFIDENTIAL
"BNY Mellon" has the meaning set forth in the introductory paragraph.
"Cash" means the money and currency of any jurisdiction which BNY Mellon accepts for
deposit in the Fund.
"Code" means the lnternal Revenue Code of 1986, as amended.
"Confidential lnformation" means, with respect to a Party, the terms of this Agreement
and all non-public business and financial information of such Party (including, with respect
to Customer, information regarding the Fund and including, with respect to BNY Mellon,
information regarding its practices and procedures related to the services provided
hereunder) disclosed to the other Party in connection with this Agreement.
"Custome/' has the meaning set forth in the introductory paragraph. ln addition,
references to "Customer" include reference to the Named Fiduciary if and to the extent
such Named Fiduciary is responsible for the applicable function under the Plan or ERISA.
"Data Tgrms Websitg" means h!0://w\\t*, bn,/mellon.cont/ptoducfs/assetservicinq/vendoraqreement ,).1f
or any successor website the address of which is provided by BNY Mellon to Customer.
"Depository" means the Depository Trust Company, Euroclear, Clearstream Banking
S.A., the Canadian Deposatory System, CLS Bank and any other securities depository,
book-entry system or clearing agency authorized to act as a system for the central
handling of securities pursuant to the laws of the applicable jurisdiction, and any
successors to, and/or nominees of, any of the foregoing.
"Effective Date" has the meaning set forth in the introductory paragraph.
"Electronic Access Services" means such services made available by BNY Mellon or a
BNY Mellon Affiliate to Customer to electronically access information relating to the Fund
and/or transmit I nstructions.
"ERISA" means the Employee Retirement lncome Security Acl of 1974, as amended
"Fund" means the account or accounts established pursuant to this Agreement to hold the
Assets of the Plan.
"lnstructions" means, with respect to this Agreement, instructions issued to BNY Mellon
by way of (a) one of the following methods (each as and to the extent specified by BNY
Mellon as available for use in connection with the services hereunder): (i) the Electronic
Access Services; (ii) third-party electronic communication services containing, where
applicable, appropriate authorization codes, passwords or authentication keys, or
otherwise appearing on their face lo have been transmitted by an Authorized Person or
(iii) third-party institutional trade matching utilities used lo effect transactions in
accordance with such utility's customary procedures or (b) such other method as may be
agreed upon by the Parties and that appear on their face to have been transmitted by an
Authorized Person.
"lnvestment Manager" means an investment manager within the meaning of Section
3(38) of ERISA with respect to the Fund that has been appointed pursuant to Section
2.2(d).
2
BNY MELLON AND CUSTO[/IER CONFIDENTIAL
"Market Data" means pricing, valuations or other commercially sourced data applicable
to any Security. Market Data also includes security identifiers, bond ratings and
classification data.
"Market Data Providers" means vendors and analytics providers and any other Person
providing l\ilarket Data to BNY Mellon.
"Named Fiduciary" means individually and collectively, as applicable, any entity,
committee or Person identified herein as Named Fiduciary or otherwise having the
authority to control and manage the operation and administration of the Plan or the power
to manage and control the assets of the Plan. The Named Fiduciary with authority to
appoint a trustee is Customer. The Named Fiduciary that is the administrator of the Plan
is Customer,
"Non-Fund Assets" has the meaning set forth ln Section 17.1 (b)
"Oral lnstructions" means, with respect to this Agreement, spoken instructions issued to
BNY Mellon and reasonably believed by BNY lvlellon to be from an Authorized Person.
"Party" or "Parties" has the meaning set forth in the introductory paragraph.
"Person" or "Persons" means any entity or individual
"Sanctions" means all economic sanctions laws, rules, regulations, executive orders and
requirements administered by any governmental authority of the United States (including
the United States Office of Foreign Assets Control) or any other applicable domestic or
foreign authority with jurisdiction over Customer.
"Securities" means all (a) debt and equity securities and (b) instruments representing
rights or interests therein, including rights to receive, subscribe to or purchase the
foregoing; in each case as may be agreed upon from time to time by BNY Mellon and
Customer and which are from time to time delivered to or received by BNY Mellon and/or
any Subcustodian for deposit in the Fund.
"Standard of Care" has the meaning set forth in Section 14.1.
"Tax Obligations" means taxes, withholding, certification and reporting requirements,
claims for exemptions or refund, interest, penalties, additions to tax and other related
expenses.
"Third Party Data" has the meaning set forth in Section 9.3(a)
"Trust" means the trust created by this Agreement, known as the PacifiCorp Master
Retirement Trust.
3
"Plan" has the meaning set forth in the Recitals.
"Subcustodian" means a bank or other financial institution (other than a Depository) that
is selected and used by BNY Mellon or a BNY Mellon Affiliate in connection with the
settlement of transactions and/or custody of Assets hereunder, and any successors to,
and/or nominees of, any of the foregoing.
BNY MELLON AND CIJSTOMER CONFIOENTIAL
2 APPOINTMENT OF TRUSTEE; THE FUND
Appointment of Trustee
(a) The Trust is intended to comply with ERISA and to be tax-exempt under Section
501(a) of the Code. Customer represents that the Plan is qualified under Section
401(a) of the Code and will immediately notify BNY Mellon if the Plan ceases to be
so qualified.
(b) Customer hereby appoints BNY Mellon as trustee for the Assets and BNY lvlellon
hereby.accepts such appointment. The Parties acknowledge and agree that BNY
Mellon's duties pursuant to such appointment will be limited solely to those duties
expressly undertaken pursuant to this Agreement,
(c) Nohvithstanding the foregoing, BNY Mellon has no obligation:
(i) With respect to any Assets until they are actually received and accepted by
BNY Mellon in the Fund;
(ii) To inquire into, make recommendations, supervise or determine the
suitability of any transactions affecting the Fund; or
(iii) To determine the adequacy of title to, or the validity or genuineness of, any
Assets received by it or delivered by it pursuant to this Agreement.
(d) Cash held hereunder may be subject to additional deposit terms and conditions
issued by BNY Mellon or the applicable Subcustodian from time to time, including
rates of interest and deposit account access.
(e) lf Customer engages in securities lending activities, such activities will be subject
to certain additional and/or modified terms to be set forth in a separate written
agreement between Customer and BNY Mellon or a BNY Mellon Affiliate.
Contributions; lnvestment of the Fund
(a) BNY Mellon will accept contributions that are paid to it by Customer (as well as
rollover contributions and direct transfers from other qualified retirement plans) in
accordance with this Agreement. Such contributions will be in Cash or in such
other form as may be acceptable to BNY Mellon. BNY Mellon will have no duty to
determine or collect contributions under the Plan. Customer represents that a
Named Fiduciary (and not BNY Mellon) has the sole duty and responsibility for the
determination of the accuracy or sufficiency of the contributions to be made under
the Plan, the timely transmittal of the same to BNY Mellon and compliance with
any statute, regulation or rule applicable to contributions.
(b) BNY Mellon will return contributions made pursuant to subsection (a) above, if the
following conditions are satisfi ed:
(i) (A) Contributions made prior to the receipt of an initial determination letter
are conditional upon a favorable determination as to the qualified status of
the Plan under Section 401(a) of the Code, so if the Plan receives an
2.1.
2.2.
4
BNY MELLON ANO CUSTOMER CONFIOENTIAL
adverse determination with respect to its initial qualification, any such
contribution may be returned to Customer within one year after such
determination, provided the application for determination is made by the
time prescribed by law; (B) contributions made by Customer based upon
mistake of fact may be returned to Customer within one year of such
contribution; (C) all contributions to the Plan are conditioned upon their
deductibility under the Code, so if a deduction for all or a portion of a
contribution is disallowed, such contribution may be returned to Customer
within one year of the disallowance of such deduction and (D) subject to
Section 16.4, after all liabilities under the Plan have been satisfied, the
remaining assets of the Trust may be distributed to Customer if such
distribution is provided for in the Plan and does not contravene any
provision of applicable law.
(ii)ln the case of the return of a contribution due to mistake of fact or the
disallowance of a deduction, the amount which may be returned is the
excess of the amount contributed over the amount that would have been
contributed had there not been a mistake or disallowance. Earnings
attributable to excess contrabutions may not be returned but losses
attributable thereto must reduce the amount to be so returned. Any return
of contribution or distribution of assets made by BNY Mellon will be made
only upon lnstructions of Customer, which has exclusive responsibility for
determrning whether the conditions of such return or distribution have been
satisfied and for the amount to be returned or distributed.
(c)BNY Mellon may commingle the Fund with funds of other trusts of similar nature
created by Customer for the exclusive benerit of its employees. Where
commingling is effected with other trusts maintained by Customer, the combined
trust, to the extent that assets are attributable to contributions made under this
Agreement, will be the Fund referred to herein. BNY Mellon will maintain such
records as are necessary in order to maintain a separation of the Fund from the
funds of the other trusts maintained by Customer.
(d)Customer has the authority and responsibility to manage the assets of the Fund.
ln carrying out this responsibility, Customer may appoint (and remove) one or more
lnvestment Managers, which may include BNY Mellon or a BNY Mellon Affiliate, if
and to the extent set forth in a separate agreement executed by BNY Mellon or
such Affiliate. BNY Mellon will not be responsible under this Agreement, directly
or indirectly, for the investment or reinvestment of the assets of the Fund. lf
Customer appoints an lnvestment Manager, BNY Mellon will place in a separate
subaccount those assets over which the lnvestment Manager has discretion and
control.
2.3. Procedures for Segregation of Assets
Customer may, if it so determines, at any time designate any group or groups of the eligible
employees or other beneficiaries covered by the Plan as a separate class and may direct
BNY Mellon to segregate in a separate fund, to be held for the benefit of such class, the
part of the Fund allocable to such class as determined by Customer, or some lesser
amount than such allocable part if Customer will determine that other equitable provision
is made for the difference. Customer will cause BNY Mellon to effect such segregation by
5
BNY Il4ELLON AND CUSTOMER CONFIDENTIAL
providing lnstructions to BNY Mellon of Customer's determination, together with evidence
of appropriate action by the governing body directing such segregation. BNY lvlellon may
rely conclusively and without investigation upon any such notification of the determination
and evidence of appropriate action by the governing body and will segregate such assets
as Customer may direct. BNY Mellon's valuation of such assets for that purpose will be
conclusive. BNY Mellon will hold all of the assets so segregated under this provision,
together with such payments as wrll thereafter be made to the Fund on behalf of such
class, and the income therefrom, as a subpart ofthe Fund and subject to the terms of this
Agreement, or will dispose of the same as directed by Customer. ln the event that the
Fund or any subpart thereof created by this Agreement is terminated as to such class,
Customer will direct the disposition of the assets held by BNY Mellon for such class
through transfer to a successor trustee, the purchase of annuities, or other means, as
Customer determines, and thereafter such employees and other beneficiaries will not have
any rights in the Fund, or against BNY Mellon.
3. AUTHORIZED PERSONS AND INSTRUCTIONS; ELECTRONIC ACCESS
3.'l . Authorized Persons
Promptly following the Effective Date, Customer andior its designee (including any of
Customer's lnvestment Managers) will furnish BNY lvlellon with one or more written lists
or other documentation acceptable to BNY Mellon specifying the names and titles of, or
otherwise identifying, all Persons authorized to act on behalf of Customer with respect to
this Agreement (each, an "Authorized Person"). Customer will be responsible for
keeping such lists and/or other documentation current, and will update such lists and/or
other documentation, as necessary from time to time, pursuant to lnstructions.
3.2, lnstructions
(a) Except as otherwise expressly provided in this Agreement, BNY Mellon will have
no obligation to take any action hereunder unless and until it receives lnstructions
issued in accordance with this Agreement.
(b)Cuslomer will be responsible for ensuring that (i) only Authorized Persons issue
lnstructions to BNY Mellon and (ii) all Authorized Persons safeguard and treat with
extreme care any user and authorization codes, passwords and authentication
keys used in connection with the issuance of lnstructions.
(c)Where Customer may or is required to issue Instructions, such lnstructions will be
issued by an Authorized Person. The Authorized Person (and not BNY Mellon)
will be responsible for determining that lnstructions are in accordance with the
terms of the Plan and applicable law.
(d)BNY Mellon will be entitled to deal with any Authorized Person until notified
otherwise pursuant lo lnstructions, and will be entitled to act and rely upon any
lnstruction received by BNY l/ellon.
(e)All lnstructions must include all information necessary, and must be delivered
using such methods and in such format as BNY Mellon may require and be
received within BNY Mellon's established cut-off times and otherwise in sufficient
time, to enable BNY Mellon to act upon such lnstructions.
6
BNY MELLON AND CUSTOMER CONFIOENTIAL
(f)BNY Mellon may in its sole discretion decline to act upon any lnstructions that do
not comply with requirements set forth in Section 3.2(e) or that conflict with
applicable law or regulations or BNY Mellon's operating policies and practices, in
which event BNY Mellon will promptly notify Customer.
(s)Customer acknowledges that while it is not part of BNY Mellon's normal practices
and procedures to accept Oral lnstructions, BNY Mellon may in certain limited
circumstances accept Oral lnstructions. ln such event, such Oral Instructions will
be deemed to be lnstructions for purposes of this Agreement. An Authorized
Person issuing such an Oral lnstruction will promptly confirm such Oral lnstruction
to BNY Mellon in writing. Notwithstanding the foregoing, Customer agrees that the
fact that such written confirmation is not received by BNY Mellon, or that such
written conlirmation contradicts the Oral lnstruction, will in no way affect (i) BNY
l\4ellon's reliance on such Oral lnstruction or (ii) the validity or enforceability of
transactions authorized by such Oral Instruction and effected by BNY Mellon.
(h)Customer acknowledges and agrees that it is fully informed of the protections and
risks associated with the various methods of transmitting lnstructions to BNY
Mellon and that there may be more secure methods of transmitting lnstructions
than the method selected by the sender. Customer agrees that the security
procedures, if any, to be followed by Customer and BNY Nilellon with respect to the
transmission and authentication of lnstructions provide to Customer a
commercially reasonable degree of protection in light of the Fund's particular
needs and circumstances.
3.3. BNY Mellon Actions Without lnstructions
Notwithstanding anything to the contrary set forth in this Agreement, Customer hereby
authorazes BNY Mellon, without lnstructions, to take any administrative or ministerial
actions wilh respect to the Fund that it deems reasonably necessary or appropriate to
perform its obligations under this Agreement, including the following:
(a) Receive income and other payments due to the Fund; provided, however, that BNY
Mellon will have no duty to pursue collection of any amount due to the Fund,
including for Securities in default, if such amount is not paid when due;
(b) Carry out any exchanges of Securities or other corporate actions not requiring
discretionary decisions;
(c)Facilitate access by Customer or its designee to ballots or online systems to assist
it in the voting of proxies received by BNY Mellon (in its capacity as custodian) for
eligible positions of Securities held in the Fund (excluding bankruptcy matters), all
of which will be exercised by Customer or its designee and not by BNY Mellon;
(d)Forward to Customer or its designee information (or summaries of information) that
BNY Mellon receives (in its capacity as custodian) from Depositories or
Subcustodians concerning Securities in the Fund (excluding bankruptcy matters);
Forward to Customer or its designee an initial notice of bankruptcy cases relating
to Securities held in the Fund and a notice of any required action related to such
bankruptcy cases as may be received by BNY Mellon (in its capacity as custodian).
7
(e)
BNY IVIELLON ANO CUSTOIVIER CONFIDENTIAL
BNY Mellon will take no further action nor provide further notification related to the
bankruptcy case;
(f)Unless otherwise elected by Cuslomer, and in accordance with BNY Mellon's
standard terms and conditions, provide class action filing services for settled
claims related to Securities with industry recognized identifiers;
Endorse for collection checks, drafts or other negotiable instruments received on
behalf of the Fund;
(s)
(h)Deposit Cash in accounts bearing interest at a reasonable rate in the banking
department of BNY Mellon or an affiliated banking organization; and
(i)Execute and deliver, solely in its capacity as custodian, certificates, documents or
instruments incidental to BNY Mellon's performance under this Agreement.
3.4. Funds Transfers
3.5. Electronic Access
lf Customer elects to use the Electronic Access Services in connection with this
Agreement, the use thereof will be subJect to any terms and conditions contained in a
separate written agreement between the Parties or their Affiliates, lf an Authorized Person
elects, with BNY Mellon's prior consent, to transmit lnstructions through a third-party
electronic communications service, BNY lvlellon will not be responsible or liable for the
reliability or availability of any such service.
4. SUBCUSTODIANS,DEPOSITORIESANDAGENTS
4.1. Use of Subcustodians and Depositories
(a) BNY Mellon will be entitled to utilize Subcustodians and Depositories in connection
with its performance hereunder.
(b)BNY Mellon will only utilize Subcustodians that have entered into an agreement
with BNY Mellon or a BNY Mellon Affiliate, and Assets held through a
Subcustodian will be held subject to the terms and conditions of such
Subcustodian's respective agreemenl.
With respect to each lnstruction for a Cash transfer, when the lnstruction is to credit or
pay a party by both a name and a unique numeric or alpha-numeric identifier (e.9., IBAN
or ABA or account number), BNY lvlellon and any other bank participating in the Cash
transfer will be entitled to rely solely on such numeric or alpha-numeric identifier, even if it
identifles a party different from the party named. Such reliance on an identifier will apply
to beneficiaries named in the lnstruction, as well as any financial institution that is
designated in the lnstruction to act as an intermediary in such Cash transfer. To the extent
permitted by applicable law, the parties will be bound by the rules of any transfer system
used to effect a Cash transfer under this Agreement.
BNY MELLON AND CUSTOMER CONFIOENTIAL
4.2.
(c) Assets deposited in a Depository will be held subject to the rules, procedures,
terms and conditions of such Depository. Subcustodians may hold Assets in
Depositories in which such Subcustodians participate.
(d) Unless otherwise required by local law or practice or a particular Subcustodian
agreement, Assets deposited with Subcustodians or Depositories may be held in
a commingled account in the name of, as applicable, BNY Mellon, a BNY Mellon
Affiliate or the applicable Subcustodian, for its clients.
Liability for Subcustodians
(a) BNY Mellon will exercise the Standard of Care described in clause (a) of the first
sentence of Section 14.1 in selecting, retaining and monitoring Subcustodians.
(b) With respect to Assets held by a Subcustodian, BNY Mellon will be liable to
Customer for the activities of such Subcustodian under this Agreement to the
extent that BNY [/lellon would have been liable to Customer under this Agreement
if BNY Mellon had performed such activities itself in the relevant market in which
such Subcustodian is located; provided, however, that with respect to Securities
held by a Subcustodian that is not a BNY Mellon Affiliate:
(i) BNY Mellon's liability will be limited solely to the extent resulting directly
from BNY [/ellon's failure to exercise the Standard of Care described in
clause (a) of the first sentence in Section 14.1 in selecting, retaining and
monitoring such Subcustodian; and
(ii) To the extent that BNY Mellon is not liable pursuant to Seclion 4.2(b)(i),
BNY Mellon's sole responsibility to Customer will be to: (A) take reasonable
and appropriate action to recover from such Subcustodian, and (B) forward
to the Trust any amounts so recovered (exclusive of costs and expenses
incurred by BNY Mellon in connection therewith).
Liability for Depositories
BNY tvlellon will have no responsibility or liability for the activities of any Depository arising
out of or relating to this Agreement or any cost or burden imposed on the transfer or
holding of Assets held with such Depository.
Use of Agents
BNY Mellon may appoint agents, including BNY [,4ellon Affiliates, on such terms and
conditions as it deems appropriate to perform its obligations hereunder. Except as
otherwise specifically provided herein, no such appointment will discharge BNY Mellon
from its obligations hereunder.
CORPORATE ACTIONS
Notification
BNY Mellon will notify Customer or its designee of rights or discretionary corporate actions
as promptly as practicable under the circumstances, provided that BNY Mellon has
4.3.
4.4.
5
9
5.1.
BNY MELLON AND CUSTOMER CONFIDENTIAL
actually received, in its capacity as custodian, notice of such right or discretionary
corporate action from the relevant issuer, or from a Subcustodian, Depository or third party
vendor. Without actual receipt of such notice by BNY Mellon, BNY Mellon will have no
responsibility or liability for failing to so notify Customer.
Whenever there are voluntary rights that may be exercised or alternate courses of action
that may be taken with respect to Securities in the Fund, Customer or its designee will be
responsible for making any decisions relating thereto and for instructing BNY Mellon to
act. ln order for BNY Mellon to act, Customer must issue lnstructions either: (a) using the
BNY Mellon-generated form provided along with BNY Mellon's notice under Section 5.1
or (b) if Customer is not using such BNY Mellon-generated form, clearly indicating, by
reference to the options provided on such BNY Mellon-generated form, which action
Customer is electing. Each such lnstruction will be addressed as BNY Mellon may from
time to time request and issued by such time as BNY Mellon will advise Customer or its
designee.
5.3. Partial Redemptions, Payments, Etc.
BNY Mellon will advise Customer or its designee upon its notification, in its capacity as
custodian, of a partial redemption, partial payment or other action with respect to a
Security affecting fewer than all such Securities held wilhin the Fund. lf BNY Mellon or
any Subcustodian or Depository holds any Securities affected by one of the events
described, BNY Mellon or such Subcustodian or 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.
6. SETTLEMENT
6.1. Settlementlnstructions
Promptly after the execution of each Securities transaction, Customer will issue to BNY
Mellon lnstructions to settle such transaction. Unless otherwise agreed by BNY Mellon
and subject to Section 8.1 , Assets will be credited to the Fund only when actually received
by BNY Mellon.
6.2. Settlement Funds
For the purpose of settling a Securities transaction, Customer will provide BNY Mellon
with sufficient immediately available funds or Securities, as applicable, by such time and
date as is required to enable BNY Mellon to settle such transaction in the country of
settlement and in the currency to be used to settle such transaction.
6.3. SettlementPractices
5.2. Exercise of Rights
Securities transactions will be settled using practices customary in the jurisdiction or
market where the transaction occurs, which may include the delivery of Securities or
Cash to a counterparty or its agents against, as applicable, the receipt of Securities or
Cash in the future. Customer assumes, on behalf of the Trust, full responsibility for all
10
BNY MELLON AND CUSTOMER CONFIOENTIAL
risks involved in connection with BNY Mellon's delivery of Securities or Cash in
accordance with such practices.
7.TAX MATTERS
7 .1. Tax Obligations
To the extent that BNY Mellon has received relevant and necessary information with
respect to the Fund, BNY Mellon will perform the following services with respect to Tax
Obligations:
(a) BNY Mellon (or the applicable Subcustodian) will apply, withhold and report
appropriate amounts as BNY Mellon (in its capacity as custodian) or the applicable
Subcustodian (in its capacity as Subcustodian) is required to do under the relevant
source country tax laws, and is authorized to debit the Fund in the amount of a Tax
Obligation withheld and to pay such amount to the appropriate taxing authority.
(b)BNY Mellon will, where appropriate and upon receipt of sufficient information,
pursue claims for tax relief where (i) either a tax treaty or a source country's
domestic tax laws provide for favorable tax treatment with respect to an Asset as
a result of the Trust's status as a specific type of investor and/or residency status
and (ii) the source country's tax authoritles have outlined the requirements and
qualification criteria requued to obtain such relief.
(c)BNY Mellon will forward to Customer or its designee information regarding Tax
Obligations applicable to Customer that BNY Mellon receives in its capacity as
custodian from third parties and that BNY Mellon reasonably believes would be
useful to Customer or its designee in the submission of any reports or returns with
respect to Tax Obligations.
(d)BNY Mellon offers certain tax services pursuant to a separate tax service and fee
agreement. Except to the extent Customer enters into a separate tax service and
fee agreement with BNY Mellon specifying tax services related to the following
matters to be performed by BNY ftilellon, Customer assumes all responsibility for,
and will perform all matters related to (i) the completion and filing of all required
U.S. Federal income tax returns for the Trust and/or the required U.S. Federal
informational returns for tax exempt trusts and (ii) all state tax compliance
obligations with respect to the Trust, in each case including those Tax Obligations
that may be imposed on BNY l/ellon under any law.
(e)BNY Mellon will only be responsible for performing, and will only perform, the
obligations of BNY Mellon that are expressly set forth in this Section 7.'1 and such
other tax services (which may include non-income tax related services) that are
expressly agreed upon by BNY Mellon and Customer pursuant to a separate tax
service and fee agreement, if any.
BNY Mellon may consult with and rely upon Customer in matters pertaining to Tax
Obligations. Customer will provide and/or will cause its Authorized Persons to
provide information necessary for BNY Mellon to fulfill any obligations it may have
hereunder or under any separate tax services agreement with respect to Tax
Obligations in a timely manner.
(0
11
BNY i,IELLON AND CUSTOMER CONFIDENTIAL
7.2. Responsibility for Taxes
Customer will be responsible and liable for all Tax Obligations with respect to any Assets
held on behalf of Customer and any transaction related thereto. Customer acknowledges
and agrees that BNY Mellon and its Affiliates are not tax advisers and will not under any
circumstances provide tax advice to Customer. Customer will obtain its own independent
tax advice for any tax-related matters.
7.3. Payments
Where BNY Mellon receives lnstructions to make distributions or transfers out of the Fund
in order to pay Customer's third party service providers, Customer acknowledges that in
making such payments BNY Mellon is acting in an administrative or ministerial capacity,
and not as the payor, for tax information reporting and withholding purposes.
8. CREDITS AND ADVANCES
8.1. Contractual Settlement and lncome
BNY [,4ellon may, in its sole discretion, as a matter of bookkeeping convenience, credit
the Fund with the proceeds resulting from the purchase, sale, redemption or other delivery
or receipt of Securities, or interest, dividends or other distributions payable on Securities,
or any foreign exchange transaction etfected in connection with this Agreement, prior to
its actual receipt thereof. All such credits will be conditional until BNY Mellon's actual
receipt of such proceeds and may be reversed by BNY lvlellon to the extent that such
proceeds are not received. Actual receipt of proceeds with respect to a transaction will
not be deemed to have occurred, and the transaction will not be considered final, until
BNY Mellon has received sufficient immediately available funds or Securities specifically
applicable to such transaction that, under applicable local law, rule or practice, are
irreversible and not subject to any security interest, levy or other encumbrance.
8.2. Advances
lf BNY Mellon receives an lnstruction that, if processed, would result in an overdraft in the
Fund, BNY Mellon may, in its sole discretion, advance funds in any currency hereunder.
8.3. Repayment
lf: (a) BNY Mellon has advanced funds to the Fund; (b) an overdraft has occurred in the
Fund (including overdrafts incurred in connection with the settlement of securities
transactions, funds transfers or foreign exchange transactions) or (c) the Trust is for any
other reason indebted to BNY tt/ellon, Customer on behalf of the Trust agrees to repay
BNY Mellon (on demand or upon becoming aware thereof) the amount of such advance,
overdraft or indebtedness, plus accrued interest at a rate then charged by BNY Mellon to
its institutional custody clients in the relevant currency.
8.4. SecuringRepayment
ln order to secure repayment of the Trust's obligations and liabilities (whether or not
matured) to BNY Mellon or any BNY Mellon Affiliate, arising under or related to this
Agreement, and without limiting BNY Mellon's or such BNY Mellon Affiliate's rights under
12
BNY MELLON AND CUSTOMER CONFIDENTIAL
applicable law or any other agreement, Customer on behalf of the Trust hereby pledges
and grants to BNY Mellon and such BNY Mellon Affiliate, and agrees BNY Mellon and
such BNY Mellon Affiliate will have to the maximum extent permitted by law, a continuing
first lien and security interest in all of the Plan's and the Trust's right, title and interest in
and to the Fund and the Assets now or hereafter held in the Fund (including proceeds
thereof); provided that Customer does not hereby grant a security interest in any Securities
issued by an affiliate (as defined in Section 23A of the U.S. Federal Reserve Act) of BNY
Mellon. Customer represents, warrants and covenants that the Trust owns the Assets in
the Fund free and clear of all liens, claims and security interests (except as otherwise
acknowledged in writing by BNY Mellon), and that the first lien and security interest
granted herein will be subject to no setoffs, counterclaims or other ens prior to or on a
parity with it in favor of any third party (other than specific liens granted preferred status
by statute). Customer will take any additional steps required to assure BNY Mellon of
such priority security interest, including notitying third parties or obtaining their consent.
BNY Mellon will be entitled to collect from the Fund sufficient Cash for reimbursement,
and if such Cash is insufficient, to sell Securities to the extent necessary to obtain
reimbursement. ln lhis regard, BNY Mellon will be entitled to all the rights and remedies
of a pledgee, secured creditor and/or securities intermediary under applicable laws, rules
and regulations as then in effect as if the Trust is in default.
9. STATEMENTS; BOOKS AND RECORDS; THIRD PARTY DATA
9.1 . Statements
BNY Mellon will make available to Customer, through the Electronic Access Services or
such other method as may be agreed upon by the Parties, a monthly statement reflecting
all transfers lo or from the Fund during such month and all holdings in the Fund as of the
last business day of such month. Customer will promptly review each such statement
and, within ninety (90) days of when such statement is made available by BNY Mellon,
notify BNY Mellon of any exception or objection thereto. Notwithstanding the foregoing,
Customer may notify BNY Mellon of any such exceptions or objections at any time;
provided, however, that BNY Mellon will not be responsible or liable for any losses
reasonably evident from review of such statement that could have been mitigated had
such notice been provided during such ninety (90) day period.
9.2. Books and Records
BNY Mellon will identify on its books and records the Assets belonging to the Fund,
whether held directly or indirectly through Subcustodians or Depositories. Securities held
in the Fund will be held in registered form in the name of BNY Mellon or one of its nominees
and will be segregated on BNY Mellon's books and records from BNY Mellon's own
property. Customer and its authorized representatives will have the right, at Customer's
own expense and with reasonable prior written notice to BNY Mellon, to have reasonable
access to those books and records directly pertaining to the Fund. Any such access will
occur during BNY Mellon's normal business hours and will be subject to BNY Mellon's
applicable security policies and procedures.
9.3. Third Party Data
(a) Customer acknowledges that BNY Mellon will be receiving, utilizing and relying on
Market Data and other data provided by Customer and/or by third parties in
13
(b)
(c)
BNY MELLON AND CUSTOMER CONFIDENTIAL
connection with its performance of the services hereunder (collectively, "Third
Party Data"). BNY Mellon is entitled to rely without inquiry on all Third Party Data
provided to BNY Mellon hereunder (and all lnstructions related to Third Party
Data), and BNY Mellon makes no assurances or warranties in relation to the
accuracy or completeness of Third Party Data and will not be responsible or liable
for any losses or damages incurred as a result of any Third Party Data that is
inaccurate or incomplete. BNY Mellon may follow Instructrons with respect to Third
Party Data, even if such lnstructions direct BNY Mellon to override its usual
procedures and data sources or if BNY Mellon, in performing services for itself or
others (including services similar to those performed for Customer), receives
different Third Party Data for the same or similar Securities.
To the extent that BNY Mellon provides values of, and pricing information in
relation to, Securities, Customer acknowledges and agrees that:
(i) BNY Mellon is authorized to use generally recognized pricing services
including Market Data Providers, brokers, dealers and other market
makers. ln the event that such pricing services are unable to provide a
value of or pricing information in respect of Securities and BNY ftIellon
provides values and pricing information, BNY Mellon will so advise
Customer, but will have no other responsibility or liability in respect of such
valuation or pricing information;
(ii)Certain pricing or valuation information may be based on calculated
amounts rather than actual market transactions and may not reflect actual
market values, and the variance between such calculated amounts and
actual market values may be material;
(iii)Certain third party service providers may not permit Customer's directed
price to be used, which may result in differences between third party
service provider reports and custodial reports;
(iv) Performance measurement and analytic services may use different data
sources than those used by BNY Mellon to provide Market Data for the
Fund, which may result in differences between custodial reports and
performance measurement and analytic reports; and
(v)BNY Mellon may require Customer to execute supplemental
documentation prior to providing pricing for certain Securities.
Certain Market Data may be the intellectual property of lvlarket Data Providers,
which impose additionalterms and conditions upon Cuslomer's use of such Market
Data. Such additional terms and conditions can be found on the Data Terms
Website. Customer agrees to those terms and condilions as they are posted on
the Data Terms Website from time to time.
14
BNY I\4ELLON AND CUSTOMER CONFIDENTIAL
10.
10.1 .
DISCLOSURES
Required Disclosure
(a) With respect to Securities that are registered under the U.S. Securities Exchange
Act of '1934, as amended, or that are issued by an issuer registered under the U.S.
lnvestment Company Act of 1940, as amended, the U.S. Shareholder
Communications Act of 1985 (the "Act") requires BNY Mellon to disclose to issuers
of such Securities, upon their request, the name, address and securities position
of BNY Mellon's clients who are "beneflcial owners" (as defined in the Act) of the
issuer's Securities, unless the beneficial owner objects to such disclosure. The
Act defines a "beneficial owner" as any person who has or shares the power to
vote a security (pursuant to an agreement or otherwise) or who directs the voting
of a security. Customer has desrgnated on the signature page hereof whether (i)
as beneficial owner, it objects to the disclosure of its name, address and securities
position to any U.S. issuer that requests such information pursuant to the Act for
the specific purpose of direct communacations between such issuer and Customer
or (ii) it requires BNY Mellon lo contact the lnvestment Manager with respect to
relevant Securities to make the decision as to whether it obiects to the disclosure
of the beneficial owner's name, address and securities position to any U.S. issuer
that requests such information pursuant to the Act.
(b) With respect to certain Securities issued outside the United States, BNY Mellon
may disclose information to issuers of Securilies as required by the organizational
documents of the relevant issuer or in accordance with local market practice.
(c)ln connection with any disclosure contemplated by this Section 10.1, Customer
agrees to supply BNY lvlellon with any required information.
10.2. Foreign ExchangeTransactions
ln connection with this Agreement, Customer may enter into foreign exchange
transactions (including foreign exchange hedging transactions) with BNY Mellon or a BNY
Mellon Affiliate acting as a principal or otherwise through customary channels. Customer
may issue standing lnstructions with respect to any such foreign exchange transactions,
subject to any rules or limitations that may apply to any foreign exchange facility made
available to the Fund, With respect to any such foreign exchange transactions, BNY
l\4ellon or such BNY l\4ellon Affiliate is acting as a principal counterparty on its own behalf
and is not acting as a fiduciary or agent for, or on behalf of, Customer, its lnvestment
Manager or the Trust. Any such foreign exchange transactions will be governed by the
relevant master netting agreement (e,9., an ISDA Master Agreement) in place between
Customer and BNY Mellon or such BNY Mellon Affiliate, and such transactions will be
secured by the Fund and the Assets therein pursuant lo Section 8.4. ln the event there is
no such master netting agreement in place and Customer fails to settle or otherwise meet
its obligations in respect of such foreign exchange transactions, BNY l\4ellon has the right
to net all such outstanding foreign exchange transactions between the Trust and BNY
Mellon or such BNY Mellon Affiliate for the purpose of ascenaining a single net obligation
between the Trust and BNY lvlellon, and to the extent such obligation is owed by the Trust
to BNY Mellon or a BNY Mellon Affiliate, such obligation will be secured by the Fund and
the Assets therein pursuant to Section 8,4,
BNY
"ELLON
AND CUSTOMER CONFIDENTIAL
10.3. lnvestment of Cash
ln connection with this Agreement, Customer may issue standing lnstructions to invest
Cash in one or more sweep investment vehicles. Such investment vehicles may be
offered by a BNY Mellon Affiliate or by a client of BNY N,4ellon, and BNY tvlellon may
receive compensation therefrom. By making investment vehicles available, BNY Mellon
and its Affiliates will not be deemed to have recommended, endorsed or guaranteed any
such investment vehicle in any way or otherwise to have acted as a fiduciary or agent for,
or on behalf of, Customer, any Named Fiduciary, any lnvestment ft/tanager or the Fund.
BNY Mellon will have no liability for any loss incurred on any such investments. Customer
understands that Cash may be uninvested if it is received or reconciled to an account in
the Fund after the applicable deadline to be swept into the selected investment vehicle.
l'.\.
11 .1.
REGULATORY MATTERS
USA PATRIOT Act
Section 326 of the U.S. Uniting and Strengthening America by Providing Appropriate Tools
Required to lntercept and Obstruct Terrorism Act of 2001 (including its implementing
regulations) requires BNY Mellon to implement a customer identification program pursuant
to which BNY Mellon must obtain certain information from Customer in order to verify
Customer's identity prior to establishing an account. Accordingly, prior to establishing the
Fund, Customer will be required to provide BNY Mellon with certain information, including
Customer's name, physical address, tax identification number and other pertinent
identifying information, to enable BNY Mellon to verify Customer's identity. Customer
acknowledges that BNY Mellon cannot establish an account unless and until BNY Mellon
has successfully performed such veriflcation.
11.2. Sanctions
(a) Throughout the term of this Agreement, Customer: (i) will have in place and will
implement policies and procedures designed to prevent violations of Sanctions,
including measures to accomplish effective and timely scanning of all relevant data
with respect to incoming or outgoing Assets or transactions relating to this
Agreement; (ii) will ensure that neither Customer nor any of its Affiliates, directors,
officers or employees 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) will not, directly or indirectly, use the Fund in any manner that
would result in a violation by Customer or BNY Mellon of Sanctions.
(b)Customer will promptly provide to BNY Mellon such information as BNY lvlellon
reasonably requests in connection with the matters referenced in this Section 11.2,
including information regarding the Fund, the Assets and the source thereof, and
the identity of any individual or entity having or claiming an interest therein. BNY
Mellon may decline to act or provide services in respect ofthe Fund, and take such
other actions as it, in its reasonable discretion, deems necessary or advisable, in
connection with the matters referenced in this Section 11.2. lf BNY lvlellon
declines to act or provide services as provided in the preceding sentence, except
as otheruise prohibited by applicable law or official request, BNY Mellon will inform
Customer as soon as reasonably practicable.
16
BNY MELLON AND CUSTOMER CONFIDENTIAL
11.3. Express Authorization for ERISA Purposes
Without limiting the generality of Section 3.2 (lnstructions), which generally permits any
actions by BNY Mellon hereunder pursuant to lnstructions, BNY Mellon is expressly
authorized to, in the administration of the Fund pursuant to lnstructions, (i) settle
purchases of annuities by making payments out of the Fund to purchase annuity contracts,
including terminal group annuity contracts (which annuity contracts will not be held as
Assets of the Plan and for which the Trustee will not be the contractholder); and (ii) settle
investments in any collective investment fund, including a collective investment fund
maintained by BNY Mellon or a BNY Mellon Affiliate and to appoint agents and sub-
trustees. To the extent that any investment is made in any such collective investment
fund, the terms of the collective trust indenture will solely govern the investment duties,
responsibilities and powers of the trustee of such collective investment fund and such
terms, responsibilities and powers will be incorporated herein by reference and will be a
part of this Agreement. For purposes of valuation, the value ofthe interest maintained by
the Fund in such collective investment fund will be the fair market value of the collective
investment fund units held, determined in accordance with generally recognized valuataon
procedures. Customer understands and agrees that any such collective investment fund
may provide for the lending of its securities by the collective investment fund trustee and
that such collective investment fund trustee will receive compensation for the lending of
securities that is separate from any compensation of BNY Mellon hereunder, or any
compensation of the collective investment fund trustee for the management of such fund.
BNY Mellon is authorized to invest in a collective fund which invests in The Bank of New
York Mellon Corporation stock in accordance with the terms and conditions of the
Department of Labor Prohibited Transaction Exemption 95-56 (the "Exemption") granted
to Mellon Bank, N.A. and its affiliates and to use a cross-trading program in accordance
with the Exemption. Customer acknowledges receipt of the notice entitled "Cross-Trading
lnformation," a copy of which is attached as Exhibit A.
COMPENSATION12.
12.1.Fees and Expenses
ln consideralion of BNY Mellon's services provided hereunder, BNY Mellon will be (a) paid
the fees set forth in the agreed upon fee schedule (as such fee schedule may be amended
by BNY Mellon from time to time upon 45 days'prior written notice to Customeo and
(b) reimbursed for any out-of-pocket and incidental expenses incurred by BNY Mellon in
connection therewith. Unless otherwise agreed by the Parties, such amounts will be
payable to BNY Mellon within 45 days of Customer's receipt of the relevant invoice.
Without limiting BNY Mellon's other rights set forth in this Agreement, BNY Mellon may
charge interest on overdue amounts at a rate then charged by BNY Mellon to its
institutional trust clients rn the relevant currency. BNY l/ellon is authorized to charge and
collect from the Fund its fees and expenses unless such fees and expenses are paid
directly by Customer.
12.2. OtherCompensation
Customer acknowledges that, as part of BNY Mellon's compensation, BNY Mellon will
earn interest on Cash balances held by BNY Mellon (including disbursement balances,
balances arising from purchase and sale transactions and when Cash otherwise remains
uninvested) as provided in BNY Mellon's compensation disclosures.
17
REPRESENTATIONS, WARRANTIES AND COVENANTS
BNY Mellon
BNY Mellon represents and warrants that: (a) it is duly organized, validly existing and in
good standing in its jurisdiction of organization; (b) it has the requisite corporate power
and authority to enter into and to carry out the transactrons conlemplated by this
Agreement and (c) the individual executing this Agreement on its behalf has the requisite
authority to bind BNY Mellon to this Agreement.
13.2. Customer
(a)Customer represents and warrants that: (i) it is duly organized, validly existing and
in good standing in its jurisdiction of organization; (ii) it has the requisite corporate
power and authority to enter into and to carry out the transactions contemplated
by this Agreement and (iii) the individual executing this Agreement on its behalf
has the requisite authority to bind Customer to this Agreement.
(b)Customer represents and warrants that either: (i) it is the Named Fiduciary with
authority to appoint a trustee under ERISA and the Plan or (ii) the Named Fiduciary
with the authority to appoint a trustee under ERISA and the Plan is identified in the
definition of Named Fiduciary and Customer is acting on behalf of and has
authority to bind the Named Fiduciary to this Agreement.
(c)Customer represents that it maintains and follows procedures to avoid any non-
exempt "prohibited transaction" as defined in Section 406 of ERISA.
13.
13.1 .
'14.
14.1.
LIABILITY
Standard of Care
BNY Mellon will discharge its duties under this Agreement (a) with the standard of care
and diligence that a professional custodian would observe in these affairs taking into
account the prevailing rules, practices, procedures and circumstances in the relevant
market and (b) to the extent applicable to BNY Mellon's duties, with the care and skill
required under ERISA (as applicable, the "Standard of Care"). Exhibit B to this
Agreement sets forth BNY Mellon's statement of fiduciary status.
'14.2. Limitation of Liability
(a) BNY Mellon's liability arising out of or relaling to this Agreement will be limited
solely to those direct damages that are caused by BNY Mellon's failure to perform
its obligations under this Agreement in accordance with the Standard of Care. ln
no event will BNY Mellon be liable for any indirect, incidental, consequential,
exemplary, punrtive or special losses or damages, or for any loss of revenues,
profits or business opportunity, arising out of or relating to this Agreement (whether
or not foreseeable and even if BNY Mellon has been advised of the possibility of
such losses or damages).
18
BNY MELLON AND CUSTOMER CONFIDENTIAL
(b)
(c)
(d)
BNY Mellon is not a party to, and has no duties or responsibilities under, the Plan
other than those that may be expressly contained in this Agreement. Customer
acknowledges that the Plan does not impose any duties on BNY Mellon other than
those contained in this Agreement.
The duties of BNY Mellon are limited to lhe Fund, and BNY Mellon has no duties
with respect to assets held by any other Person including any other trustee for the
Plan. Customer agrees that BNY Mellon will not serve as, and will not be deemed
to be, a co{rustee under any circumstances, including any circumstances under
which BNY Mellon continues to hold Assets under Section 16.5.
Nohvithstanding anything to the contrary set forth in this Agreement, in no event
will BNY lVellon be liable for any losses or damages arising out of any of the
following:
(i) Customer's or an Authorized Person's decision to invest in or hold Assets
in any particular country, including any losses or damages arising out of or
relating to: (A) the financial infrastructure of a country; (B) a country's
prevailing custody and settlement practices; (C) nationalization,
expropriation or other governmental actions; (D) a country's regulation of
the banking or securities industry; (E) currency and exchange controls,
restrictions, devaluations, redenominations, fluctuations or asset freezes;
(F) laws, rules, regulations or orders that at any time prohibit or impose
burdens or costs on the transfer of Assets to, by or for the Fund or
(G) market conditions which affect the orderly execution of securities
transactions or affect the value of securities;
(ii) BNY Mellon's reliance on lnstructions;
(iii) BNY Mellon's 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);
(iv)For any matter with respect to which BNY Mellon is required to act only
upon the receipt of lnstructions, (A) BNY Mellon's failure to act in the
absence of such lnstructions or (B) lnstructions that are late or incomplete
or do not otherwise satisfy the requirements of Section 3.2(e), whether or
not BNY Mellon acted upon such lnstructions;
(v)BNY Mellon receiving or transmitting any data to or from Customer or any
Authorized Person via any non-secure method of transmission or
communication selected by Customer;
(vi)Customer's or an Authorized Person's decision to invest in Securities or to
hold Cash in any currency; or
(vii) The insolvency of any Person, including a Subcustodian that is not a BNY
Mellon Affiliate, Depository, broker, bank or a counterparty to the
settlement of a transaction or to a foreign exchange transaction, except as
provided in Section 4.2.
19
BNY II,,]ELLON AND CUSTOMER CONFIDENTIAL
BNY MELLON AND CUSTOMER CONFIDENTIAL
(e)lf BNY Mellon is in doubt as to any action it should or should not take, either
pursuant to, or in the absence of, lnstructions, BNY Mellon may obtain the advice
of either reputable counsel of its own choosing or counsel to Customer, and BNY
Mellon will not be liable for acting in accordance with such advice.
14.3. Force Majeure
BNY Mellon will not be responsible or liable for any failure or delay in the performance of
its obligations under this Agreement to the extent caused, directly or indirectly, by any
event beyond its reasonable control, including acts of God, strikes or other labor disputes,
work stoppages, acts of war, terrorism, general civil unrest, governmental or military
actions, legal constraint or the interruption, loss or malfunction of utilities or
communications or computer systems. BNY lVlellon will promptly notify Customer upon
the occurrence of any such event and will use commercially reasonable efforts to minimize
its effect.
14.4. lndemnification
Customer and, except to the extent prohibited by applicable law, the Trust will jointly and
severally indemnify and hold harmless BNY Mellon from and against all losses, costs,
expenses, damages and liabilities (including reasonable counsel fees and expenses)
incurred by BNY Mellon, and will defend BNY Mellon against any third party claim, in each
case arising out of or relaling to BNY Mellon's performance under this Agreement, except
to the extent resulting from BNY lrtlellon's failure to perform rts obligations under this
Agreement in accordance with the Standard of Care. The Parties agree that the foregoing
will include reasonable counsel fees and expenses incurred by BNY Mellon in connection
with its successful defense of claims asserted by Customer or relating to BNY Mellon's
performance under this Agreement. BNY Mellon will indemnify and hold harmless
Customer and the Trust from and against all losses, costs, expenses, damages and
liabilities (including reasonable counsel fees and expenses) incurred by Customer and/or
the Trust, and will defend them against any third party claim, in each case arising out of
BNY lvlellon's failure to perform its obligations under this Agreement in accordance with
the Standard of Care.
CONFIDENTIALITY
Confi dentiality Obligations
Each Party agrees to use the Confidential lnformation of the other Party solely to
accomplish the purposes of this Agreement and, except in connection with such purposes
or as otherwise permitted herein, not to disclose such information to any other Person
without the prior written consent of the other Party. Notwithstanding the foregoing, BNY
Mellon may: (a) use Customer's Confidential lnformation in connection with certain
functions performed on a centralized basis by BNY Mellon, its Affiliates and joint ventures
and their service providers (including audit, accounting, risk, legal, compliance, sales,
adminislration, product communication, relationship management, compilation and
analysis of customer-related data and storage); (b) disclose such information to its
Affiliates and joint ventures and to its and their service providers who are subject to
confidentiality obligations and (c) store the names and business contact information of
Customer's employees and representatives relating to this Agreement on the systems or
in the records of its Affiliates and joint ventures and its and their service providers. ln
20
15.
15.1.
BNY MELLON AND CUSTOMER CONFIOENTIAL
addition, BNY Mellon may aggregate information regarding Customer and the Fund on an
anonymized basis with other similar client data for BNY Mellon's and its Affiliates'
reporting, research, product development and distribution, and marketing purposes.
15.2. Exceptions
The Parties' respective obligations under Section 15.'1 will not apply to any such
information: (a) that is, as of the time of its disclosure or thereafter becomes, part of the
public domain through a source other than the receiving Party; (b) that was known to the
receiving Party as of the time of its disclosure and was not otherwise subject to
confidentiality obligations; (c) that is independently developed by the receiving Party
without reference to such information; (d) that is subsequently learned from a third party
not known to be under a confidentiality obligation to the disclosing Party or (e) that is
required to be disclosed pursuant to applicable law, rule, regulation, requirement of any
law enforcement agency, court order or other legal process or at the request of a
regulatory authority including, but not limited to, the PUC or FERC.
TERM AND TERMINATION16.
16.1.Term
The term of this Agreement will commence on the Effective Date and will continue in effect
until terminated in accordance with the provisions herein.
16.2. Removal or Resignation
BNY Mellon may be removed with respect to all or part of the Fund upon receipt of 60
days' written notice (unless a shorter or longer period is agreed upon) from Customer.
BNY Mellon may resign as trustee hereunder upon 120 days' written notice (unless a
shorter or longer period is agreed upon) delivered to Customer.
16.3. Effect of Removal or Resignation
ln the event of such removal or resignation, a successor trustee will be appointed and
BNY Mellon will transfer the Fund, less such amounts as may be reasonable and
necessary to cover its compensation and expenses, to the successor trustee. ln the event
Customer fails to appoint a successor trustee within 120 days of receipt of written notice
of resignation or removal, BNY Mellon reserves the right to seek the appointment of a
successor trustee from a court of competent jurisdiction. This Agreement will terminate
after a successor trustee has accepted its duties and BNY Mellon has transferred all
Assets then held by BNY lvlellon to the successor trustee. BNY Mellon will have no duties,
responsibilities or liability with respect to the acls or omissions of any successor trustee.
16.4. Plan Termination
Subject to Section 1 of the Defrned Beneflt Schedule, if BNY Mellon receives written notice
from Customer of the termination of the Plan, BNY Mellon will distribute all assets, less
any fees and expenses payable from the Fund, pursuant to lnstructions and upon receipt
of appropriate documentation. BNY N/ellon is entitled to assume that such distributions
are in full compliance with, and not in violation of, the terms of the Plan or any applicable
law.
21
BNY MELLON AND CUSTOMER CONFIDENTIAL
16.5. Assets Not Transferred
BNY Mellon reserves the right to retain any Assets that are not suitable for distribution or
transfer at the time of the termination of the PIan or this Agreement and will hold such
Assets for the benefit of those Persons entitled to such Assets until such time as BNY
Mellon is able to make distribution. Upon the appointmentand acceptance ofa successor
trustee with respect to the Assets, BNY Mellon's sole duties will be those of a custodian
with respect to the Assets not transferred.
16.6. Survival
Any and all provisions of this Agreement which by their nature or effect are required or
intended to be observed, kept or performed after the expiration or termination of this
Agreement will survive the expiration or any termination of this Agreement and remain
binding upon and for the Parties' benefit, including Section 13 (Representations,
Warranties and Covenants); Section 14 (Liability); Section 15 (Confidentiality);
Sections 16.2 through 16.6 (Removal or Resignation; Effect of Removal or Resignation;
Plan Termination; Assets Not Transferred; Survival); and Section 17.5 (Governing
Law/Forum).
17.
17.1.
GENERAL
Line ltem and Non-Fund Assets
(a) BNY Mellon may reflect on its books and records certain bookkeeping entries for
Assets including, but not limited to, book-entry Securities and limited partnership
interests that are selected and monitored by an Authorized Person. BNY Mellon
will rely without independent verification on information provided by Customer or
its designee regarding such Assels, including but not limited to positions and
market valuations.
(b)At Customer's request pursuant to lnstructions, subject to BNY Mellon's approval
and as an accommodation to Customer, BNY Mellon will provide consolidated
recordkeeping services reflecting on statements provided to Customer securities
and other assets not held by BNY Mellon ("Non-Fund Assets"). Non-Fund Assets
will be designated on BNY Mellon's books as "assets not held in custody" or by
other similar designation and will not constitute part of the Fund for purposes of
this Agreement. Customer acknowledges and agrees that, notwithstanding
anything contained elsewhere in this Agreement, (a) Customer will have no
security entitlement against BNY N/ellon with respect to Non-Fund Assets; (b) BNY
Mellon will rely, without independent verification, on information provided by
Customer or its designee regarding Non-Fund Assets (including positions and
market valuations) and (c) BNY IUellon will have no responsibility whatsoever with
respect to Non-Fund Assets or the accuracy of any information maintained on BNY
Mellon's books or set forth on account statements concerning Non-Fund Assets.
To the extent assets of the Pian are held outside of the Fund pursuant to
lnstructions, Customer will cause such assets to be held in accordance with the
trust, bonding and other requirements of ERISA.
22
BNY MELLON ANO CUSTOMER CONFIOENTIAL
17.2. Assignmenuu.S. Special Resolution Regime Transferability
(a) Neither Party may, without the other Party's prior written consent, assign any of its
rights or delegate any of its duties under this Agreement (whether by change of
control, operation of law or otherwise); provided, however that BNY Mellon may,
without the prior written consent of Customer, assign this Agreement or any of its
rights, or delegate any of its duties hereunder: (a) to any BNY N4ellon Affiliate; (b) to
any successor to the business of BNY Mellon to which this Agreement relates, in
which event BNY tvlellon agrees to provide notice of such successor to Customer
or (c) as otherwise permitted in this Agreement. Any purported assignment or
delegation by a Party in violation of this provision will be voidable at the option of
the other Party. This Agreement will be binding upon, and inure to lhe benefit of,
the Parties and their respective permitted successors and assigns.
17.3. ExclusiveBenefit
The assets of the Trust will be held for the exclusive purposes of providing benefits to Plan
participants and their beneficiaries and defraying the reasonable expenses of
administering the Plan and the Trust. Except as may be permitted by law or by the terms
of the Plan or this Agreement, at no time prior to the satisfaction of all liabilities with respect
to Plan participants and their beneficiaries will any part ofthe Trust be used for or diverted
to any purpose other than for the exclusive benefit of the participants and their
beneficiaries. Except as may be provided by law, the Fund will not be subject to any form
of attachment, garnishment, sequestration or other actions of collection afforded creditors
of Customer or participants or beneficiaries under the Plan, and BNY Mellon will not
recognize any assignment or alienation of benefits unless an lnstruction is received.
17.4, Amendment
This Agreement may be amended or modifled only in a written agreement signed by an
authorized representative ofeach Party. For purposes ofthe foregoing, email exchanges
between the Parties will not be deemed to constitute a written agreement.
17.5. Governing Law/Forum
(a) To the extent not preempted by federal law, the substantive laws of the state of
New York (without regard to its conflicts of law provisions) will govern all matters
(b) Notwithstanding anything herein to the contrary, in the event BNY Mellon becomes
subject to a proceeding under a U.S. special resolution regime, the transfer of the
Agreement (and any interest and obligation in or under, and any property securing,
the Agreement) from BNY Mellon will be effective to the same extent as the transfer
would be effective under the U.S. special resolution regime if the Agreement (and
any interest and obligation in or under, and any property securing, the Agreement)
were governed by the laws of the United States or a state of the United States;
and, in the event BNY lvlellon or any affiliate becomes subject to a proceeding
under a U.S. special resolution regime, default rights with respect to the Agreement
that may be exercised against BNY Mellon are permitted to be exercised to no
greater extent than the default rights could be exercised under the U.S. special
resolution regime if the Agreement were governed by the laws of the United States
or a state of the United States.
BNY MELLON AND CUSTOMER CONFIOENTIAL
(b)
arising out of or relating to this Agreement, including the establishment and
maintenance of the Fund and for purposes of the Uniform Commercial Code and
all issues specified in Article 2(1) of the Hague Securities Convention.
Each Party irrevocably agrees that all legal actions or proceedings brought by it
against the other Party arising out of or relating to this Agreement will be brought
solely and exclusively before the state or federal courts situated in New York City,
New York. Each Party irrevocably submits to personal jurisdiction in such courts
and waives any objection which it may now or hereafler have based on improper
venue or forum non conveniens. The Parties hereby unconditionally waive, to the
fullest extent permitted by applicable law, any right to a jury trial with respect to
any such actions or proceedings.
17.6. Sovereign lmmunity
To the extent that in any jurisdiction Customer may now or hereafter be entitled to claim,
for itself or its assets, immunity from suit, execution, attachment (before or after judgment)
or other legal process, Customer irrevocably agrees not to claim, and it hereby waives,
such immunity.
17.7. Notices
Other than routine communications in the ordinary course of providing or receiving
services hereunder (including lnstructions), notices given hereunder will be: (a) addressed
to BNY Mellon or Customer at the address set forth on the signature page (or such other
address as either Party may designate in writing to the other Party) and (b) sent by hand
delivery, by certified mail, return receipt requested, or by overnight delivery service, in
each case with postage or charges prepaid. All notices given in accordance with this
Section will be effective upon receipt.
17.8. Entire Agreement
This Agreement constitutes the sole and entire agreement among the Parties with respect
to the matters dealt with herein, and merges, integrates and supersedes all prior and
contemporaneous discussions, agreements and understandings between the Parties,
whether oral or written, with respect to such matters.
17.9. Necessary Parties
BNY Mellon reserves the right to seek a judicial or administrative determination as to its
proper course of action under this Agreement. Nothing contaaned herein will be construed
or interpreted to deny BNY Mellon or Customer the right to have BNY lvlellon's account
judicially determined. To the extent permitted by law, only BNY Mellon and Customer will
be necessary parties in any application to the courts for an interpretation of this Agreement
or for an accounting by BNY Mellon, and no participant under the Plan or other Person
having an interest in the Fund will be entitled to any notice or service of process. Any final
judgment entered in such an action or proceeding will, to the extent permitted by law, be
conclusive upon all Persons.
24
BNY MELLON AND CUSTOIT,!ER CONFIDENTIAL
17.10. No Third Party Beneficiaries
This Agreement is entered into solely between, and may be enforced only by, the Parties.
Each Party intends that this Agreement will not, and no provision of this Agreement will be
interpreted to, benefit, or create any right or cause of action in or on behalf of, any party
or entity other than the Parties, their respective successors and assigns, and participants
and their beneficiaries under the Plan.
1 7.1 1. Counterparts/Facsimile
This Agreement may be executed in any number of counterparts, each of which will be
deemed an original, and said counterparts when taken together will constitute one and the
same instrument and may be sufficiently evidenced by one set of counterparts, This
Agreement may also be executed and delivered by facsimile or email with confirmation of
delivery and/or receipt.
17.12. lnterpretation
The terms and conditions of this Agreement are the result of negotiations betvveen the
Parties. The Parties intend that this Agreement will not be construed in favor of or against
a Party by reason of the extent to which such Party or its professional advisors participated
in the preparation or drafting of this Agreement.
17.13. No Waiver
No failure or delay by a Party to exercise any right, remedy or power it has under this
Agreement will impair or be construed as a waiver of such right, remedy or power. A
waiver by a Party of any provision or any breach of any provision will not be construed to
be a waiver by such Party of such provision in any other instance or any succeeding
breach of such provision or a breach of any other provision. All waivers will be in writing
and signed by an authorized representative of the waiving Party.
17.14. Headings
All section and subsection headings in this Agreement are included for convenience of
reference only and will not be considered in the interpretation of the scope or intent of any
provision of this Agreement.
17.15. Severability
lf a court of competent jurisdiction determines that any provision of this Agreement is illegal
or invalid for any reason, such illegality or invalidity will not affect the validity of the
remainder of this Agreement. ln such case, the Parties will negotiate in good faith to
replace each illegal or invalid provision with a valid, Iegal and enforceable provision that
fulfills as closely as possible the original intent of the Parties.
[Signature page follows]
25
BNY MELLON AND CUSTOMER CONFIDENTIAL
lN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
THE BANK OF NEW YORK MELLON PACIFICORP
By:By:
Name:Name:
Title:Title:
Date:Date
Address for Notice:Address for Notice:
The Bank of New York Mellon PacifiCorp
Attention:Attention:
BNY Mellon Dellned Benefit Single Plan Trust (revised 04.09.'19)
Pursuant to Section 1 0.1 (a):
[ ] as beneficial owner, Customer OBJECTS to disclosure
[ ] as beneficial owner, Customer DOES NOT OBJECT to disclosure
[ ] BNY li,4ellon will CONTACT THE INVESTMENT IVIANAGER with respect to relevant
Securities to make the decision whether it objects to disclosure
IF NO BOX IS CHECKED,BNY MELLON WILL RELEASE SUCH INFORMATION UNTIL IT
RECEIVES A CONTRARY INSTRUCTION FROM CUSTOMER OR INVESTMENT
IVANAGER, AS APPLICABLE.
DEFINED BENEFIT SCHEDULE
ADDITIONAL PROVISIONS FOR DEFINED BENEFIT PLANS
The following additional terms and conditions supplement the Agreement and will in all respects
be considered part of the Agreement.
1. Plan Termination
lf the Plan is subject to the jurisdiction of the Pension Benefit Guaranty Corporation
('PBGC") as provided under ERISA and BNY Mellon receives written notice of the
termination of the Plan by Customer, BNY Mellon will take no action with respect to the
termination until it has received notice from Customer that PBGC has been notified of the
termination and has not notified Customer of its disapproval, in accordance with its
regulations. Thereafter, BNY Mellon will distribute all assets then constituting the Fund,
less any fees and expenses payable from the Fund, pursuant to lnstructions and upon
receipt of appropriate documentation.
2. 401(h) Account
This Section 2 of the Defined Benefit Schedule only applies if any Plan includes a separate
account established and maintained to provide sickness, accident, hospitalization and/or
medical expenses pursuant to Section 401(h) of the Code, which account may include
excess pension assets contributed pursuant to Section 420 of the Code (a "401(h)
Account").
(a) ln addition to the return of contributions to Customer permitted under Section
2.2(b), BNY Mellon will pay to Customer from the 401(h) Account an amount
determined by Customer, provided that Customer certifies to BNY Mellon that such
amount constitutes reimbursement to Customer for its payment of "qualified
current retiree health liabilities," as permitted under Section 420(cXl XA) of the
Code,
(c)Subject to Section 2.3 (Procedures for Segregation of Assets), for investment
purposes BNY Mellon will commingle the assets of the Plan with the assets of the
401(h) Account unless Customer directs BNY Mellon to do otherwise. While the
assets of the 401(h) Account and the Plan will be commingled for investment
purposes, BNY Mellon at all times will maintain such records as are necessary to
separately identify the portion of the Fund that is attributable to the 401 (h) Account
and the Plan.
Defi ned Benefit Schedule-1
(b) Prior to the satisfaction of all liabilities under the 401(h) Account, no part of the
401(h) Account may be used for, or diverted to, any purpose other than providing
401(h) benefits. Upon the satisfaction of all liabilities under the Plan to provide
401(h) benefits, any amount remaining in the 401 (h) Account must, under the
terms of such Plan, be returned to the applicable employer.
EXHIBIT A
CROSS-TRADING INFORMATION
As part ofthe Cross-Trading Program covered by the Department of Labor Prohibited Transaction
Exemption ("PTE") 95-56 granted to Mellon Bank, N.A. and its affiliates ("BNY Mellon"), BNY
Mellon is to provide to each affected employee benefit plan the following information:
BNY Mellon has developed and intends to utilize, wherever practicable, a Cross-Trading
Program for lndexed Accounts and Large Accounts as those terms are defined in PTE 95-
56.
ln accordance with PTE 95-56, three "Triggering Events" may create opportunities for
Cross-Trading transactions- They are generally the following (see PTE 95-56 for more
information):
A change in the composition or weighting of the index by the independent
organization creating and maintaining the index;
A change in the overall level of investment in an lndexed Account as a result of
investments and withdrawals on the lndexed Account's opening date, where the
lndexed Account is a bank collective fund, or on any relevant date for non-bank
collective funds; provided, however, a change in an lndexed Account resulting from
investments or withdrawals of assets of BNY Mellon's own plans (other than BNY
Mellon's defined contributions plans under which participants may direct among
various investment options, including lndexed Accounts) are excluded as a
"Triggering Events"; or
Equity Securities - the current market value for the equity security will be the closing price
on the day of trading as determined by an independent pricing service; unless the security
was added to or deleted from an index after the close of trading, in which case the price
will be the opening price for that security on the next business day after the announcement
of the addition or deletion.
Debt Securities - the current market value of the debt security will be the price determined
by BNY Mellon as of the close of the day of trading according to the Securities and
Exchange Commission's Rule 17a-7(b)(4) under the lnvestment Company Act of 1940.
Exhibit A-1
1
2
3
l. The Existence ofthe Cross-Tradinq Prooram
ll. The "Triooerino Events" Creatinq Cross-Trade Oooortunities
A recorded declaration by BNY Mellon that an accumulation of cash in an lndexed
Account attributable to interest or dividends on, and/or lender offers for portfolio
securitres equal to not more than .5% of the lndexed Account's total value has
occurred.
lll. The Pricinq t\,4echanism Utilized for Securities Purchased or Sold
Securities will be valued at the current market value for the securities on the date of the
crossing transaction.
Debt securities that are not reported securities or traded on an exchange, will be valued
based on an average of the highest current independent bids and the lowest current
independent offers on the day of cross trading. BNY Mellon will use reasonable inquiry to
obtain such prices from at least three independent sources that are brokers or market
makers, lf there are fewer than three independent sources to price a certain debt security,
the closing price quotations will be obtained from all available sources.
lV. The Allocation lvlethod and Other Procedures
Exhibit A-2
Direct cross-trade opportunities will be allocated among potential buyers or sellers of debt
or equity securities on a pro-rata basis. With respect to equity securities, please note BNY
Mellon imposes a trivial dollar amount constraint to reduce excessive custody ticket
charges to participating accounts.
EXHIBIT B
FIDUCIARY STATUS
The following statement is required by Section 408(b)(2) of ERISA:
29 C.F.R. S 2550.408b-2(c)(t )(iv)(B) requires a covered service provider, if applicable, to provide
a statement that the service provider expects to provide services as a fiduciary within the meaning
of Section 3(21 ) of ERISA. As trustee, BNY Mellon reasonably expects that some of the services
which it will provide under the Agreement will be as a fiduciary as defined in Section 3(21) of
ERISA and some will be non-fiduciary in nature. ln its role as a directed trustee, BNY Mellon
does not have discretionary investment management authority, render investment advice for a
fee or have discretionary authority or responsibility in the administration of the covered Plan(s).
Nonetheless, as a directed trustee, BNY Mellon retains certain limited fiduciary responsibilities,
such as determining that directions of a named fiduciary are proper, following processes designed
to avoid non-exempt prohibited transactions, and not knowingly participating in a breach of
fiduciary responsibility of another flduciary. All of BNY Mellon's custodial duties and
responsibilities, including but not limited to safekeeping of assets, processing of corporate
actions, trade settlement, posting of income and other receipts, reporting of transactions and
reporting of prices are expected to be performed in a non-fiduciary capacity. Ultimately, whether
BNY lrilellon is acting as a fiduciary is dependent upon the terms of the Agreement and the facts
surrounding a particular function. With respect to foreign exchange transactions done through
BNY Mellon's Global Markets FX Desk, it is acting as a principal counterparty on its own behalf
and is not acting as a fiduciary or agent for Customer, any Authorized Person or the Trust.
Exhibit B-'l
BNY MELLON AND CUSTOMER CONFIDENTIAL
BNY METLON
WELFARE TRUST AGREEMENT
By and Between
THE BANK OF NEW YORK MELLON
And
PACIFICORP
For the
PAGIFICORP UNION EMPLOYEES WELFARE BENEFITS TRUST
BNY MELLON AND CUSTOIMER CONFIDENTIAL
TABLE OF CONTENTS
DEFINITIONS 1
APPOINTMENT OF TRUSTEE; THE FUND...2.1 Appointmentof Trustee........................2.2 Contributionsi lnvestment of the Fund..
2.3 Procedures for Segregation of Assets..
4
4
4
6
6
o
7II
III
o
9
I
o
I
0
AUTHORIZED PERSONS AND INSTRUCTIONS; ELECTRONIC3.1 Authorized Persons.,...........3.2 lnstructions........3.3 BNY Mellon Actions Without lnstructions........3.4 Funds Transfers3.5 E|ectronicAccess........................
ACCESS
4.SUBCUSTODIANS, DEPOSITORIES AND AGENTS4.1 Use of Subcustodians and Depositories..........4.2 Liability for Subcustodians...........4.3 Liabllity for Depositories4.4 Use of Agents....
5. CORPORATEACTIONS
Notification.........
Exercise of Rights
Partial Redemptions, Payments, Etc. ..
6.SETTLEMENT 10
10
10
10
6.1 Settlementlnstructions6.2 SettlementFunds........6.3 Settlement Practices ...
7.TAX MATTERS............10
........10
........11
........12
7.1 Tax Obligations ............
7 .2 Responsibility for Taxes
7 .3 Payments
o.CREDITS AND ADVANCES 12
12
12
12
12
8.1
6.t
8.3
8.4
Contractual Settlement and
Advances...........
Repayment ........
Securing Repayment..........
Income
9 STATEMENTS; BOOKS AND RECORDS; THIRD PARTY DATA9.1 Statements9.2 Booksand Records.,...........9.3 Third Party Data .................,
13
13
13
13
10. DISCLOSURES 14
14
'15
15
1 0.1 Required Disclosure.....
10.2 Foreign Exchang" f r"ntr"fion"
10.3 lnvestment of Cash ...................
1.
2.
3.
5.1
5.2
BNY MELLON AND CUSTOMER CONFIDENTIAL
TABLE OF CONTENTS
(continued)
11. REGULATORY MATTERS
13.
11.1
11.2
11.3
14.1
14.2
14.3
14.4
16
18
USA PATRIOT 4ct...................
Sanctions...........
Express Authorization for ERISA Purposes
12. COMPENSATION12.1 Fees and Expenses..........
12.2 Other Compensation ........
REPRESENTATIONS, WARRANTIES AND COVENANTS
13.1 BNY [,4ellon13.2 Customer...........
14. LIABILITY
Standard of Care....
Limitation of Liability
Force Majeure.,......
lndemnification .......
15. CONFIDENTIALITY...15.1 ConfidentialityObligations
15.2 Exceptions.........
16.TERM AND TERMINATION16.1 Term........................
17 .1
17.2
17.3
17.4
17.5
17.6
17.7
17.8
17.9
17.10
17 .11
17.12
17.13
17.14
17.15
16.2
16.3
16.4
16.5
16.6
21
21
a1
21
21
22
Removal or Resignation..............
Effect of Removal or Resignation
Plan Termination
Assets Not Transferred ...............
Surviva1..............
Line ltem and Non-Fund 4ssets....,..........
AssignmenVU.S. Special Resolution Regime Transferability.
Exclusive Benefit...............
Amendment......
Governing Law/Forum........
Sovereign lmmunity............
Notices ..............
Entire Agreement .........................
Necessary Parties ...............
No Third Party 8eneficiaries..................,,..
Counterparts/Facsimile ...............
lnterpretation
No Waiver..........
Headings
Severability........
_.. tb
... 16
...'16
.....17
.....17
.....17
...17
...17
... 18
..18
..18
..20
..20
._...20
.....20
.....21
17. GENERAL........22
.23
.23
.23
.24
t.+
.24
.24
24
.25
.25
,\
IJ
t5
ii
BNY MELLON ANO CUSTOMER CONFIDENTIAL
TABLE OF CONTENTS
(continued)
WELFARE SCHEDULE
1. PlanEstablishment..
EXHIBIT A
EXHIBIT B
BNY MELLON AND CUSTOMER CONFIDENTIAL
WELFARE TRUST AGREEMENT
This Agreement is made and entered into as of the latest date set forth on the signature
page hereto (the "Effectave Date") by and between THE BANK OF NEW YORK MELLON, a
bank organized under the laws of the state of New York ("BNY Mellon"), and PACIFICORP, an
Oregon corporation ("Customer"). BNY Mellon and Customer are collectively referred to as the
"Parties" and individually as a "Party".
RECITALS
WHEREAS, Customer and its subsidiaries or affrliates have established one or more
welfare benefit plans and may in the future adopt additional welfare benefit plans for the beneflt
of the employees and retirees who are eligible for coverage thereunder (individually or collectively
the "Plan");
WHEREAS, Customer has established or desires to establish a trust to provide for the
funding of and payment of certain welfare benefits under the Plan;
WHEREAS, Customer and State Street Bank and Trust Company (and its predecessors)
previously entered into a Welfare Benefits Trust effective January 1, 1997, as subsequently
amended (the "Prior Agreement"); and
WHEREAS, Customer wishes to have BNY Mellon act as the trustee of such trust, and
BNY Nlellon is willing to provide such services on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and intending to be legally bound, the Parties agree that the Prior Agreement is amended
and restated as follows.
1.DEFINITIONS
Whenever used in this Agreement, the following words have the meanings set forth below:
"Act" has the meaning set forth in Section 10.1(a)
"Affiliate" means, with respect to any entity, any other entity that directly or indirectly
controls, is controlled by or under common control with such entity.
"Agreement" means, collectively, this Welfare Trust Agreement, the Welfare Schedule
and any Exhibits hereto and any other documents incorporated herein by reference.
"Assets" means any assets acceptable to BNY Mellon, excluding any direct interest in
real property, leaseholds or mineral interests, which Customer may transfer to BNY
Mellon's care, to be held in trust in accordance with this Agreement.
"Authorized Person" has the meaning set forth in Section 3.1.
"BNY Mellon" has the meaning set forth in the introductory paragraph.
BNY MELLON AND CUSTOMER CONFIDENTIAL
"Cash" means the money and currency of any iurisdiction which BNY Mellon accepts for
deposit in the Fund.
"Code" means the lnternal Revenue Code of 1986, as amended.
"Confidential lnformation" means, with respect to a Party, the terms of this Agreement
and all non-public business and financial information of such Party (including, with respect
to Customer, information regarding the Fund and including, with respect to BNY Mellon,
informat,on regarding its practices and procedures related to the services provided
hereunder) disclosed to the other Party in connection with this Agreement.
"Customer" has the meaning set forth in the introductory paragraph. ln addition,
references to "Cuslomer" include reference to the Named Fiduciary if and to the extent
such Named Fiduciary is responsible for the applicable function under the Plan or ERISA.
"Data Terms Website"
http://www.bnymellon.com/products/assetservicing/vendoragreement.pdf or
successor website the address of which is provided by BNY Mellon to Customer
means
any
"Depository" means the Depository Trust Company, Euroclear, Clearstream Banking
S.A., the Canadian Depository System, CLS Bank and any other securities depository,
book-entry system or clearing agency authorized to act as a system for the central
handling of securities pursuant to the laws of the applicable jurisdiction, and any
successors to, and/or nominees of, any of the foregoing.
"Effective Date" has the meaning set forth in the introductory paragraph.
"Electronic Access Services" means such services made available by BNY Mellon or a
BNY Mellon Affiliate to Customer to electronically access information relating to the Fund
and/or transmit lnstructions.
"ERISA" means the Employee Retirement lncome Security Act of 1974, as amended
"Fund" means the account or accounts established pursuant to this Agreement to hold the
Assets of the Plan.
"lnstructions" means, with respect to this Agreement, instructions issued to BNY lvlellon
by way of (a) one of the following methods (each as and to the extent specified by BNY
Mellon as available for use in connection with the services hereunder): (i) the Electronic
Access Services; (ii) third-party electronic communication services containing, where
applicable, appropriate authorization codes, passwords or authentication keys, or
otherwise appearing on their face to have been transmitted by an Authorized Person or
(iii) third-party institutional trade matching utilities used to effect transactions in
accordance with such utility's customary procedures or (b) such other method as may be
agreed upon by the Parties and that appear on their face to have been transmitted by an
Authorized Person.
"lnvestment Manager" means an investment manager within the meaning of Section
3(38) of ERISA with respect to the Fund that has been appointed pursuant to Section
2.2(d).
2
BNY MELLON AND CUSTOMER CONFIDENTIAL
"Market Data Providers" means vendors and analytics providers and any other Person
providing Market Data to BNY Mellon.
"Named Fiduciary" means individually and collectively, as applicable, any entity,
committee or Person identified herein as Named Fiduciary or otherwise having the
authority to control and manage the operation and administration of the Plan or the power
to manage and control the assets of the Plan. The Named Fiduciary with authority to
appoint a trustee is Customer. The Named Fiduciary that is the administrator of the Plan
ls customer.
"Non-Fund Assets" has the meaning set forth in Section 17.1(b).
"Oral lnstructions" means, with respect to this Agreement, spoken instructions issued to
BNY Mellon and reasonably believed by BNY Mellon to be from an Authoflzed Person.
"Party" or "Parties" has the meaning set forth in the introductory paragraph.
"Person" or "Persons" means any entity or individual.
"Plan" has the meaning set forth in the Recitals
"Sanctions" means all economic sanctions laws, rules, regulations, executive orders and
requirements administered by any governmental authority of the United States (including
the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury) or
any other applicable domestic or foreign authority with jurisdiction over Customer.
"Securities" means all (a) debt and equity securities and (b) instruments representing
rights or interests therein, including rights to receive, subscribe to or purchase the
foregoing; in each case as may be agreed upon from time to time by BNY Mellon and
Customer and which are from time to time delivered to or received by BNY Mellon and/or
any Subcustodian for deposit in the Fund.
"Standard of Gare" has the meaning set forth in Section 14. 1.
"Subcustodian" means a bank or other financial institution (other than a Depository) that
is selected and used by BNY Mellon or a BNY Mellon Affiliate in connection with the
settlement of transactions and/or custody of Assets hereunder, and any successors to,
and/or nominees of, any of the foregoing.
"Tax Obligations" means taxes, withholding, certification and reporting requirements,
claims for exemptions or refund, interest, penalties, additions to tax and other related
expenses.
"Third Party Data" has the meaning set forth in Section 9.3(a).
"Trust" means the trust created by this Agreement, known as the PacifiCorp Union
Employees Welfare Benefits Trust.
3
"Market Oata" means pricing, valuations or other commercially sourced data applicable
to any Security. Market Data also includes security identifiers, bond ratings and
classification data.
BNY MELLON AND CUSTOMER CONFIDENTIAL
2
"Welfare Schedule" means the Welfare Schedule attached hereto that contains additional
provisions for welfare plans.
APPOINTMENT OF TRUSTEE; THE FUND
Appointment of Trustee
(a) The Trust is intended to comply with ERISA and to be tax-exempt under Section
501(cxg) of the Code.
(b) Customer hereby appoints BNY Mellon as trustee for the Assets and BNY Mellon
hereby accepts such appointment. The Parties acknowledge and agree that BNY
Mellon's duties pursuant to such appointment will be limited solely to those duties
expressly undertaken pursuant to this Agreement.
(c) Notwithstanding the foregoing, BNY Mellon has no obligation:
(i) With respect to any Assets until they are actually received and accepted by
BNY Mellon in the Fund;
(ii) To inquire into, make recommendations, supervise or determine the
suitability of any transactions affecting the Fund; or
(iii) To determine the adequacy of title to, orthe validity or genuineness of, any
Assels received by it or delivered by it pursuant to this Agreement.
(d) Cash held hereunder may be subject to additional deposit terms and conditions
issued by BNY Mellon or the applicable Subcustodian from time to time, including
rates of interest and deposit account access.
(e) lf Customer engages in securities lending activities, such activities will be subject
to certain additional and/or modified terms to be set forth in a separate written
agreement between Customer and BNY Mellon or a BNY Mellon Affiliate.
Contributions; Investment of the Fund
(a) BNY Mellon will accept contributions that are paid to it by Customer in accordance
with this Agreement. Such contributions will be in Cash or in such other form as
may be acceptable to BNY Mellon. BNY Mellon will have no duty to determine or
collect contributions under the Plan. Customer represents that a Named Fiduciary
(and not BNY Mellon) has the sole duty and responsibility for the determination of
the accuracy or sufficiency of the contributions to be made under the Plan, the
timely transmittal of the same to BNY Mellon and compliance with any statute,
regulation or rule applicable to contributions.
(b) BNY Mellon will return contributions made pursuant to subsection (a) above, if the
following conditions are satisfied:
(i) Contributions made by Customer based upon mistake of fact may be
returned to Customer within one year of such contribution.
2.',1
2.2
4
BNY MELLON AND CUSTOMER CONFIDENTIAL
(ii)The amount which may be returned is the excess of lhe amount contributed
over the amount that would have been contributed had there not been a
mistake. Earnings attrrbutable to excess contributions may not be returned
but losses attributable thereto must reduce the amount to be so returned.
Any return of contribution or distribution of assets made by BNY Mellon will
be made only upon lnstructions of Customer, which has exclusive
responsibility for determining whether the conditions of such return or
distribution have been satisfied and for the amount to be returned or
distributed.
(c)BNY Mellon may commingle the assets attributable to more than one Plan, and
may commingle the Fund with funds of other trusts of similar nature created by
Customer for the exclusive benefit of its employees. Where commingling is
effected with other trusts maintained by Customer, the combined trust, to the
extent that assels are attributable to contributions made under this Agreement, will
be the Fund referred to herein. BNY Mellon will maintain such records as are
necessary in orderto maintain a separation ofthe Fund from the funds ofthe other
trusts maintained by Customer and, if and to the extent directed by Customer, to
separate the assets attributable to each Plan. Customer will be responsible for
causing sufficient records to be maintained to ensure that benefits and liabilities
payable with respect to each Plan will be paid from the assets allocable to each
such Plan.
(d)Customer has the authority and responsibility to manage the assets of the Fund.
In carrying out this responsibility, Customer may appoint (and remove) one or more
Investment Managers, which may include BNY Mellon or a BNY Mellon Affiliate, if
and to the extent set forth in a separate agreement executed by BNY Mellon or
such Affiliate. BNY Mellon will not be responsible under this Agreement, directly
or indirectly, for the investment or reinvestment of the assets of the Fund. lf
Customer appoints an lnvestment Manager, BNY Mellon will place in a separate
subaccount those assets over which the lnvestment l/anager has discretion and
control.
2.3 Procedures for Segregation of Assets
Customer may, if it so determines, at any time designate any group or groups of the eligible
employees or other beneficiaries covered by the Plan as a separate class and may direct
BNY Mellon to segregate in a separate fund, to be held for the benefit of such class, the
part of the Fund allocable to such class as determined by Customer, or some lesser
amount than such allocable part if Customer will determine that other equitable provision
is made for the difference. Customer will cause BNY Mellon to effect such segregation by
providing lnstructions to BNY Mellon of Customer's determination, togethel with evidence
of appropriate action by the governing body directing such segregation. BNY lvlellon may
rely conclusively and without investigation upon any such notification of the determination
and evidence of appropriate action by the governing body and will segregate such assets
as Customer may direct. BNY Mellon's valuation of guch assets for that purpose will be
conclusive. BNY Mellon will hold all of the assets so segregated under this provision,
together with such payments as will thereafter be made to the Fund on behalf of such
class, and the income therefrom, as a subpart of the Fund and subject to the terms of this
Agreement, or will dispose of the same as directed by Customer. ln the event that the
5
BNY MELLON AND CUSTOMER CONFIDENTIAL
Fund or any subpart thereof created by this Agreement is terminated as to such class,
Customer will direct the disposition of the assets held by BNY Mellon for such class
through kansfer to a successor trustee or other means, as Customer determines, and
thereafter such employees and other beneficiaries will not have any rights in the Fund, or
against BNY Mellon.
3. AUTHORIZED PERSONS AND INSTRUCTIONS; ELECTRONIC ACCESS
3.1 Authorized Persons
Promptly following the Effective Date, Customer and/or its designee (including any of
Customer's lnvestment Managers) will furnish BNY lr,4ellon with one or more written lists
or other documentation acceptable to BNY N4ellon specifying the names and titles of, or
otherwise identifying, all Persons authorized to act on behalf of Customer with respect lo
this Agreement (each, an "Authorized Person"). Customer will be responsible for
keeping such lists and/or other documentation current, and will update such lists andior
other documentation, as necessary from time to time, pursuant to lnstructions.
3.2 lnstructions
(a) Except as otherwise expressly provided in this Agreement, BNY tvlellon will have
no obligation to take any action hereunder unless and until it receives lnstructions
issued in accordance with this Agreement.
(b)Customer will be responsible for ensuring that (i) only Authorized Persons issue
lnstructions to BNY Mellon and (ii) all Authorized Persons safeguard and treat with
extreme care any user and authorization codes, passwords and authentication
keys used in connection with the issuance of lnstructions.
(c)Where Customer may or is required to issue lnstructions, such lnstructions will be
issued by an Authorized Person. The Authorized Person (and not BNY Mellon)
will be responsible for determining that lnskuctions are in accordance with the
terms of the Plan and applicable law.
(d)BNY Mellon will be entitled to deal with any Authorized Person until notified
otherwise pursuant to Instructions, and will be entitled to act and rely upon any
lnstruction received by BNY Mellon.
(e)All lnstructions must include all information necessary, and must be delivered
using such methods and in such format as BNY Mellon may require and be
received within BNY fvlellon's established cut-off times and otherwise in sufficient
time, to enable BNY Mellon to act upon such lnstructions.
(f)BNY t\,4ellon may in its sole discretion decline to act upon any lnstructions that do
not comply with requirements set forth in Section 3.2(e) or that conflict with
applicable law or regulations or BNY Mellon's operating policies and practices, in
which event BNY Mellon will promptly notify Customer.
(s)Customer acknowledges that while it is not part of BNY Mellon's normal practices
and procedures to accept Oral lnstructrons, BNY Mellon may in certain limited
circumstances accept Oral lnstructions. ln such event, such Oral lnstructions will
6
BNY MELLON AND CUSTOMER CONFIDENTIAL
be deemed to be lnstructions for purposes of this Agreement. An Authorized
Person issuing such an Oral lnstruction will promptly confirm such Oral lnstruction
to BNY Mellon in writing. Notwithstanding the foregoing, Customer agrees that the
fact that such written confirmation is not received by BNY Mellon, or that such
written conflrmation contradicts the Oral lnstruction, will in no way affect (i) BNY
lvlellon's reliance on such Oral lnstruction or (ii) the validity or enforceability of
transactions authorized by such Oral lnstruction and effected by BNY Mellon.
(h)Customer acknowledges and agrees that it is fully informed of the protections and
risks associated with the various methods of transmitting lnstructions to BNY
Mellon and that there may be more secure methods of transmitting lnstructions
than the method selected by the sender. Customer agrees that the security
procedures, if any, to be followed by Customer and BNY tr4ellon with respect to the
transmission and authentication of lnstructions provide to Customer a
commercially reasonable degree of protection in light of the Fund's particular
needs and circumstances.
3.3 BNY Mellon Actions Without lnstructions
Notwithstanding anything to the contrary set forth in this Agreement, Customer hereby
authorizes BNY Mellon, without lnstructions, to take any administrative or ministerial
actions with respect to the Fund that it deems reasonably necessary or appropriate to
perform its obligations under this Agreement, including the following:
(a) Receive income and other payments due to the Fund; provided, however, that BNY
Mellon will have no duty to pursue collection of any amount due to the Fund,
including for Securities in default, if such amount is not paid when due;
(b) Carry out any exchanges of Securities or other corporate actions not requiring
discretionary decisions;
(c)Facilitate access by Customer or its designee to ballots or online systems to assist
it in the voting of proxies received by BNY lr/ellon (in its capacity as custodian) for
eligible positions of Securities held in the Fund (excluding bankruptcy matters), all
of which will be exercised by Customer or its designee and not by BNY Mellon;
(d)Forward to Customer or its designee information (or summaries of information) that
BNY Mellon receives (in its capacity as custodian) from Depositories or
Subcustodians concerning Securities in the Fund (excluding bankruptcy matters);
(e)Forward to Customer or its designee an initial notice of bankruptcy cases relating
to Securities held in the Fund and a notice of any required action related to such
bankruptcy cases as may be received by BNY Mellon (in its capacity as custodian).
BNY Mellon will take no further action nor provide further notification related to the
bankruptcy case;
(f)Unless otherwise elected by Customer, and in accordance with BNY Mellon's
standard terms and conditions, provide class action filing services for settled
claims related to Securities with industry recognized identiflers;
7
BNY MELLON AND CUSTOMER CONFIDENTIAL
Endorse for collection checks, drafts or other negotiable instruments received on
behalf of the Fund;
Deposit Cash in accounts bearing interest at a reasonable rate in the banking
department of BNY N4ellon or an affiliated banking organization; and
(s)
(h)
(i)Execute and deliver, solely in its capacity as custodian, cerliflcates, documents or
instruments incidental to BNY Mellon's performance under this Agreement.
3.4 Funds Transfers
With respect to each lnstruction for a Cash transfer, when the Instruction is to credit or
pay a party by both a name and a unique numeric or alpha-numeric identifier (e.9., IBAN
or ABA or account number), BNY Mellon and any other bank participating in the Cash
transfer will be entitled to rely solely on such numeric or alpha-numeric identifier, even if it
identifies a party different from the party named. Such reliance on an identifler will apply
to beneflciaries named in the lnstruction, as well as any financial institution that is
designated in the lnstruction to act as an intermediary in such Cash transfer. To the extent
permitted by applicable law, the parties will be bound by the rules of any transfer system
used to effect a Cash transfer under this Agreement.
3.5 Electronic Access
lf Customer elects to use the Electronic Access Services in connection with this
Agreement, the use thereof will be subject to any terms and conditions contained in a
separate written agreement between lhe Parties or their Affiliates. lf an Authorized Person
elects, with BNY Mellon's prior consent, to transmit lnstructions through a third-party
electronic communications service, BNY Mellon will not be responsible or liable for the
reliability or availability of any such service.
4. SUBCUSTODIANS, DEPOSITORIES AND AGENTS
4.1 Use of Subcustodians and Depositories
(a) BNY Mellon will be entitled to utilize Subcustodians and Depositories in connection
with its performance hereunder.
(b)BNY Mellon will only utilize Subcustodians that have entered into an agreement
with BNY Mellon or a BNY Mellon Affiliate, and Assets held through a
Subcustodian will be held subject to the terms and conditions of such
Subcustodian's respective agreement.
(c)Assets deposited in a Depository will be held subject to the rules, procedures,
terms and conditions of such Depository. Subcustodians may hold Assets in
Depositories in which such Subcustodians participate.
(d)Unless otherwise required by local law or practice or a particular Subcustodian
agreement, Assets deposited with Subcustodians or Depositories may be held in
a commingled account in the name of, as applicable, BNY lvlellon, a BNY lvlellon
Affiliate or the applicable Subcustodian, for its clients.
I
4.2
BNY MELLON AND CUSTOMER CONFIDENTIAL
4.3
Liability for Subcustodians
(a) BNY Mellon will exercise the Standard of Care described in clause (a) of the first
sentence of Section 14.1 in selecting, retaining and monitoring Subcustodians.
(b) With respect to Assets held by a Subcustodian, BNY Mellon will be liable to
Customer for the activities of such Subcustodian under this Agreement to the
extent that BNY Mellon would have been liable to Customer under this Agreemenl
if BNY Mellon had performed such activities itself in the relevant market in whrch
such Subcustodian is located; provided, however, that with respect to Securities
held by a Subcustodian that is not a BNY Mellon Affiliate:
(i) BNY Mellon's liability will be limited solely to the extent resulting directly
from BNY Mellon's failure to exercise the Standard of Care described in
clause (a) of the first sentence in Section 14.1 in selecting, retaining and
monitoring such Subcustodian; and
(ii) To the extent that BNY Mellon is not liable pursuant to Section 4.2(bxi),
BNY Mellon's sole responsibility to Customer will be to: (A) take reasonable
and appropriate action to recoverfrom such Subcustodian, and (B) forward
to the Trust any amounls so recovered (exclusive of costs and expenses
incurred by BNY Mellon in connection therewith).
Liability for Depositories
BNY Mellon will have no responsibility or liability for the activities of any Depository arising
out of or relating to this Agreement or any cost or burden imposed on the transfer or
holding of Assets held with such Depository.
Use of Agents
BNY Mellon may appoint agents, including BNY Mellon Affiliates, on such terms and
conditions as it deems appropriate to perform its obligations hereunder. Except as
otherwise specifically provided herein, no such appointment will discharge BNY Mellon
from its obligations hereunder.
CORPORATE ACTIONS
Notification
BNY Mellon will notify Customer or its designee of rights or discretionary corporate actions
as promptly as practicable under the circumstances, provided that BNY Mellon has
actually received, in its capacity as custodian, notice of such right or discretionary
corporate action from the relevant issuer, or from a Subcustodian, Depository or third party
vendor. Without actual receipt of such notice by BNY Mellon, BNY Mellon will have no
responsibility or liability for failing to so notify Customer,
Exercise of Rights
Whenever there are voluntary rights that may be exercised or alternate courses of action
that may be taken with respect to Securities in the Fund, Customer or rts designee will be
4.4
5
5.1
5.2
o
BNY MELLON AND CUSTOMER CONFIDENTIAL
5.3 Partial Redemptions, Payments, Etc.
BNY N/ellon wall advise Customer or its designee upon its notification, in its capacity as
custodian, of a partial redemption, partial payment or other action with respect to a
Security affecting fewer than all such Securities held within the Fund. lf BNY N/ellon or
any Subcustodian or Depository holds any Securities affected by one of the events
described, BNY Mellon or such Subcustodian or 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.
6.SETTLEMENT
6.1 Settlementlnstructions
Promptly after the execution of each Securities transaction, Customer will issue to BNY
Mellon lnstructions to settle such transaction. Unless otherwise agreed by BNY Mellon
and subject to Section 8.1 , Assets will be credited to the Fund only when actually received
by BNY lvlellon.
6.2 Settlement Funds
For the purpose of settling a Securilies transaction, Customer will provide BNY Mellon
with sufficient immediately available funds or Securities, as applicable, by such time and
date as is required to enable BNY Mellon to settle such transaction in the country of
settlement and in the currency to be used to settle such transaction.
6.3 SettlementPractices
Securities transactions will be settled using practices customary in the iurisdiction or
market where the transaction occurs, which may include the delivery of Securities or Cash
to a counterparty or its agenls against, as applicable, the receipt of Securities or Cash in
the future. Customer assumes, on behalf of the Trust, full responsibility for all risks
involved in connection with BNY Mellon's delivery of Securities or Cash in accordance
with such practices.
7.TAX MATTERS
7.1 Tax Obligations
To the extent that BNY Mellon has received relevant and necessary information with
respect to the Fund, BNY ftIellon will perform the following services with respect to Tax
Obligations:
10
responsible for making any decisions relating thereto and for instructing BNY Nlellon to
act. ln order for BNY Mellon to act, Customer must issue lnstructions either: (a) using the
BNY Mellon-generated form provided along with BNY lvlellon's notice under Section 5.1
or (b) if Customer is not using such BNY Mellon-generated form, clearly indicating, by
reference to the options provided on such BNY Mellon-generated form, which action
Customer is electing. Each such lnstruction will be addressed as BNY Mellon may from
time to time request and issued by such time as BNY Mellon will advise Customer or its
designee.
BNY MELLON AND CUSTOMER CONFIOENTIAL
(a)BNY Mellon (or the applicable Subcustodian) will apply, withhold and report
appropriate amounts as BNY Mellon (in its capacity as custodian) or the applicable
Subcustodian (in its capacity as Subcustodian) is required to do under the relevant
source country tax laws, and is authorized to debit the Fund in the amount of a Tax
Obligation withheld and to pay such amount to the appropriate taxing authority,
(b)BNY Mellon will, where appropriate and upon receipt of sufficient information,
pursue claims for tax relief where (i) either a lax treaty or a source country's
domestic tax laws provide for favorable tax treatment with respect to an Asset as
a result of the Trust's status as a specific type of investor and/or residency status
and (ii) the source country's tax authorities have outlined the requirements and
qualification criteria required to obtain such relief,
(c)BNY N4ellon will foruard to Customer or its designee information regarding Tax
Obligations applicable to Customer that BNY Mellon receives in its capacity as
custodian from third parties and that BNY Mellon reasonably believes would be
useful to Customer or its designee in the submission of any reports or returns with
respect to Tax Obligations.
(d)BNY Nlellon offers certain tax services pursuant to a separate tax service and fee
agreement. Except to the extent Customer enters into a separate tax service and
fee agreement with BNY Mellon specifying tax services related to the following
matters to be performed by BNY l/ellon, Customer assumes all responsibility for,
and will perform all matters related to (i) the completion and filing of all required
U.S. Federal income tax returns for the Trust and/or the required U.S. Federal
informational relurns for tax exempt trusts and (ii) all state tax compliance
obligations with respect to the Trust, in each case including those Tax Obligations
that may be imposed on BNY Mellon under any law,
(e)BNY Mellon will only be responsible for performing, and will only perform, the
obligations of BNY Mellon that are expressly set forth in this Section 7.1 and such
other tax services (which may include non-income tax related services) that are
expressly agreed upon by BNY l/ellon and Customer pursuant to a separate tax
service and fee agreement, if any.
(0 BNY Mellon may consult with and rely upon Customer in matlers pertaining to Tax
Obligations. Customer will provide and/or will cause its Authorized Persons to
provide information necessary for BNY l\4ellon to fulfill any obligations it may have
hereunder or under any separate tax services agreement with respect to Tax
Obligations in a timely manner.
7.2 Responsibility for Taxes
Customer will be responsible and liable for all Tax Obligations with respect to any Assets
held on behalf of Customer and any transaction related thereto. Customer acknowledges
and agrees that BNY Mellon and its Affiliates are not tax advisers and will not under any
circumslances provide tax advice to Customer. Customer will obtain its own independent
tax advice for any tax-related matters,
11
BNY MELLON AND CUSTOMER CONFIDENTIAL
7 .3 Payments
Where BNY l\/ellon receives lnstructions to make distributions or transfers out of the Fund
in order to pay Customer's third party service providers, Customer acknowledges that in
making such payments BNY Nilellon is acting in an administrative or ministerial capacity,
and not as the payor, for tax information reporting and withholding purposes.
8. CREDITS AND ADVANCES
8.1 Contractual Settlement and lncome
BNY Mellon may, in its sole discretion, as a matter of bookkeeping convenience, credit
the Fund with the proceeds resulting from the purchase, sale, redemption or other delivery
or receipt of Securities, or interest, dividends or other distributions payable on Securities,
or any foreign exchange transaction effected in connection with this Agreement, prior to
its actual receipt thereof. All such credits will be conditional until BNY Mellon's actual
receipt of such proceeds and may be reversed by BNY Mellon to the extent that such
proceeds are not received. Actual receipt of proceeds with respect to a transaction will
not be deemed to have occurred, and the transaction will not be considered final, until
BNY lvlellon has received sufficient immediately available funds or Securities specifically
applicable to such transaction that, under applicable local law, rule or practice, are
irreversible and not subject to any security interest, levy or other encumbrance.
8.2 Advances
lf BNY Mellon receives an lnstruction that, if processed, would result in an overdraft in the
Fund, BNY Mellon may, in its sole discretion, advance funds in any currency hereunder.
8.3 Repayment
lf: (a) BNY fvlellon has advanced funds to the Fund; (b) an overdraft has occurred in the
Fund (including overdrafts incurred in connection with the settlement of securities
transactions, funds transfers or foreign exchange transactions) or (c) the Trust is for any
other reason indebted to BNY Nilellon, Customer on behalf of the Trust agrees to repay
BNY fuellon (on demand or upon becoming aware thereof) the amount of such advance,
overdraft or indebtedness, plus accrued interest at a rate then charged by BNY Mellon to
its institutional custody clients in the relevant currency.
8.4 Securing Repayment
ln order to secure repayment of the Trust's obligations and liabilities (whether or not
matured) to BNY Mellon or any BNY Mellon Affiliate, arising under or related to this
Agreement, and without limiting BNY Mellon's or such BNY Mellon Afflliate's rights under
applicable law or any other agreement, Customer on behalf of the Trust hereby pledges
and grants to BNY Mellon and such BNY Mellon Affiliate, and agrees BNY Mellon and
such BNY Mellon Affiliate will have to the maximum extent permitted by law, a continuing
first lien and security interest in all of the Plan's and the Trust's right, title and interest in
and to the Fund and the Assets now or hereafter held in the Fund (including proceeds
thereof); provided that Customer does not hereby grant a security interest in any Securities
issued by an affiliate (as defined in Section 23A of the U.S. Federal Reserve Act) of BNY
12
BNY MELLON AND CUSTOi,]ER CONFIDENTIAL
Mellon. Customer represents, warrants and covenants that the Trust owns the Assets in
the Fund free and clear of all liens, claims and security interests (except as otherwise
acknowledged in writing by BNY Mellon), and that the flrst lien and security interest
granted herein will be subject to no setoffs, counterclaims or other liens prior to or on a
parity with it in favor of any third party (other than speciflc liens granted preferred status
by statute). Customer will take any additional steps required to assure BNY Mellon of
such priority security interest, including notifying third parties or obtaining their consent.
BNY N4ellon will be entitled to collect from the Fund sufficient Cash for reimbursement,
and if such Cash is insufficient, to sell Securities to the extent necessary to obtain
reimbursement. ln this regard, BNY Mellon will be entitled to all the rights and remedies
of a pledgee, secured creditor and/or securities intermediary under applicable laws, rules
and regulations as then in effect as if the Trust is in default.
9. STATEMENTS; BOOKS AND RECORDS; THIRD PARTY DATA
9.1 Statements
BNY Mellon will make available to Customer, through the Electronic Access Services or
such other method as may be agreed upon by the Parties, a monthly statement reflecting
all transfers to or from the Fund during such month and all holdings in the Fund as of the
last business day of such month. Customer will promptly review each such statement
and, within ninety (90) days of when such statement is made available by BNY Mellon,
notify BNY Mellon of any exception or objection thereto. Notwithstanding the foregoing,
Customer may notify BNY Mellon of any such exceptions or objections at any time;
provided, however, that BNY Mellon will not be responsible or liable for any losses
reasonably evident from review of such statement that could have been mitigated had
such notice been provided during such ninety (90) day period.
9.2 Books and Records
BNY Mellon will identify on its books and records the Assets belonging to the Fund,
whether held directly or indirectly through Subcustodians or Depositories. Securities held
in the Fund will be held in registered form in the name of BNY lvlellon or one of its nominees
and will be segregated on BNY Mellon's books and records from BNY Mellon's own
property. Customer and its authorized representatives will have the right, at Customer's
own expense and with reasonable prior written notice to BNY Mellon, to have reasonable
access to those books and records directly pertaining to the Fund. Any such access will
occur during BNY Mellon's normal business hours and will be subject to BNY Mellon's
applicable security policies and procedures.
9.3 Third Party Data
(a) Customer acknowledges that BNY Mellon will be receiving, utilizing and relying on
Market Data and other data provided by Customer and/or by third parties in
connection with its performance of the services hereunder (collectively, "Third
Party Data"). BNY Mellon is entitled to rely without inquiry on all Third Party Data
provided to BNY Mellon hereunder (and all lnstructions related to Third Party
Data), and BNY n/ellon makes no assuTances or warranties in relation to the
accuracy or completeness of Third Party Data and will not be responsible or liable
for any losses or damages incurred as a result of any Third Party Data that is
13
BNY MELLON AND CUSTOMER CONFIOENTIAL
inaccurate or incomplete. BNY Mellon may follow lnstructions with respect to Third
Party Data, even if such lnstructions direct BNY Mellon to override its usual
procedures and data sources or if BNY Mellon, in performing services for itself or
others (including services similar to those performed for Customer), receives
different Third Party Data for the same or similar Securities.
(b)To the extent that BNY Nlellon provides values of, and pricing information in
relation to, Securities, Customer acknowledges and agrees that:
(i) BNY Mellon is authorized to use generally recognized pricing services
including Market Data Providers, brokers, dealers and other market
makers. ln the event that such pricing services are unable to provide a
value of or pricing information in respect of Securities and BNY Mellon
provides values and pricing information, BNY Mellon will so advise
Customer, but will have no other responsibility or liability in respect of such
valuation or pricing information;
(ii)Certain pricing or valuation information may be based on calculated
amounts rather than actual market transactions and may not reflect actual
market values, and the variance between such calculated amounts and
actual market values may be material;
(iii)Certain third party service providers may not permit Customer's directed
price to be used, which may result in differences between third party
service provider reports and custodial reports;
(iv)Performance measurement and analytic services may use drfferent data
sources than those used by BNY Mellon to provide Market Data for the
Fund, which may result in differences between custodial reports and
performance measurement and analytic reports; and
(v)BNY Mellon may require Customer to execute supplemental
documentation prior to providing pricing for certain Securities.
(c)Certain Market Data may be the intellectual property of Market Data Providers,
which impose additional terms and conditions upon Customer's use of such Market
Data. Such additional terms and conditions can be found on the Data Terms
Website. Customer agrees to those terms and conditions as they are posted on
the Data Terms Website from time to time.
DISCLOSU RES
Required Disclosure
(a) With respect to Securities that are registered under the U.S. Securities Exchange
Act of 1934, as amended, orthat are issued by an issuer registered underthe U.S.
lnvestment Company Act of 1940, as amended, the U.S. Shareholder
Communicalions Act of 1985 (the "Act") requires BNY lvlellon to disclose to issuers
of such Securities, upon their request, the name, address and securities position
of BNY Mellon's clients who are "beneficial owners" (as defined in the Act) of the
14
10.
10.1
BNY MELLON AND CUSTOMER CONFIDENTIAL
(b)
issuer's Securities, unless the beneficial owner objects to such disclosure. The
Act defines a "beneficial owner" as any person who has or shares the power to
vote a security (pursuant to an agreement or otherwise) or who directs the voting
of a security. Customer has designated on the signature page hereof whether (i)
as beneficial owner, it objects to the disclosure of its name, address and securities
position to any U.S. issuer that requests such information pursuant to the Act for
the specific purpose of direct communications between such issuer and Customer
or (ii) it requires BNY Mellon to contact the lnvestment lvlanager with respect to
relevant Securities to make the decision as to whether it objects to the disclosure
of the beneficaal owner's name, address and securities position to any U.S. issuer
that requests such information pursuant to the Act.
With respect to certain Securities issued outside the United States, BNY Mellon
may disclose information to issuers of Securities as required by the organizational
documents of the relevant issuer or in accordance with local market practice.
(c)ln connection with any disclosure contemplated by this Section 10.1, Customer
agrees to supply BNY Mellon with any required information.
10.2 ForeignExchangeTransactions
ln connection with this Agreement, Customer may enter into foreign exchange
transactions (including foreign exchange hedging transactions) with BNY Mellon or a BNY
Mellon Affiliate acting as a principal or otherwise through customary channels. Customer
may issue standing lnstructions with respect to any such foreign exchange transactions,
subject to any rules or limitations that may apply to any foreign exchange facility made
available to the Fund. With respect to any such foreign exchange transactions, BNY
Mellon or such BNY Mellon Affiliate is acting as a principal counterparty on its own behalf
and is not acting as a fiduciary or agent for, or on behalf of, Customer, its lnvestment
Manager or the Trust. Any such foreign exchange transactions will be governed by the
relevant master netting agreement (e.9., an ISDA Master Agreement) in place between
Customer and BNY fvlellon or such BNY lvlellon Affiliate, and such transactions will be
secured by the Fund and the Assets therein pursuant to Section 8.4, ln the event there is
no such master netting agreement in place and Customer fails to settle or otheMise meet
its obligations in respect of such foreign exchange transactions, BNY Mellon has the right
to net all such outstanding foreign exchange lransactions between the Trust and BNY
Mellon or such BNY Mellon Affiliate for the purpose of ascertaining a single net obligation
between the Trust and BNY Mellon, and to the extent such obligation is owed by the Trust
to BNY Mellon or a BNY Mellon Affiliate, such obligation will be secured by the Fund and
the Assets therein pursuant to Section 8.4.
10.3 lnvestment of Cash
In connection with this Agreement, Customer may issue standing lnstructions to invest
Cash in one or more sweep investment vehicles. Such investment vehicles may be
offered by a BNY Mellon Affiliate or by a client of BNY [r,'lellon, and BNY Mellon may
receive compensation therefrom. By making investment vehicles available, BNY lVlellon
and its Affiliates will not be deemed to have recommended, endorsed or guaranteed any
such investment vehicle in any way or otherwise to have acted as a fiduciary or agent for,
or on behalf of, Customer, any Named Fiduciary, any lnvestment Manager or the Fund.
15
BNY MELLON ANO CUSTOMER CONFIDENTIAL
BNY Mellon will have no liability for any loss incurred on any such investments. Customer
understands that Cash may be uninvested if it is received or reconciled to an account in
the Fund after the applicable deadline to be swept into the selected investment vehicle.
11.
11.1
REGULATORY MATTERS
USA PATRIOT Act
Section 326 of the U.S. Uniting and Strengthening America by Providing Appropriate Tools
Required to lntercept and Obstruct Terrorism Act of 2001 (including its implementing
regulations) requires BNY Mellon to implement a customer identification program pursuant
to which BNY Mellon must obtain certain information from Customer in order to verify
Customer's identity prior to establishing an account. Accordingly, prior to establishing the
Fund, Customer will be required to provide BNY Mellon with certain information, including
Customer's name, physical address, tax identiflcation number and other pertinent
identifying information, to enable BNY Mellon to verify Customer's identity. Customer
acknowledges that BNY Mellon cannot establish an account unless and until BNY Mellon
has successfully performed such verification.
11.2 Sanctions
(a) Throughout the term of this Agreement, Customer: (i) will have in place and will
implement policies and procedures designed to prevent violations of Sanctions,
including measures to accomplish effective and timely scanning of all relevant data
with respect to incoming or outgoing Assets or transactions relating to this
Agreement; (ii) will ensure that neither Customer nor any of its Affiliates, directors,
officers or employees 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) will not, directly or indirectly, use the Fund in any manner that
would result in a violation by Customer or BNY Mellon of Sanctions.
(b)Customer will promptly provide to BNY Mellon such information as BNY Mellon
reasonably requests in connection with the matters referenced in this Section 11.2,
including information regarding the Fund, the Assets and the source thereof, and
the identity of any individual or entity having or claiming an interest therein- BNY
Mellon may decline to act or provide services in respect ofthe Fund, and take such
other actions as il, in its reasonable discretion, deems necessary or advisable, in
connection with the matters referenced in this Section 11.2. lf BNY Mellon
declines to act or provide services as provided in the preceding sentence, except
as otherwise prohibited by applicable law or official request, BNY Mellon will inform
Customer as soon as reasonably practicable.
11.3 Express Authorization for ERISA Purposes
Without limiting the generality of Section 3.2 (lnstructions), which generally permits any
actions by BNY Mellon hereunder pursuant to lnstructions, BNY Mellon is expressly
authorized to, in the administration ofthe Fund pursuant to lnstructions, settle investments
in any collective investment fund, including a collective investment fund maintarned by
BNY Mellon or a BNY Mellon Affiliate and to appoint agents and sub-trustees. To the
16
BNY MELLON AND CUSTOII'IER CONFIDENTIAL
extent that any investment is made in any such collective investment fund, the terms of
the collective trust indenture will solely govern the investment duties, responsibilities and
powers of the trustee of such collective investment fund and such terms, responsibilities
and powers will be incorporated herein by reference and will be a part of this Agreement.
For purposes of valuation, the value of the interest maintained by the Fund in such
collective investment fund will be the fair market value of the collective investment fund
units held, determined in accordance with generally recognized valuation procedures.
Customer understands and agrees thal any such collective investment fund may provide
for the lending of its securities by the collective investment fund trustee and that such
collective investment fund trustee will receive compensation for the lending of securitres
that is separate from any compensation of BNY Mellon hereunder, or any compensation
of the collective investment fund trustee for the management of such fund. BNY Mellon
is authorized to invest in a collective fund which invests in The Bank of New York Mellon
Corporation stock in accordance with the terms and conditions ofthe Department of Labor
Prohibited Transaction Exemption 95-56 (the "Exemption") granted to Mellon Bank, N.A.
and its affiliates and to use a cross-trading program in accordance with the Exemption.
Customer acknowledges receipt of the notice entitled "Cross-Trading lnformation," a copy
of which is attached as Exhibit A.
COMPENSATION
Fees and Expenses
ln consideration of BNY Mellon's services provided hereunder, BNY Mellon will be (a) paid
the fees set forth in the agreed upon fee schedule (as such fee schedule may be amended
by BNY Mellon from time to time upon 45 days' prior written notice to Customer) and
(b) reimbursed for any out-of-pocket and incrdental expenses incurred by BNY Mellon in
connection therewith. Unless otheMise agreed by the Parties, such amounts will be
payable to BNY Mellon within 45 days of Customer's receipt of the relevant invoice.
Without limiting BNY Mellon's other rights set forth ln this Agreement, BNY Mellon may
charge interest on overdue amounts at a rate then charged by BNY Mellon to its
institutional trust clients in the relevant currency. BNY Mellon is authorized to charge and
collect from the Fund its fees and expenses unless such fees and expenses are paid
directly by Customer.
12.2 OtherCompensation
Customer acknowledges that, as part of BNY Mellon's compensation, BNY Mellon will
earn interest on Cash balances held by BNY Mellon (including disbursement balances,
balances arising from purchase and sale transactions and when Cash otherwise remains
uninvested) as provided in BNY Mellon's compensation disclosures.
REPRESENTATIONS, WARRANTIES AND COVENANTS13.
13.1 BNY Mellon
BNY Mellon represents and warranls that: (a) it is duly organized, validly existing and in
good standing in its jurisdiction of organization; (b) it has the requisite corporate power
and authority to enter into and to carry out the transactions contemplated by this
17
12.
12.1
13.2 Customer
(a) Customer represents and warrants that: (i) it is duly organized, validly existing and
in good standing in its jurisdiction of organization; (ii) it has the requisite corporate
power and authority to enler into and to carry out the transactions contemplated
by this Agreement and (iii) the individual executing this Agreement on its behalf
has the requisite authority to bind Customer to this Agreement.
(b)Customer represents and warrants that either: (i) it is the Named Fiduciary with
authority to appoint a trustee under ERISA and the Plan or (ii) the Named Fiduciary
with the authority to appoint a trustee under ERISA and the Plan is identified in the
definition of Named Fiduciary and Customer is acting on behalf of and has
authority to bind the Named Fiduciary to this Agreement.
(c)Customer represents that rt maintains and follows procedures to avoid any non-
exempt "prohibited transaction" as defined in Section 406 of ERISA.
14.
14.1
LIABILITY
Standard of Care
BNY Mellon will discharge its duties under this Agreement (a) with the standard of care
and diligence that a professional custodian would observe in these affairs taking into
account the prevarling rules, practices, procedures and circumstances in the relevant
market and (b) to the extent applicable to BNY Mellon's duties, with the care and skill
required under ERISA (as applicable, the "Standard of Care"), Exhibit B to this
Agreement sets forth BNY Mellon's statement of fiduciary status.
14.2 Limitation of Liability
(a) BNY Mellon's liability arising out of or relating to this Agreement will be limited
solely to those direct damages that are caused by BNY Mellon's failure to perform
its obligations under this Agreement in accordance with the Standard of Care. ln
no event will BNY Mellon be liable for any indirect, incidental, consequential,
exemplary, punitive or special losses or damages, or for any loss of revenues,
profits or business opportunity, arising out of or relating to this Agreement (whether
or not foreseeable and even if BNY Mellon has been advised of the possibility of
such losses or damages).
(b)BNY Mellon is not a party to, and has no dutles or responsibilities under, the Plan
other than those that may be expressly contained in this Agreement. Customer
acknowledges that the Plan does not impose any duties on BNY Mellon other than
those contained in this Agreement.
(c)The duties of BNY Mellon are limited to the Fund, and BNY Mellon has no duties
with respect to assets held by any other Person including any other trustee for the
Plan. Customer agrees that BNY Mellon will not serve as, and will not be deemed
18
BNY MELLON ANO CUSTOMER CONFIDENTIAL
Agreement and (c) the individual executing this Agreement on its behalf has the requisite
authority to bind BNY Mellon to this Agreement.
BNY MELLON AND CUSTOMER CONFIOENTIAL
(d)
lo be, a co-trustee under any circumstances, including any circumstances under
which BNY lvlellon continues to hold Assets under Section 16.5.
Notwithstanding anything to the contrary set forth in this Agreement, in no event
will BNY Mellon be liable for any losses or damages arising out of any of the
following:
(i) Customer's or an Authorized Person's decision to invest in or hold Assets
in any particular country, including any losses or damages arising out of or
relating to: (A) the financial infrastructure of a country; (B) a country's
prevailing custody and settlement practices; (C) nationalization,
expropriation or other governmental actions; (D) a country's regulation of
the banking or securities industry; (E) currency and exchange controls,
restrictions, devaluations, redenominations, fluctuations or asset freezes;
(F) laws, rules, regulations or orders that at any time prohibit or impose
burdens or costs on the transfer of Assets to, by or for the Fund or
(G) market conditions which affect the orderly execution of securlties
transactions or affect the value of securitiesi
(ii) BNY Mellon's reliance on lnstructions;
(iii) BNY lvlellon's receipt or acceptance of fraudulent, forged or invalid
Securities (or Securities which are otherwise nol freely transferable or
defiverable without encumbrance in any relevant market);
(iv) For any matter with respect to which BNY Mellon is required to act only
upon the receipt of lnstructions, (A) BNY Mellon's failure to act in the
absence of such lnstructions or (B) lnstructions that are late or incomplete
or do not otherwise satisfy the requirements of Section 3.2(e), whether or
not BNY Mellon acted upon such lnstructions;
(v) BNY Mellon receiving or transmitting any data to or from Customer or any
Authorized Person via any non-secure method of transmission or
communication selected by Customer;
(vi) Customer's or an Authorized Person's decision to invest in Securities or to
hold Cash in any currency; or
(vii) The insolvency of any Person, including a Subcustodian that is not a BNY
Mellon Affiliate, Depository, broker, bank or a counterparty to the
settlement of a transaction or to a foreign exchange transaction, except as
provided in Section 4.2.
lf BNY N/ellon is in doubt as to any action it should or should not take, either
pursuant to, or in the absence of, lnstructions, BNY Mellon may obtain the advice
of either reputable counsel of its own choosing or counsel to Customer, and BNY
Mellon will not be liable for acting in accordance with such advice.
(e)
19
BNY MELLON AND CUSTOMER CONFIOENTIAL
14.3 Force Majeure
BNY Mellon will not be responsible or liable for any failure or delay in the performance of
its obligations under this Agreement to the extent caused, directly or indirectly, by any
event beyond its reasonable control, including acts of God, strikes or other labor disputes,
work stoppages, acts of war, terrorism, general civil unrest, governmental or military
actions, legal constraint or the interruption, loss or malfunction of utilities or
communications or computer systems. BNY Mellon will promptly notify Customer upon
the occurrence of any such event and will use commercially reasonable efforts to minimize
its effect,
14.4 lndemnification
Customer and, except to the extent prohibited by applicable law, the Trust will jointly and
severally indemnify and hold harmless BNY Mellon from and against all losses, costs,
expenses, damages and liabilities (including reasonable counsel fees and expenses)
incurred by BNY Mellon, and will defend BNY Mellon against any third party claim, in each
case arising out of or relating to BNY Mellon's performance under this Agreement, except
to the extent resulting from BNY Mellon's failure to perform its obligations under this
Agreement in accordance with the Standard of Care. The Parties agree that the foregoing
will include reasonable counsel fees and expenses incurred by BNY Mellon in connection
with its successful defense of claims asserted by Customer or relating to BNY Mellon's
performance under this Agreement. BNY Mellon will indemnify and hold harmless
Customer and the Trust from and against all losses, costs, expenses, damages and
liabilities (including reasonable counsel fees and expenses) incurred by Customer and/or
the Trust, and will defend them against any third party claim, in each case arising out of
BNY Mellon's failure to perform its obligations under this Agreement in accordance with
the Standard of Care.
CONFIDENTIALITY15.
15.1 Confidentiality Obligations
Each Party agrees to use the Confidential Information of the other Party solely to
accomplish the purposes of this Agreement and, except in connection with such purposes
or as otherwise permrtted herein, not to disclose such information to any other Person
without the prior written consent of the other Party. Notwithstanding the foregoing, BNY
Mellon may: (a) use Customer's Confidential lnformation in connection with certain
functions performed on a centralized basis by BNY Mellon, its Affiliates and joint ventures
and their service providers (including audit, accounting, risk, legal, compliance, sales,
administration, product communication, relationship management, compilation and
analysis of customer-related data and storage); (b) disclose such information to its
Affiliates and joint ventures and to its and their service providers who are subject to
confidentiality obligations and (c) store lhe names and business contact information of
Customer's employees and representatives relating to this Agreement on the systems or
in the records of its Affiliates and joint ventures and its and their service providers. ln
addition, BNY Mellon may aggregate information regarding Customer and the Fund on an
anonymized basis with other similar client data for BNY Mellon's and its Affiliates'
reporting, research, product development and distribution, and marketing purposes.
20
16.
16.1
BNY MELLON AND CUSTOMER CONFIOENTIAL
15.2 Exceptions
TERM AND TERMINATION
Term
The term of this Agreement will commence on the Effective Date and will continue in effect
until terminated in accordance with the provisions herein.
16.2 Removal or Resignation
BNY Mellon may be removed with respect to all or part of the Fund upon receipt of 60
days'written notice (unless a shorter or longer period is agreed upon) from Customer.
BNY Mellon may resign as trustee hereunder upon 120 days' written notice (unless a
shorter or longer period is agreed upon)delivered to Customer.
16.3 Effect of Removal or Resignation
ln the event of such removal or resignation, a successor trustee will be appointed and
BNY Mellon will transfer the Fund, less such amounts as may be reasonable and
necessary to cover its compensation and expenses, to the successor trustee. lntheevent
Customer fails to appoint a successor trustee within 120 days of receipt of written notice
of resignation or removal, BNY Mellon reserves the right to seek the appointment of a
successor trustee from a court of competent jurisdiction. This Agreement will termrnate
after a successor trustee has accepted its duties and BNY Mellon has transferred all
Assets then held by BNY Mellon to the successor trustee. BNY Mellon will have no duties,
responsibilities or liability with respect to the acts or omissions of any successor trustee.
16.4 Plan Termination
Subject to Section 2 of the Welfare Schedule, if BNY lvlellon receives written notice from
Customer of the termination of the Plan, BNY Mellon will distribute all assets, less any
fees and expenses payable from the Plan's allocable portion of the Fund, pursuant to
lnstructions and upon receipt of appropriate documentation. BNY lvlellon is entitled to
assume that such distributions are in full compliance with, and not in violation of, the terms
of the Plan or any applicable law.
21
The Parties' respective ob gations under Section 15.1 will not apply to any such
information: (a) that is, as of the time of its disclosure or thereafter becomes, part of the
public dbmain through a source other than the receiving Party; (b) that was known to the
receiving Party as of the time of its disclosure and was not otherwise subject to
confidentiality obligations; (c) that is independently developed by the receiving Party
without reference to such lnformation; (d) that is subsequently learned from a third party
not known to be under a confidentiality obligation to the disclosing Party or (e) that is
required to be disclosed pursuant to applicable law, rule, regulation, requirement of any
law enforcement agency, court order or other legal process or at the request of a
regulatory authority including, but not limited to, the PUC or FERC.
16.5 Assets Not Transferred
BNY Mellon reserves the right to retain any Assets that are not suitable for distribution or
transfer at the time of the termination of the Plan or this Agreement and will hold such
Assets for the benefit of those Persons entitled to such Assets until such time as BNY
Mellon is able to make distribution. Upon the appointment and acceptance of a successor
trustee with respect to the Assets, BNY Mellon's sole duties will be those of a custodian
with respect to the Assets not transferred.
16.6 Survival
Any and all provisions of this Agreement which by their nature or effect are required or
intended to be observed, kept or performed after the expiration or termination of this
Agreement will survive the expiration or any termination of this Agreement and remain
binding upon and for the Parties' benefit, including Section 13 (Representations,
Warranties and Covenants); Section 14 (Liability); Section 1 5 (Confidentiality);
Sections 16.2 through 16.6 (Removal or Resignation; Effect of Removal or Resignation;
Plan Termination; Assets Not Transferred; Survival); and Section '17.5 (Governing
Law/Forum),
17.
17.1
GENERAL
Line ltem and Non-Fund Assets
(a) BNY Mellon may reflect on its books and records certain bookkeeping entries for
Assets including, but not limited to, book-entry Securities and limited partnership
interests that are selected and monitored by an Authorized Person. BNY Mellon
will rely without independent verification on information provided by Customer or
its designee regarding such Assets, including but not limited to positions and
market valuations.
(b)At Customer's request pursuant to lnstructions, subject to BNY Mellon's approval
and as an accommodation to Customer, BNY Mellon will provide consolidated
recordkeeping services reflecting on statements provided to Customer securities
and other assets not held by BNY Mellon ("Non-Fund Assets"). Non-Fund Assets
will be designated on BNY lvlellon's books as "assets not held in custody" or by
other similar designation and will not constitute part of the Fund for purposes of
this Agreement. Customer acknowledges and agrees that, notwithstanding
anything contained elsewhere in this Agreement, (a) Customer will have no
security entitlement against BNY [Iellon with respect to Non-Fund Assets; (b) BNY
Mellon will rely, without independent veriflcation, on information provided by
Customer or its designee regarding Non-Fund Assets (including positions and
market valuations) and (c) BNY Mellon will have no responsibility whatsoever with
respect to Non-Fund Assets or the accuracy of any information maintained on BNY
Mellon's books or set forth on account statements concerning Non-Fund Assets.
To the extent assels of the Plan are held outside of the Fund pursuant to
lnstructions, Customer will cause such assets to be held in accordance with the
trust, bonding and other requirements of ERISA,
22
BNY MELLON AND CUSTOMER CONFIDENTIAL
BNY MELLON AND CUSTOMER CONFIDENTIAL
17.2 Assignmenuu.S. Special Resolution Regime Transferability
(a) Neither Party may, without the other Party's prior written consent, assign any of its
rights or delegate any of lts duties under this Agreement (whether by change of
control, operation of law or otherwise); provided, however that BNY l\ilellon may,
without the prior written consent of Customer, assign this Agreement or any of its
rights, or delegate any of its duties hereunder: (a) to any BNY Mellon Affiliate; (b) to
any successor to the business of BNY Mellon to which this Agreement relates, in
which event BNY Mellon agrees to provide notice of such successor to Customer
or (c) as otherwise permitted in this Agreement. Any purported assignment or
delegation by a Party in violation of this provision will be voidable at the option of
the other Party. This Agreement will be binding upon, and inure to the benefit of,
the Parties and their respective permitted successors and assigns.
(b)Notwithstanding anything herein to the contrary, in the event BNY Mellon becomes
subject to a proceeding under a U.S. special resolution regime, the transfer of the
Agreement (and any interest and obligation in or under, and any property securing,
the Agreement) from BNY t\ilellon will be effective to the same extent as the transfer
would be effective under the U.S. special resolution regime if the Agreement (and
any interest and obligation in or under, and any property securing, the Agreement)
were governed by the laws of the United States or a state of the United States;
and, in the event BNY Mellon or any affiliate becomes subject to a proceeding
under a U.S. special resolution regime, default rights with respect to the Agreement
that may be exercised against BNY Mellon are permitted to be exercised to no
greater extent than the default rights could be exercised under the U.S. special
resolution regime if the Agreement were governed by the laws of the United States
or a state of the United States.
17.3 Exclusive Benefit
The assets of the Trust allocable to the Plan will be held for the exclusive purposes of
providing benefits to Plan participants and their beneficiaries and defraying the reasonable
expenses of administering the Plan and the Trust. This Agreement will be interpreted in
a manner consistent with that intent and with the intention of Customer that the Trust
hereunder satisfies those provisions of the Code relating to voluntary employees'
beneficiary associations. Except as may be provided by law, the Fund will not be subject
to any form of attachment, garnishment, sequestration or other actions of collection
afforded creditors of Customer or participants or beneficiaries under the Plan, and BNY
Mellon will not recognize any assignment or alienation of benefits unless an lnstruction is
received.
17 .4 Amendment
This Agreement may be amended or modified only in a written agreement signed by an
authorized representative of each Party. For purposes of the foregoing, email exchanges
between the Parties will not be deemed to constitute a written agreement.
23
BNY MELLON AND CUSTOMER CONFIDENTIAL
17 .5 Governing LadForum
(a) To the extent not preempted by federal law, the substantive laws of the state of
New York (without regard to its conflicts of law provisions) will govern all matters
arising out of or relating to this Agreement, including the establishment and
maintenance of the Fund and for purposes of the Uniform Commercial Code and
all issues specified in Article 2(1) of the Hague Securities Convention.
(b)Each Party irrevocably agrees that all legal actions or proceedings brought by it
against the other Party arising out of or relating to this Agreement will be brought
solely and exclusively before the state or federal courts situated in New York City,
New York. Each Party irrevocably submits to personal jurisdiction in such courts
and waives any objection which it may now or hereafler have based on improper
venue or forum non conveniens. The Parties hereby unconditionally waive, to the
fullest extent permitted by applicable law, any right to a jury trial with respect to
any such actions or proceedings.
17,6 Sovereignlmmunity
To the extent that in any jurisdiction Customer may now or hereafter be entitled to claim,
for itself or its assets, immunity from suit, execution, attachment (before or after judgment)
or other legal process, Customer irrevocably agrees not to claim, and it hereby waives,
such immunity.
17 .7 Notices
Other than routine communications in the ordinary course of providing or receiving
services hereunder (including lnstructions), notices given hereunder will be: (a) addressed
to BNY Mellon or Customer at the address set forth on the signature page (or such other
address as either Party may designate in writing to the other Party) and (b) sent by hand
delivery, by certified mail, return receipt requested, or by overnight delivery service, in
each case with postage or charges prepaid. All notices given in accordance with this
Section will be effective upon receipt.
'17.8 Entire Agreement
This Agreement constitutes the sole and entire agreement among the Parties with respect
to the matters dealt with herein, and merges, integrates and supersedes all prior and
contemporaneous discussions, agreements and understandings between the Parties,
whether oral or written, with respect to such matters.
17.9 Necessary Parties
BNY Mellon reserves the right to seek a judicial or administrative determination as to its
proper course of action under this Agreement. Nothing contained herein will be construed
or interpreted to deny BNY lvlellon or Customer the right to have BNY Mellon's account
judicially determined. To the extent permitted by law, only BNY Mellon and Customer will
be necessary parties in any application to the courts for an interpretation of this Agreement
or for an accounting by BNY lvlellon, and no participant under the Plan or other Person
having an interest in the Fund will be entitled to any notice or service of process. Any final
24
BNY MELLON AND CUSTOMER CONFIOENTIAL
judgment entered in such an action or proceeding will, to the extent permitted by law, be
conclusive upon all Persons.
'17.10 No Third Party Beneficiaries
This Agreement is entered into solely between, and may be enforced only by, the Parties.
Each Party intends that this Agreement will not, and no provision of this Agreement will be
interpreted to, benefit, or create any right or cause of action in or on behalf of, any party
or entity other than the Parties, their respective successors and assigns, and participants
and their beneficiaries under the Plan.
17.1 1 Counterparts/Facsimile
This Agreement may be executed in any number of counterparts, each of which will be
deemed an original, and said counterparts when taken together will constitute one and the
same instrument and may be sufficiently evidenced by one set of counterparts. This
Agreement may also be executed and delivered by facsimile or email with confirmation of
delivery and/or receipt.
17.12 lnterpretation
The terms and conditions of this Agreement are the result of negotiations between the
Parties. The Parties intend lhat this Agreement will not be construed in favor of or against
a Party by reason ofthe extent to which such Party or its professional advisors participated
in the preparation or drafting of this Agreement.
17.13 No Waiver
No failure or delay by a Party to exercise any right, remedy or power it has under this
Agreement will impair or be construed as a waiver of such right, remedy or power. A
waiver by a Party of any provision or any breach of any provision will not be construed to
be a waiver by such Party of such provision in any other instance or any succeeding
breach of such provision or a breach of any other provision. All waivers will be in writing
and signed by an authorized representative of the waiving Party.
17.14 Headings
All section and subsection headings in this Agreement are included for convenience of
reference only and will not be considered in the interpretation of the scope or intent of any
provision of this Agreement.
17.15 Severability
lf a court of competent jurisdiction determines that any provision of this Agreement is illegal
or invalid for any reason, such illegality or invalidity will not affect the validity of the
remainder of this Agreement. ln such case, the Parties will negotiate in good faith to
replace each illegal or invalid provision with a valid, legal and enforceable provision that
fulfills as closely as possible the original intent of the Parties.
[Signature page follows]
25
Pursuant to Section 10. '1 (a):
[ ] as beneficial owner, Customer OBJECTS to disclosure
[ ] as beneflcial owner, Customer DOES NOT OBJECT to disclosure
t I BNY Mellon will CONTACT THE INVESTMENT MANAGER with respect to relevant
Securities to make the decision whether it objects to disclosure
IF NO BOX IS CHECKED,BNY MELLON WILL RELEASE SUCH INFORMATION
UNTIL IT RECEIVES A CONTRARY INSTRUCTION FROM CUSTOMER OR
INVESTMENT ['ANAGER, AS APPLICABLE.
BNY MELLON AND CUSTOMER CONFIDENTIAL
lN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date
THE BANK OF NEW YORK MELLON PACIFICORP
By:By:
Title:
Date
Tifle:
Date;
Address for Notice:
The Bank of New York Mellon
Attention:
BNY Mellon Welfare Trust (revised 04.09 1g)
Address for Notice:
PacifiCorp
Attention
26
Nlo-o
-
N'-o
-
WELFARE SCHEDULE
ADDITIONAL PROVISIONS FOR WELFARE PLANS
The following additional terms and condilions supplement the Agreement and will In all respects
be considered part of the Agreement.
(a) The form and nature of the Plan will be established exclusively by Customer;
provided, however, that the Plan will provide for the payment of life, sickness,
accident or other benefits to employees or their dependents or beneficiaries. The
phrase "other benefits" will nol, however, include any benefit which is not permitted
pursuantto Section 501(c)(9) of the Code. Customerwill self-insure such welfare
benefits under the terms and conditions of the Plan.
(b)Customer will be solely responsible for the Plan's compliance with the Code and
ERISA, including the nondiscrimination requirements.
(c)It is the intent of Customer that the Trust be in the form and be in operation at all
times so as to comply with the requirements of Section 501(c)(9) of the Code, and
applicable provisions of ERISA. Customer has taken such action and has filed
such documents, or will in a timely manner take such action and file such
documents, as are required under Section 505(c) ofthe Code to notify the lnternal
Revenue Service that the Trust is applying for recognition as an organization which
is exempt from tax under Section 501(c)(9) of the Code. Customer will be
responsible for taking such action and filing such documents with respect to the
Plan as may be required by the Code or ERISA, and Customer agrees to notify
BNY Mellon promptly of any notification or determination by the lnternal Revenue
Service which adversely affects the Trust's status as a tax-exempt organization.
Assets will not be used for purposes other than the payment of eligible welfare
benefits or the expenses incident thereto or expenses of the Trust.
(d)
2. Plan Termination
Upon the Plan's termination pursuant to Section 16.4, the distributed assets will be used,
in accordance with Instructions, to provide benefits described in Section 501(c)(9) of the
Code to Plan participants or their dependents or beneficiaries (or used as provided in 26
C.F.R. Section 1.501(cXg)a(d)), except as otherwise provided in regulations of the
Department of Labor promulgated under Section 403(dX2) of ERISA. Until all assets of
the Trust are distributed, the Trust shall continue.
Welfare Schedule-l
BNY MELLON ANO CUSTOMER CONFIDENTIAL
1. Plan Establishment
BNY MELLON AND CUSTOMER CONFIDENTIAL
EXHIBIT A
CROSS-TRADING INFORMATION
As part of the Cross-Trading Program covered by the Department of Labor Prohibited Transaction
Exemption ('PTE') 95-56 granted to Mellon Bank, N.A- and its affiliates ("BNY Mellon"), BNY
I\ilellon is to provide to each affected employee benefit plan the following information:
BNY Mellon has developed and intends to utilize, wherever practicable, a Cross-Trading
Program for lndexed Accounts and Large Accounts as those terms are defined in PTE 95-
56.
ln accordance with PTE 95-56, three "Triggering Events" may create opportunities for
Cross-Trading transactions. They are generally the following (see PTE 95-56 for more
information):
A change in the composition or weighting of the index by the independent
organization creating and maintaining the index;
A change in the overall level of investment in an lndexed Account as a result of
investmenls and withdrawals on the lndexed Account's opening date, where the
lndexed Account is a bank collective fund, or on any relevant date for non-bank
collective funds; provided, however, a change in an lndexed Account resulting from
investments or withdrawals of assets of BNY Mellon's own plans (other than BNY
Mellon's defined contributions plans under which participants may direct among
various investment options, including lndexed Accounts) are excluded as a
"Triggering Events"; or
A recorded declaration by BNY Mellon that an accumulation of cash in an lndexed
Account attributable to interest or dividends on, and/or tender offers for portfolio
securities equal to not more than .5% of the lndexed Account's total value has
occurred.
Securities will be valued at the current market value for the securities on the date of the
crossing transaction.
Equity Securities - the current market value for the equity security will be the closing price
on the day oftrading as determined by an independent pricing service; unless the security
was added to or deleted from an index after the close of trading, in which case the price
will be the opening price for that security on the next business day after the announcement
of the addition or deletion.
Debt Securities - the current market value of the debt security will be the price determined
by BNY Mellon as of the close of the day of trading according to the Securities and
Exhibit A-l
1
2
3
l. The Existence of the Cross-Tradinq Prooram
ll. The "Trioqerinq Events" Creatinq Cross-Trade Oooortunities
lll. The Pricino Mechanism Utilized for Securities Purchased or Sold
BNY MELLON ANO CUSTOMER CONFIOENTIAL
Exchange Commission's Rule 17a-7(b)(4) under the lnvestment Company Act of 1940.
Debt securities that are not reported securities or traded on an exchange, will be valued
based on an average of the highest current independent bids and the lowest current
independent offers on the day of cross trading. BNY Mellon will use reasonable inquiry to
obtain such prices from at least three independent sources that are brokers or market
makers. lf there are fewer than three independent sources to price a certain debt security,
the closing price quotations will be obtained from all available sources.
Direct cross-trade opportunities will be allocated among potential buyers or sellers of debt
or equity securities on a pro-rata basis. With respect to equity securities, please note BNY
lvlellon imposes a trivial dollar amount constraint to reduce excessive custody ticket
charges to participating accounts.
Exhibit A-ll
lV. The Allocation Method and Other Procedures
EXHIBIT B
FIDUCIARY STATUS
As trustee, BNY Mellon reasonably expects that some of the services which it will provide under
the Agreement will be as a fiduciary as defined in Section 3(21 ) of ERISA and some will be non-
fiduciary in nature. ln its role as a directed trustee, BNY Mellon does not have discretionary
investment management authority, render investment advice for a fee or have discretionary
authority or responsibility in the adminiskation of the covered Plan(s). Nonetheless, as a directed
trustee, BNY Mellon retains certain limited fiduciary responsibilities, such as determining that
directions of a named fiduciary are proper, following processes designed to avoid non-exempt
prohibited transactions, and not knowingly participating in a breach of fiduciary responsibility of
another fiduciary. All of BNY Mellon's custodial duties and responsibilities, including but not
limited to safekeeping of assets, processing of corporate actions, trade settlement, posting of
income and other receipts, reporting of transactions and reporting of prices are expected to be
performed in a non-fiduciary capacity. Ultimately, whether BNY Mellon is acting as a fiducrary is
dependent upon the terms of the Agreement and the facts surrounding a particular function. With
respect to foreign exchange transactions done through BNY Mellon's Global Markets FX Desk, it
is acting as a principal counterparty on its own behalf and is not acting as a fiduciary or agent for
Customer, any Authorized Person or the Trust.
Exhibit B-l
BNY MELLON AND CUSTOIVlER CONFIDENTIAL
BNY MEttON
WELFARE TRUST AGREEMENT
By and Between
THE BANK OF NEW YORK MELLON
And
PACIFICORP
For the
PACIFICORP WELFARE BENEFITS TRUST
BNY MELLON AND CUSTOMER CONFIDENTIAL
TABLE OF CONTENTS
1
2
DEFINITIONS 1
APPOINTMENT OF TRUSTEE; THE FUND........2.1 Appointment of Trustee..........2.2 Contributions; lnvestment of the Fund........2.3 Procedures for Segregation of Assets............
4
4
4
6
6
6
7I
8
8I
9
9
o
III
0
3. AUTHORIZED PERSONS AND INSTRUCTIONS; ELECTRONIC ACCESS....
2.)Authorized Persons...........
lnstructions ........3.3 BNY Mellon Actions Wthout lnstructions ...,.3.4 Funds Transfers3.5 ElectronicAccess..............
4 SUBCUSTODIANS, DEPOSITORIES AND AGENTS4.1 Use of Subcustodians and Depositories..........
4.2
4.3
4.4
Liability for Subcustodians..
Liability for Depositories .....
Use of Agents....
5.CORPORATE ACTIONS
5.1
5.2
5.3
Notification.........
Exercise of Rights
Partial Redemptions, Payments, Etc....1
6. SETTLEMENT ...10
...10
...10
...10
o. I
6.2
6.3
Settlement lnstructions....
Settlement Funds ............
Settlement Practices .......
7.TAX MATTERS.10
10
11
7.1 Tax Obligations ............7.2 Responsibility for Taxes
7 .3 Payments
CREDITS AND ADVANCES ....
.12
I .'12
.12
.12
.12
.12
8.1
8.2
8.3
8.4
Contractual Settlement and
Advances...........
Repayment........
Securing Repayment..,.......
lncome.....
9. STATEMENTS; BOOKS AND RECORDS; THIRD PARTY DATA ... 13
... 13
.,.13
... 13
9.'l Statements..9.2 Books and Records
9.3 Third Party Data .......
,IO. DISCLOSURES10.1 Required Disc|osure..................
10.2 Foreign ExchangeTransactions
10.3 lnvestment of Cash ...................
14
14
15
15
I
BNY MELLON ANO CUSTOMER CONFIDENTIAL
TABLE OF CONTENTS
(continued)
1'1. REGULATORYMATTERS....,,...16
16
16
16
11.1 USA PATRIOT Act... .................
11.2 Sanctions...........11.3 Express Authorizatlon for ERISA Purposes
12.1 Fees and Expenses....
12.2 Other Compensation ..
.....17
.....17
13.REPRESENTATIONS, WARRANTIES AND COVENANTS13.1 BNY L4ellon
13.2 Customer...........
17
...17
....18
14. LIABtL|TY.....18
1814.1
14.2
14.3
14.4
Standard of Care.....
Limitation of Liability
Force Maieure .........
lndemnifi cation ........
.. 18
..20
..20
15.1 ConfidentialityObligations15.2 Exceptions.........
.20
.21
16. TERM AND TERMINATION16.1 Term........................
2',1
21
21
14
21
22
22
16.2 Removal or Resignation
16.3
16.4
16.5
16.6
Effect of Removal or Resignation .
Plan Termrnation
Assets Not Transferred ................
Surviva|..............
17, GENERAL.22
22)a
,1
24
24
24
24
24,(
25')\
1E
17.1 Line ltem and Non-Fund Assets...-...........
17.2 Assignmenuu.S. Special Resolution Regime Transferability
17 .3 Exclusive Benefit.
17.4
17.5
17 _6
17.7
17.8
17.9
17.10
17.11
17.12
17.13
17.14
17.15
Amendment......
Governing Law/Forum...,,.......
Sovereign 1mmunity................
Notices ....,.........
Entire Agreement ...................
Necessary Parties ..................
No Third Party Beneficiaries...
Counterparts/Facsimile ...,......
lnterpretation
No Waiver..........
Headings
Severability........
BNY MELLON AND CUSTOMER CONFIDENTIAL
TABLE OF CONTENTS
(continued)
WELFARE SCHEDULE
EXHIBIT A
EXHIBIT B
iii
BNY MELLON AND CUSTOMER CONFIOENTIAL
WELFARE TRUST AGREEMENT
This Agreement is made and entered inlo as of the latest date set forth on the signature
page hereto (the "Effective Date") by and between THE BANK OF NEw YORK MELLON, a
bank organized under the laws of the state of New York ("BNY Mellon"), and PACIFICORP, an
Oregon corporation ("Custome/'). BNY Mellon and Customer are collectively referred to as the
"Parties" and individually as a "Party".
RECITALS
WHEREAS, Customer and its subsidiaries or affiliates have established one or more
welfare benefit plans and may in the future adopt additional welfare benefit plans for the benefit
of the employees and retirees who are eligible for coverage thereunder (individually or collectively
the "Plan");
WHEREAS, Customer has established or desires to establish a trust to provide for the
funding of and payment of certain welfare benefits under the Plan;
WHEREAS, Customer and State Street Bank and Trust Company (and its predecessors)
previously entered into a Welfare Benefits Trust effective January 1 , 1997, as subsequently
amended (the "Prior Agreement"); and
WHEREAS, Customer wishes to have BNY t\ilellon act as the trustee of such trust, and
BNY lrlellon is willing to provide such services on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and intending to be legally bound, the Parties agree that the Prior Agreement is amended
and restated as follows.
DEFINITIONS
Whenever used in thrs Agreement, the following words have the meanings setforth below:
"Act" has the meaning set forth in Section 10.1(a).
"Affiliate" means, with respect to any entity, any other entity that directly or indirectly
controls, is controlled by or under common control with such entity.
"Agreement" means, collectively, this Welfare Trust Agreement, the Welfare Schedule
and any Exhibits hereto and any other documents incorporated herein by reference.
"Assets" means any assets acceptable to BNY Mellon, excluding any direct interest in
real properly, leaseholds or mineral interests, which Customer may transfer to BNY
i/ellon's care, to be held in trust in accordance with this Agreement.
"BNY Mellon" has the meaning set forth in the introductory paragraph,
1
"Authorized Person" has the meaning set forth in Section 3.1.
"Cash" means the money and currency of any jurisdiction which BNY Mellon accepts for
deposit in the Fund.
"Code" means the lnternal Revenue Code of 1986, as amended
"Confidential lnformation" means, with respect to a Party, the terms of this Agreement
and all non-public business and financial information of such Party (including, with respect
to Customer, information regarding the Fund and including, with respect to BNY Mellon,
information regarding its practices and procedures related to the services provided
hereunder) disclosed to the other Party in connection with this Agreement.
"Customer" has the meaning set forth in the introductory paragraph. ln addition,
references to "Customed' include reference to the Named Fiduciary if and to the extent
such Named Fiduciary is responsible for the applicable function under the Plan or ERISA.
"Data Terms Website"
httpt/www.bnymellon.com/products/assetseNicing/vendoragreement.pdf or
successor website the address of which is provided by BNY Mellon to Customer.
means
any
"Depository" means the Depository Trust Company, Euroclear, Clearstream Banking
S.A., the Canadian Depository System, CLS Bank and any other securities depository,
book-entry system or clearing agency authorized to act as a system for the cenlral
handling of securilies pursuant to the laws of the applicable jurisdiction, and any
successors to, and/or nominees of, any of the foregoing.
"Effective Date" has the meaning set forth in the introductory paragraph.
"Electronic Access Services" means such seNices made available by BNY Mellon or a
BNY Mellon Affiliate to Customer to electronically access information relating to the Fund
and/or transmit lnstructions.
'ERISA" means the Employee Retirement lncome Security Aclol 1974, as amended,
"Fund" means the account or accounts established pursuant to this Agreement to hold the
Assets of the Plan.
"lnstructions" means, with respect to this Agreement, instructions issued to BNY Mellon
by way of (a) one of the following methods (each as and to the extent specified by BNY
Mellon as available for use in connection with the services hereunder): (i) the Electronic
Access Services; (ii) third-party electronic communication services containing, where
applicable, appropriate authorization codes, passwords or authentication keys, or
otherwise appearing on their face to have been transmitted by an Authorized Person or
(iii) third-party institutional trade matching utilities used to effect transactions in
accordance with such utility's customary procedures or (b) such other method as may be
agreed upon by the Parties and that appear on their face to have been transmitted by an
Authorized Person.
"lnvestment Manager" means an investment manager within the meaning of Section
3(38) of ERISA with respect to the Fund that has been appointed pursuant to Section
2.2(d).
2
BNY MELLON AND CUSTOMER CONFIDENTIAL
BNY MELLON AND CUSTOMER CONFIDENTIAL
"Market Data" means pricing, valuations or other commercially sourced data applicable
to any Security. Market Data also includes security identifiers, bond ratings and
classification data.
"Market Data Providers" means vendors and analytics providers and any other Person
providing Market Data to BNY Mellon.
"Named Fiduciary" means individually and collectively, as applicable, any entity,
committee or Person identified herein as Named Fiduciary or otherwise having the
authority to control and manage the operation and administration of the Plan or the power
to manage and control the assets of the Plan, The Named Fiduciary with authority to
appoint a trustee is Customer. The Named Fiduciary that is the administrator of the Plan
is Customer.
"Non-Fund Assets" has the meaning set forth in Section 17.1 (b).
"Oral lnstructions" means, with respect to this Agreement, spoken instructions issued to
BNY Mellon and reasonably believed by BNY Mellon to be from an Authorized Person.
"Party" or "Parties" has the meaning set forth in the introductory paragraph
"Person" or "Persons" means any entity or individual
"Plan" has the meaning set forth in the Recitals
"Sanctions" means all economic sanctions laws, rules, regulations, executive orders and
requirements administered by any governmental authority of the United States (including
the Of{ice of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury) or
any other applicable domestic or foreign authority with jurisdiction over Customer.
"Securities" means all (a) debt and equily securities and (b) instruments representing
rlghts or interests therein, including rights to receive, subscribe to or purchase the
foregoing; in each case as may be agreed upon from time to time by BNY Mellon and
Customer and which are from time to time delivered to or received by BNY Mellon and/or
any Subcustodian for deposit in the Fund.
"Standard of Care" has the meaning set forth in Section 14.'1.
"Subcustodian" means a bank or other financial institution (other than a Depository) that
is selected and used by BNY Mellon or a BNY Mellon Affiliate in conneclion with the
settlement of transactions and/or custody of Assets hereunder, and any successors to,
and/or nominees of, any of the foregoing.
"Tax Obligations" means taxes, withholding, certification and reporting requirements,
claims for exemptions or refund, interest, penalties, additions to tax and other relaled
expenses.
"Thard Party Data" has the meaning set forth in Section 9.3(a)
"Trust" means the trust created by this Agreement, known as the Pacificorp Welfare
Benefits Trust.
3
BNY MELLON ANO CUSTOMER CONFIDENTIAL
2
"Welfare Schedule" means the Welfare Schedule attached hereto that contains additional
provisions for welfare plans.
APPOINTMENT OF TRUSTEE; THE FUND
Appointment of Trustee
(a) The Trust is intended to comply with ERISA and to be tax-exempt under Section
501(cXg) of the Code.
(b) Customer hereby appoints BNY Mellon as trustee for the Assets and BNY Mellon
hereby accepts such appointment. The Parties acknowledge and agree that BNY
Mellon's duties pursuant to such apporntment will be limited solely to those duties
expressly undertaken pursuant to this Agreement.
(c) Notwithstanding the foregoing, BNY Mellon has no obligation:
(i) With respect to any Assets until they are actually received and accepted by
BNY Mellon in the Fund;
(ii) To inquire into, make recommendations, supervise or determine the
suitability of any transactions affecting the Fund; or
(iii) To determine the adequacy of title to, or the validity or genuineness of, any
Assets received by it or delivered by it pursuant to this Agreement.
(d) Cash held hereunder may be subject to additional deposit terms and conditions
issued by BNY Mellon or the applicable Subcustodian from time to time, including
rates of interest and deposit account access.
(e) lf Customer engages in securities lending activities, such activities will be subject
to certain additional and/or modified terms to be set forth in a separate written
agreement between Customer and BNY Mellon or a BNY Mellon Affiliate.
Contributions; lnvestment of the Fund
(a) BNY Mellon will accept contributions that are paid to it by Customer in accordance
with this Agreement. Such contributions will be in Cash or in such other form as
may be acceptable to BNY Mellon. BNY Mellon will have no duty to determine or
collect contributions under the Plan. Customer represents that a Named Fiduciary
(and not BNY Mellon) has the sole duty and responsibility for the determination of
the accuracy or sufficiency of the contributions to be made under the Plan, the
timely kansmittal of the same to BNY Mellon and compliance with any statute,
regulation or rule applicable to contributions.
(b) BNY Mellon will return contributions made pursuant to subsection (a) above, if the
following conditions are satisfied:
(i) Contributions made by Customer based upon mistake of fact may be
returned to Customer within one year of such contribution.
2.1
2.2
4
BNY MELLON AND CUSTOMER CONFIDENTTAL
(ii)The amount which may be returned is the excess of the amount contributed
over the amount that would have been contributed had there not been a
mistake. Earnings attributable to excess contributions may not be relurned
but losses attributable thereto must reduce the amount to be so returned.
Any relurn of contribution or distribution of assets made by BNY Mellon will
be made only upon lnstructions of Customer, which has exclusive
responsibility for determining whether the conditions of such return or
distribution have been satisfied and for the amount to be returned or
distributed.
(c)BNY Mellon may commingle the assets attributable to more than one Plan, and
may commingle the Fund with funds of other trusts of similar nature created by
Customer for the exclusive benefit of its employees. Where commingling is
effected with other trusts maintained by Customer, the combined trust, to the
extent that assets are attributable to contributions made underthis Agreement, will
be the Fund referred to herein. BNY tvlellon will maintain such records as are
necessary in orderto maintain a separation ofthe Fund from the funds ofthe other
trusts maintained by Customer and, if and to the extent directed by Customer, to
separate the assets attributable to each Plan. Customer will be responsible for
causing sufflcient records to be maintained to ensure that beneflts and liabilities
payable with respect to each Plan will be paid from the assets allocable to each
such Plan.
(d)Customer has the authority and responsibility to manage the assets of the Fund.
ln carrying out this responsibility, Customer may appoint (and remove) one or more
lnvestment Managers, which may include BNY Mellon or a BNY Mellon Affiliate, if
and to the extent set forth in a separate agreement executed by BNY li4ellon or
such Affiliate. BNY Mellon will not be responsible under this Agreement, directly
or indirectly, for the investment or reinvestment of the assets of the Fund. lf
Customer appoints an lnvestment Manager, BNY Mellon will place in a separate
subaccount those assets over which the lnvestment Manager has discretion and
control.
2.3 Procedures for Segregation of Assets
Customer may, if it so determines, at any time designate any group or groups of the eligible
employees or other beneficiaries covered by the Plan as a separate class and may direct
BNY Mellon to segregate in a separate fund, to be held for the benefit of such class, the
part of the Fund allocable to such class as determined by Customer, or some lesser
amount than such allocable part if Customer will determine that other equitable provision
is made for the difference. Customer will cause BNY lvlellon to effect such segregation by
providing lnstructions to BNY lrilellon of Customer's determination, together with evidence
of appropriate action by the governing body directing such segregation. BNY Mellon may
rely conclusively and without jnvestigation upon any such notification of the determination
and evidence of appropriate action by the governing body and will segregate such assets
as Customer may direct, BNY lvlellon's valuation of such assets for that purpose will be
conclusive. BNY Mellon will hold all of the assets so segregated under this provision,
together with such payments as will thereafter be made to the Fund on behalf of such
class, and the income therefrom, as a subpart of the Fund and subject to the terms of this
Agreement, or will dispose of the same as directed by Customer. ln the event that the
5
BNY MELLON ANO CUSTOMER CONFIDENTIAL
Fund or any subpart thereof created by this Agreement is terminated as to such class,
Customer will direct the disposition of the assets held by BNY Mellon for such class
through transfer to a successor trustee or other means, as Customer determines, and
thereafter such employees and other beneficiaries will not have any rights in the Fund, or
against BNY Mellon.
3. AUTHORIZED PERSONS AND INSTRUCTIONS; ELECTRONIC ACCESS
3.1 Authorized Persons
Promptly following the Effective Date, Customer and/or its designee (including any of
Customer's Investment Managers) will furnish BNY Mellon with one or more written lists
or other documentation acceptable to BNY Mellon specifying the names and titles of, or
otherwise identifying, all Persons authorized to act on behalf of Customer with respecl to
this Agreement (each, an "Authorized Person"). Customer will be responsible for
keeping such lists and/or other documentation current, and will update such lists and/or
other documentation, as necessary from time to time, pursuant to lnstructions.
3.2 lnstructions
(a) Except as otherwise expressly provided in this Agreement, BNY N4ellon will have
no obligation to take any action hereunder unless and until it receives lnstructions
issued in accordance with this Agreement.
(b)Customer will be responsible for ensuring that (i) only Authorized Persons issue
lnstructions to BNY Mellon and (ii) all Authorized Persons safeguard and treat with
exlreme care any user and authorization codes, passwords and authentication
keys used in connection with the issuance of Instructions.
(c)Where Customer may or is required to issue lnstructions, such lnshuctions will be
issued by an Authorized Person. The Authorized Person (and not BNY Mellon)
will be responsible for determining that lnstructions are in accordance with the
terms of the Plan and applicable law.
(d)
(e)
(f)
(s)
BNY Mellon will be entitled to deal with any Authorized Person until notified
otherwise pursuant to lnstructions, and will be entitled to act and rely upon any
lnstruction received by BNY Mellon,
All lnshuctions must include all information necessary, and must be delivered
using such methods and in such format as BNY Mellon may require and be
received within BNY Mellon's established cut-off times and otherwise in sufficient
time, to enable BNY Mellon to act upon such lnstructions.
BNY lvlellon may in its sole discretion decline to act upon any Instructions that do
not comply with requirements set forth in Section 3.2(e) or that conflict with
applicable law or regulations or BNY Mellon's operating policies and praclices, in
whach event BNY Mellon will promptly notify Customer.
Customer acknowledges that while it is not part of BNY Mellon's normal practices
and procedures to accept Oral lnstructions, BNY Mellon may in certain limited
circumstances accept Oral Instructions. ln such event, such Oral lnstructions will
6
be deemed to be lnstructions for purposes of this Agreement. An Authorized
Person issuing such an Oral lnstruction will promptly conflrm such Oral Instruction
to BNY Mellon in writing. Notwithstanding the foregoing, Customer agrees that the
fact that such written confirmation is not received by BNY Mellon, or that such
written confirmation contradicts the Oral lnstruction, will in no way affect (i) BNY
Mellon's reliance on such Oral lnstruction or (ii) the validity or enforceability of
transactions authorized by such Oral lnstruction and effected by BNY Mellon.
(h)Customer acknowledges and agrees that it is fully informed of the protections and
risks associated with the various methods of transmitting lnstructions to BNY
Mellon and that there may be more secure methods of transmitting lnstructions
than the method selected by the sender. Customer agrees that the security
procedures, if any, to be followed by Customer and BNY Mellon with respect to the
transmission and authentication of Instructions provide to Customer a
commercially reasonable degree of protection in light of the Fund's particular
needs and circumstances.
3.3 BNY Mellon Actions Without lnstructions
Notwithstanding anything to the contrary set forth in this Agreement, Customer hereby
authorizes BNY Mellon, without lnstructions, to take any administrative or ministerial
actions with respect to the Fund that it deems reasonably necessary or appropriate to
perform its obligations under this Agreement, including the following:
(a) Receive income and other payments due to the Fund; provided, however, that BNY
Mellon will have no duty to pursue collection of any amount due to the Fund,
including for Securities in default, if such amount is not paid when due;
(b) Carry out any exchanges of Securities or other corporate actions not requiring
discretionary decisions;
(c)Facilrtate access by Customer or its designee to ballots or online systems to assist
it in the voting of proxies received by BNY Mellon (in its capacity as custodian) for
eligible positions of Securities held in the Fund (excluding bankruptcy matters), all
of which will be exercised by Customer or its designee and not by BNY Mellon;
Forward to Customer or its designee information (or summaries of information) that
BNY Mellon receives (in its capacity as custodian) from Depositories or
Subcustodians concerning Securities in the Fund (excluding bankruptcy matters);
(d)
(e)Forward to Customer or its designee an initial notice of bankruptcy cases relating
to Securities held in the Fund and a notice of any required action related to such
bankruptcy cases as may be received by BNY Mellon (in its capacity as custodian).
BNY Mellon will take no further action nor provide further notification related to the
bankruptcy case;
(f)Unless otherwise elected by Customer, and in accordance with BNY Mellon's
standard terms and conditions, provide class action filing services for settled
claims related to Securities with industry recognized identifiers;
7
BNY MELLON AND CUSTOMER CONFIDENTIAL
BNY MELLON AND CUSTOMER CONFIDENTIAL
(s)Endorse for collection checks, drafts or other negotiable instruments received on
behalf of the Fund;
Deposit Cash in accounts bearing interest at a reasonable rate in the banking
department of BNY Mellon or an affiliated banking organization; and
(h)
(i)Execute and deliver, solely in its capacity as custodian, certificates, documents or
instruments incidental to BNY Mellon's performance under this Agreement.
3.4 Funds Transfers
3.5 Electronic Access
4. SUBCUSTODIANS, DEPOSITORIES AND AGENTS
4.1 Use of Subcustodians and Depositories
(a) BNY Mellon will be entitled to utilize Subcustodians and Deposilories in connection
with its performance hereunder.
(b)BNY Mellon will only utilize Subcustodians that have entered into an agreement
with BNY Mellon or a BNY lvlellon Affiliate, and Assets held through a
Subcustodian will be held subject to the terms and conditions of such
Subcustodian's respective agreement.
(c)Assets deposited in a Depository will be held subject to the rules, procedures,
terms and conditions of such Depository. Subcustodians may hold Assets in
Depositories in which such Subcustodians participate.
(d)Unless otherwise required by local law or practice or a particular Subcustodian
agreement, Assets deposited with Subcustodians or Depositories may be held in
a commingled account in the name of, as applicable, BNY Mellon, a BNY Mellon
Affiliate or the applicable Subcustodian, for its clients.
B
With respect to each lnstruction for a Cash transfer, when the lnskuction is to credit or
pay a party by both a name and a unique numeric or alpha-numeric identifier (e,9., IBAN
or ABA or account number), BNY Mellon and any other bank participating in the Cash
transfer will be entitled to rely solely on such numeric or alpha-numeric identifier, even if it
identifies a party different from the party named. Such reliance on an identifier will apply
to beneficiaries named in the lnstruction, as well as any financial institution that rs
designated in the lnstruction to act as an intermediary in such Cash transfer. Totheextent
permitted by applicable law, the parties will be bound by the rules of any transfer system
used to effect a Cash transfer under this Agreement.
lf Customer elects to use the Electronic Access Services in connection with this
Agreement, the use thereof will be subject to any terms and conditions contained in a
separate written agreement between the Parties or their Affiliates. lf an Authorized Person
elects, with BNY tvlellon's prior consent, to transmit lnstructions through a third-party
electronic communications service, BNY Mellon will not be responsible or liable for the
reliability or availability of any such service.
BNY MELLON ANO CUSTOMER CONFIOENTIAL
4.2 Liability for Subcustodians
(a) BNY Mellon will exercise the Standard of Care described in clause (a) of the first
sentence of Section 14.1 in selecting, retaining and monitoring Subcustodians.
(b) With respect to Assets held by a Subcustodian, BNY Mellon will be liable to
Customer for the activities of such Subcustodian under this Agreement to the
extent that BNY lvlellon would have been liable to Customer under this Agreement
if BNY Mellon had performed such activities itself in the relevant market in which
such Subcustodian is located; provided, however, that with respect to Securities
held by a Subcustodian that is not a BNY Mellon Affiliate:
(i) BNY Mellon's liability will be limited solely to lhe extent resulting directly
from BNY Mellon's failure to exercise the Standard of Care described in
clause (a) of the flrst sentence in Section 14.1 in selecting, retaining and
monitoring such Subcustodian; and
(ii) To the extent that BNY Mellon is not liable pursuant to Section 4.2(bxi),
BNY Mellon's sole responsibility to Customer will be to: (A) take reasonable
and appropriate action to recover from such Subcustodian, and (B) forward
to the Trust any amounts so recovered (exclusive of costs and expenses
incurred by BNY Mellon in connection therewith).
Liability for Depositories
BNY Mellon will have no responsibility or liability for the activities of any Depository arising
out of or relating to this Agreement or any cost or burden imposed on the transfer or
holding of Assets held with such Depository.
Use of Agents
BNY Mellon may appoint agents, including BNY Mellon Affiliates, on such terms and
conditions as it deems appropriate to perform its obligations hereunder. Except as
otherwise specifically provided herein, no such appointment will discharge BNY Mellon
from its obligations hereunder.
CORPORATE ACTIONS
Notification
BNY Mellon will notify Customer or its designee of rights or discretionary corporate actions
as promptly as practicable under the circumstances, provided that BNY Mellon has
actually received, in its capacity as cuslodian, notice of such right or discretionary
corporate action from the relevant issuer, or from a Subcustodian, Depository or third party
vendor. Without actual receipt of such notice by BNY Mellon, BNY Mellon will have no
responsibility or liability for failing to so notify Customer.
Exercise of Rights
Whenever there are voluntary rights that may be exercised or alternate courses of action
that may be taken with respect to Securities ln the Fund, Customer or its designee will be
4.3
4.4
5
5.1
I
5.2
BNY MELLON AND CUSTOMER CONFIDENTIAL
responsible for making any decisions relating thereto and for instructing BNY Mellon to
act. ln order for BNY Mellon to act, Customer must issue Instructions either: (a) using the
BNY Mellon-generated form provided along with BNY l\4ellon's notice under Section 5.1
or (b) if Customer is not using such BNY Mellon-generated form, clearly indicating, by
reference to the options provided on such BNY Mellon-generated form, which action
Customer is electing. Each such lnstruction will be addressed as BNY Mellon may from
time to time request and issued by such time as BNY Mellon will advise Customer or its
designee.
5.3 Partial Redemptions, Payments, Etc.
BNY Mellon will advise Customer or its designee upon its notification, in its capacity as
custodian, of a partial redemption, partial payment or other action with respect to a
Security affecting fewer than all such Securities held within the Fund. lf BNY l\,,lellon or
any Subcustodian or Depository holds any Securities affected by one of the events
described, BNY Mellon or such Subcustodian or Depository may select the Securities to
participate in such partial redemplion, partial payment or other action in any non-
discriminatory manner that it customarily uses to make such selection.
6. SETTLEMENT
Promptly after lhe execution of each Securities transaction, Customer will issue to BNY
Mellon lnstructions to settle such transaction, Unless otheMise agreed by BNY Mellon
and subject to Section 8.1 , Assets will be credited to the Fund only when actually received
by BNY Mellon.
6.2 Settlement Funds
For the purpose of settling a Securilies transaction, Customer will provide BNY Mellon
with sufficient immediately available funds or Securities, as applicable, by such time and
date as is required to enable BNY Mellon to settle such transaction in the country of
setllement and in the currency to be used to settle such transaction.
6.3 SettlementPractices
Securities transactions will be settled using practices customary in the jurisdiction or
market where the transaction occurs, which may include the delivery of Securities or Cash
to a counterparty or its agents against, as applicable, the receipt of Securities or Cash in
the future. Customer assumes, on behalf of the Trust, full responsibility for all risks
involved in connection with BNY Mellon's delivery of Securities or Cash in accordance
with such practices.
7. TAX MATTERS
7.1 Tax Obligations
To the extent that BNY Mellon has received relevant and necessary information with
respect to the Fund, BNY Mellon will perform the following services with respect to Tax
Obligations:
10
6.1 Settlementlnstructions
BNY MELLON AND CUSTOMER CONFIOENTIAL
(a)BNY Mellon (or the applicable Subcustodian) will apply, withhold and report
appropriate amounts as BNY Mellon (in rts capacity as custodian) orthe applicable
Subcustodian (in its capacity as Subcustodian) is required to do underthe relevant
source country tax laws, and is authorized to debit the Fund in the amount of a Tax
Obligation withheld and to pay such amount to the appropriate taxing authority.
(b)BNY Mellon will, where appropriate and upon receipt of sufficient information,
pursue claims for tax relief where (i) either a tax treaty or a source country's
domestic tax laws provide for favorable tax treatment with respect to an Asset as
a result of the Trust's status as a specific type of investor and/or residency status
and (ii) the source country's tax authorities have outlined the requirements and
qualification criteria required to obtain such relief.
(c)BNY Mellon will fonavard to Customer or its designee information regarding Tax
Obligations applicable to Customer that BNY [\4ellon receives in its capacity as
custodian from third parties and that BNY Mellon reasonably believes would be
useful to Customer or its designee in the submission of any reports or returns with
respect to Tax Obligations.
(d)BNY Mellon offers certain tax services pursuant to a separate tax service and fee
agreement. Except to the extent Customer enters into a separate tax service and
fee agreement with BNY Mellon specifying tax services related to the following
matters to be performed by BNY lvlellon, Customer assumes all responsibility for,
and will perform all matters related to (i) the completion and filing of all required
U.S. Federal lncome tax returns for the Trust and/or the required U.S. Federal
informational returns for tax exempt trusts and (ii) all state tax compliance
obligations with respect to the Trust, in each case including those Tax Obligations
that may be imposed on BNY Mellon under any law.
(e)BNY Mellon will only be responsible for performing, and will only perform, the
obligations of BNY Nlellon that are expressly set forth rn this Section 7.1 and such
other tax services (which may include non-income tax related services) that are
expressly agreed upon by BNY Mellon and Customer pursuant to a separate tax
service and fee agreement, if any.
(f)BNY Mellon may consult with and rely upon Customer in matters pertaining to Tax
Obligations. Customer will provide and/or will cause its Authorized Persons to
provide information necessary for BNY Mellon to fullill any obligations it may have
hereunder or under any separate tax services agreement with respect to Tax
Obligations in a timely manner.
7.2 Responsibility for Taxes
Customer will be responsible and liable for all Tax Obligations with respect to any Assets
held on behalf of Customer and any transaction related thereto. Customer acknowledges
and agrees that BNY Mellon and its Affiliates are not tax advisers and will not under any
circumstances provide tax advice to Customer. Customer will obtain its own independent
tax advice for any tax-related matters.
11
BNY MELLON AND CUSTOMER CONFIDENTIAL
7 .3 Payments
Where BNY Mellon receives lnstructions to make distributions or transfers out of the Fund
in order to pay Customer's third party service providers, Customer acknowledges that in
making such payments BNY Mellon is acting in an administrative or ministerial capacity,
and not as the payor, for lax information reporting and withholding purposes.
8. CREDITS AND ADVANCES
8.1 Contractual Settlement and lncome
BNY Mellon may, in its sole discrelion, as a matter of bookkeeping convenience, credit
the Fund with the proceeds resulting from the purchase, sale, redemption or other delivery
or receipt of Securities, or interest, dividends or other distributions payable on Securities,
or any foreign exchange transaction effected in connection with this Agreement, prior to
its actual receipt thereof. All such credits will be conditional until BNY Mellon's actual
receipt of such proceeds and may be reversed by BNY Mellon to the extent that such
proceeds are not received. Actual receipt of proceeds with respect to a transaction will
not be deemed to have occurred, and the transaction will not be considered final, until
BNY Mellon has received sufficient immediately available funds or Securities specifically
applicable to such transaction that, under applicable local law, rule or practice, are
irreversible and not subject to any security interest, levy or other encumbrance.
8,2 Advances
If BNY Mellon receives an lnstruction that, if processed, would result in an overdrafi in the
Fund, BNY Mellon may, in its sole discretion, advance funds in any currency hereunder,
8.3 Repayment
lf: (a) BNY Mellon has advanced funds to the Fund; (b) an overdraft has occurred in the
Fund (including overdrafts incurred in connection with the settlement of securities
transactions, funds transfers or foreign exchange transactions) or (c) the Trust is for any
other reason indebted to BNY Mellon, Customer on behalf of the Trust agrees to repay
BNY Mellon (on demand or upon becoming aware thereof) the amount of such advance,
overdraft or indebtedness, plus accrued interest at a rate then charged by BNY Mellon to
its institutional custody clients in the relevant currency.
8.4 Securing Repayment
ln order to secure repayment of the Trust's obligations and liabilities (whether or not
matured) to BNY lVellon or any BNY lr4ellon Affiliate, arising under or related to this
Agreement, and without limiting BNY Mellon's or such BNY Mellon Afflliate's rights under
applicable law or any other agreement, Customer on behalf of the Trust hereby pledges
and grants to BNY Mellon and such BNY Mellon Affiliate, and agrees BNY lvlellon and
such BNY Mellon Afflliate will have to the maximum extent permitted by law, a continuing
first lien and security interest in all of the Plan's and the Trust's right, title and interest in
and to the Fund and the Assets now or hereafter held in the Fund (including proceeds
thereoO; provided that Customer does not hereby grant a security interest in any Securities
issued by an affiliate (as defined in Section 23A of the U.S. Federal Reserve Act) of BNY
12
BNY i/lELLON AND CUSTOMER CONFIOENTIAL
9.
Mellon. Customer represents, warrants and covenants that the Trust owns the Assets in
the Fund free and clear of all liens, claims and security interests (except as otherwise
acknowledged in writing by BNY Mellon), and that the first lien and security interest
granted herein will be subject to no setoffs, counterclaims or other liens prior to or on a
parity with it in favor of any third party (other than specific liens granted preferred status
by statute). Customer will take any additional steps required to assure BNY Mellon of
such priority security interest, including notifying third parties or obtaining their consent.
BNY Mellon will be entitled to collect from the Fund sufficient Cash for reimbursement,
and if such Cash is insufficient, to sell Securities to the extent necessary to obtain
reimbursement. ln this regard, BNY Mellon will be entitled to all the rights and remedies
of a pledgee, secured creditor and/or securities intermediary under applicable laws, rules
and regulations as then in effect as if the Trust is in default.
STATEMENTS; BOOKS AND RECORDS; THIRD PARTY DATA
9.1 Statements
BNY Mellon will make available to Customer, through the Electronic Access Services or
such other method as may be agreed upon by the Parties, a monthly statement reflecting
all transfers to or from the Fund during such month and all holdings in the Fund as of the
last business day of such month. Customer will promptly review each such statement
and, within ninety (90) days of when such statement is made available by BNY Mellon,
notify BNY Mellon of any exception or objection thereto. Notwithstanding the foregoing,
Customer may notify BNY Mellon of any such exceptions or objections at any time;
provided, however, that BNY Mellon will not be responsible or liable for any losses
reasonably evident from review of such statement that could have been mitigated had
such notice been provided during such ninety (90) day period.
9.2 Books and Records
BNY N,tellon will identify on its books and records the Assets belonging to the Fund,
whether held directly or indirectly through Subcustodians or Depositories. Securities held
in the Fund will be held in registered form in the name of BNY Mellon or one of its nominees
and will be segregated on BNY Mellon's books and records from BNY fvlellon's own
property. Customer and its authorized representatives will have the right, at Customer's
own expense and with reasonable prior written notice to BNY lv'lellon, to have reasonable
access to those books and records directly pertaining to the Fund. Any such access will
occur during BNY Mellon's normal business hours and will be subject to BNY Mellon's
applicable security policies and procedures.
9.3 Third Party Data
(a) Customer acknowledges that BNY Mellon will be receiving, utilizing and relying on
Ivlarket Data and other data provided by Customer and/or by third parties in
connection with its performance of the services hereunder (collectively, "Third
Party Data"). BNY Mellon is entitled to rely without inquiry on all Third Party Data
provided to BNY Mellon hereunder (and all lnstructions related to Third Party
Data), and BNY Mellon makes no assurances or warranties in relation to the
accuracy or completeness of Third Party Data and will not be responsible or liable
for any losses or damages incurred as a result of any Third Party Data that is
'13
BNY MELLON AND CUSTOi{ER CONFIDENTIAL
inaccurate or incomplete. BNY Mellon may follow lnstructions with respect to Third
Party Data, even if such lnstructions direct BNY ftilellon to override its usual
procedures and data sources or if BNY Mellon, in performing services for itself or
others (including services similar to those performed for Customer), receives
different Third Party Data for the same or similar Securities.
(b)To the extent that BNY Mellon provides values of, and pricing information in
relation to, Securities, Customer acknowledges and agrees that:
(i) BNY Mellon is authorrzed to use generally recognized pricing services
including Market Data Providers, brokers, dealers and other market
makers. In the event that such pricing services are unable to provide a
value of or pricing information in respect of Securities and BNY Mellon
provides values and pricing information, BNY Mellon will so advise
Customer, but will have no other responsibility or liability in respect of such
valuation or pricing information;
(ii)Certain pricing or valuation information may be based on calculated
amounts rather than actual market transactions and may not reflect actual
market values, and the variance between such calculated amounts and
actual market values may be material;
(iii) Certain third party service providers may not permit Customer's directed
price to be used, which may result in differences between third party
service provider reports and custodial reportsi
(iv)Performance measurement and analytic services may use different data
sources than those used by BNY Mellon to provide Market Data for the
Fund, which may result in differences between custodial reports and
performance measurement and analytic reports; and
(v)BNY lvlellon may require Customer to execute supplemental
documentation prior to providing pricing for certain Securities.
(c)Certain Market Data may be the intellectual property of lvlarket Data Providers,
which impose additionalterms and conditions upon Customer's use of such Market
Data. Such additional terms and conditions can be found on the Data Terms
Website. Customer agrees to those terms and conditions as they are posted on
the Data Terms Website from time to time.
DISCLOSURES
Required Disclosure
(a) With respect to Securities that are registered under the U.S. Securities Exchange
Act of '1934, as amended, or that are issued by an issuer registered under the U.S.
lnvestment Company Act of 1940, as amended, the U.S. Shareholder
Communications Act of 1985 (the "Act") requires BNY Mellon to disclose to issuers
of such Securities, upon their request, the name, address and securities position
of BNY Mellon's clients who are "beneflcial owners" (as defined in the Act) of the
14
10.
10.1
BNY MELLON ANO CUSTOMER CONFIDENTIAL
(b)
issuer's Securities, unless the beneficial owner objects to such disclosure. The
Act defines a "beneficial owner" as any person who has or shares the power to
vote a security (pursuant to an agreement or otherwise) or who directs the voting
of a security. Customer has designated on the signature page hereof whether (i)
as beneficial owner, it ob.lects to the disclosure of its name, address and securities
position to any U.S. issuer that requests such information pursuant to the Act for
the specific purpose of direct communications between such issuer and Customer
or (ii) it requires BNY Mellon to conlact the lnvestment Manager with respect to
relevant Securities to make the decision as to whether it objects to the disclosure
of the beneficial owner's name, address and securities position to any U.S. issuer
that requests such information pursuant to the Act.
With respect to certain Securities issued outside the Unated States, BNY Mellon
may disclose information to issuers of Securities as required by the organizational
documents ofthe relevant issuer or in accordance with local market practice.
(c)ln connection with any disclosure contemplated by this Section 10.1, Customer
agrees to supply BNY lvlellon with any required information.
10.2 Foreign ExchangeTransactions
ln connection with this Agreement, Customer may enter into foreign exchange
transactions (including foreign exchange hedging transactions) with BNY Mellon or a BNY
Mellon Afflliate acting as a principal or otheMise through customary channels. Customer
may issue standing lnstructions with respect to any such foreign exchange transactions,
subject to any rules or limitations that may apply to any foreign exchange facility made
available to the Fund. With respect to any such foreign exchange transactions, BNY
Mellon or such BNY Mellon Affiliate is acting as a principal counterparty on its own behalf
and is not acting as a fiduciary or agent for, or on behalf of, Customer, its lnvestment
Manager or the Trust. Any such foreign exchange transactions will be governed by the
relevant master netting agreement (e.9., an ISDA Master Agreement) in place between
Customer and BNY Mellon or such BNY Mellon Affiliate, and such transactions will be
secured by the Fund and the Assets therein pursuant to Section 8.4. ln the event there is
no such master netting agreement in place and Customer fails to settle or otherwise meet
its obligations in respect of such foreign exchange transactions, BNY Mellon has the right
to net all such outstanding foreign exchange transactions between the Trust and BNY
Mellon or such BNY Mellon Affiliate for the purpose of ascertaining a single net obligation
between the Trust and BNY Mellon, and to the extent such obligation is owed by the Trust
to BNY Mellon or a BNY Mellon Affiliate, such obligation will be secured by the Fund and
the Assets therein pursuant to Section 8.4.
10.3 lnvestment of Cash
ln connection with this Agreement, Customer may issue standing lnstructions to invest
Cash in one or more sweep investment vehicles. Such investment vehicles may be
offered by a BNY Mellon Affiliate or by a client of BNY Mellon, and BNY tvlellon may
receive compensation therefrom. By making investment vehicles available, BNY Mellon
and its Affiliates will not be deemed to have recommended, endorsed or guaranteed any
such investment vehicle in any way or otherwise to have acted as a fiduciary or agent for,
or on behalf of, Customer, any Named Fiduciary, any lnvestment Manager or the Fund.
15
BNY MELLON AND CIJSTOMER CONFIDENTIAL
BNY Mellon will have no liability for any loss incurred on any such investments. Customer
understands that Cash may be uninvested if it is received or reconciled to an account in
the Fund after the applicable deadline to be swept into the selected investment vehicle.
11. REGULATORY MATTERS
11.1 USA PATRIOT Act
Section 326 of the U.S, Uniting and Strengthening America by Providing Appropriate Tools
Required to lntercept and Obstruct Terrorism Act of 2001 (including its implementing
regulations) requires BNY Mellon to implement a customer identification program pursuant
to which BNY h/ellon must obtain certain information from Customer in order to verify
Customer's identity prior to establishing an account. Accordingly, prior to establishing the
Fund, Customer will be required to provide BNY Mellon wrth certain information, including
Customer's name, physical address, tax identification number and other pertinent
identifying information, to enable BNY Mellon to verify Customer's identity. Customer
acknowledges that BNY Mellon cannot establish an account unless and until BNY Mellon
has successfully performed such verification.
11.2 Sanctions
(a) Throughout the term of this Agreement, Customer: (i) will have rn place and will
implement policies and procedures designed to prevent violations of Sanctions,
including measures to accomplish effective and timely scanning of all relevant data
with respect to incoming or outgoing Assets or transactions relating to this
Agreement; (ii) will ensure that neither Customer nor any of its Affiliates, directors,
officers or employees 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) will not, directly or indirectly, use the Fund in any manner that
would result in a violation by Customer or BNY Mellon of Sanctions.
(b)Customer will promptly provide to BNY Mellon such information as BNY lvlellon
reasonably requests in connection with the matters referenced in this Section 'l 1.2,
including information regarding the Fund, the Assets and the source thereof, and
the identity of any individual or entity having or claiming an interest therein. BNY
Mellon may decline to act or provide services in respect ofthe Fund, and take such
other actions as it, in its reasonable discretion, deems necessary or advisable, in
connection with the matters referenced in this Section 'l 1 .2- lf BNY Mellon
declines to act or provide services as provided in the preceding sentence, except
as otheruise prohibited by applicable law or official request, BNY Mellon will inform
Customer as soon as reasonably practicable,
11.3 Express Authorization for ERISA Purposes
Without limiting the generality of Section 3.2 (lnstructions), which generally permits any
actions by BNY Mellon hereunder pursuant to lnstructions, BNY Mellon is expressly
authorized to, in the administration of the Fund pursuant to lnstructions, settle investments
in any collective investment fund, including a collective investment fund maintained by
BNY Mellon or a BNY Mellon Affiliate and to appoint agents and sub-trustees. To the
16
extent that any investment is made in any such collective investment fund, the terms of
the collective trust indenture will solely govern the investment duties, responsibilities and
powers of the trustee of such collective investment fund and such terms, responsibilities
and powers will be incorporated herein by reference and will be a part of this Agreement.
For purposes of valuation, the value of the interest maintained by the Fund in such
collective investment fund will be the fair market value of the collective investment fund
units held, determined in accordance with generally recognized valuation procedures,
Customer understands and agrees that any such collective investment fund may provide
for the lending of its securities by the collective investment fund trustee and that such
collective investment fund trustee will receive compensation for the lending of securities
that is separate from any compensation of BNY Mellon hereunder, or any compensation
of the collective investment fund trustee for the management of such fund. BNY Mellon
is authorized to invest in a collective fund which invests in The Bank of New York Mellon
Corporation stock in accordance with the terms and conditions of the Department of Labor
Prohibited Transaction Exemption 95-56 (the "Exemption") granted to Mellon Bank, N.A.
and its affiliates and to use a cross-trading program in accordance with the Exemption.
Customer acknowledges receipt of the notice entitled "Cross-Trading lnformation," a copy
of which is attached as Exhibit A.
12.
12.1
COMPENSATION
Fees and Expenses
ln consideration of BNY Mellon's services provided hereunder, BNY Mellon will be (a) paid
the fees set forth in the agreed upon fee schedule (as such fee schedule may be amended
by BNY Mellon from time to time upon 45 days'prior written notice to Customeo and
(b) reimbursed for any out-of-pocket and incidental expenses incurred by BNY Mellon in
connection therewith. Unless otherwise agreed by the Parties, such amounls will be
payable to BNY Mellon within 45 days of Customer's receipt of the relevant invoice.
Without limiting BNY tvlellon's other rights set forth in this Agreement, BNY Mellon may
charge interest on overdue amounts at a rate then charged by BNY Mellon to its
institutional trust clients in the relevant currency. BNY Mellon is authorized to charge and
collect from the Fund its fees and expenses unless such fees and expenses are paid
directly by Customer.
Customer acknowledges that, as part of BNY Mellon's compensation, BNY Mellon will
earn interest on Cash balances held by BNY Mellon (including disbursement balances,
balances arising from purchase and sale transactions and when Cash otherwise remains
uninvested) as provided in BNY Mellon's compensation disclosures,
REPRESENTATIONS, WARRANTIES AND COVENANTS
BNY Mellon
BNY Mellon represents and warrants that: (a) it is duly organized, validly existing and in
good standing in its jurisdiction of organization; (b) it has the requisite corporate power
and authority to enter into and to carry out the transactions contemplated by this
17
BNY MELLON AND CUSTOMER CONFIDENTIAL
13.
13.1
12.2 OtherCompensation
BNY MELLON ANO CTJSTOMER CONFIDENTIAL
Agreement and (c) the individual executing this Agreement on its behalf has the requisite
authority to bind BNY Mellon to this Agreement.
'13.2 Customer
(a) Customer represents and warrants that: (i) it is duly organized, validly existing and
in good standing in its jurisdiction of organization; (ii) it has the requisite corporate
power and authority to enter into and to carry out the transactions contemplated
by this Agreement and (iii) the individual executing this Agreement on its behalf
has the requisite authority to bind Customer to this Agreement.
(b)Customer represents and warrants that either: (i) it is the Named Fiduciary with
authority to appoint a trustee under ERISA and the Plan or (ii) the Named Fiduciary
with the authority to appoint a trustee under ERISA and the Plan is identifled in the
definition of Named Fiduciary qpg[ Customer is acting on behalf of and has
authority to bind the Named Fiduciary to this Agreement.
(c)Customer represents that it maintains and follows procedures to avoid any non-
exempt "prohibited transaction" as defined in Section 406 of ERISA.
LIABILITY
Standard of Care
BNY Mellon will dlscharge its duties under this Agreement (a) with the standard of care
and dlligence that a professional custodian would observe in these affairs taking into
account the prevailing rules, practices, procedures and circumstances in the relevant
market and (b) to the extent applicable to BNY Mellon's duties, with the care and skill
required under ERISA (as applicable, the "Standard of Care"). Exhibit B to this
Agreement sets forth BNY Mellon's statement of fiduciary status.
14.2 Limitation of Liability
(a) BNY Mellon's liability arising out of or relating to this Agreement will be Iimited
solely to those direct damages that are caused by BNY Mellon's failure to perform
its obligations under this Agreement in accordance with the Standard of Care. ln
no event will BNY Mellon be liable for any indirect, incidental, consequential,
exemplary, punitive or special losses or damages, or for any loss of revenues,
profits or business opportunity, arising out of or relating to this Agreement (whether
or not foreseeable and even if BNY Nlellon has been advised of the possibility of
such losses or damages).
(b)BNY Mellon is not a party to, and has no duties or responsibilities under, the Plan
other than those that may be expressly contained in this Agreement. Customer
acknowledges that the Plan does not impose any duties on BNY Mellon other than
those contained in this Agreement.
(c)The duties of BNY Mellon are limited to the Fund, and BNY Mellon has no duties
with respect to assets held by any other Person including any other trustee for the
Plan. Customer agrees that BNY Mellon will not serve as, and will not be deemed
18
14.
14.1
BNY MELLON AND CUSTOMER CONFIDENTIAL
(d)
to be, a co-trustee under any circumstances, including any circumstances under
which BNY Mellon continues to hold Assets under Section 16.5.
Notwithstanding anything to the contrary set forth in this Agreement, in no event
will BNY lvlellon be liable for any losses or damages arising out of any of the
following:
(i) Customer's or an Authorized Person's decision to invest in or hold Assets
in any particular country, including any losses or damages arising out of or
relating to: (A) the financial infrastructure of a country; (B) a country's
prevailing custody and settlement practices; (C) nationalization,
expropriation or other governmental actions; (D) a country's regulation of
the banking or securities industry; (E) currency and exchange controls,
restrictions, devaluations, redenominatrons, fluctuations or asset freezes;
(F) laws, rules, regulations or orders that at any time prohibit or impose
burdens or costs on the transfer of Assets to, by or for the Fund or
(G) market conditions which affect the orderly execution of securities
transactions or affect the value of securities;
(ii) BNY Mellon's reliance on lnstructions;
(iii) BNY lr,4ellon's 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);
(iv) For any matter with respect to which BNY Mellon is required to act only
upon the receipt of lnstructions, (A) BNY l/ellon's failure to act in the
absence of such lnstructions or (B) lnstructions that are late or incomplete
or do not otherwise satisfy the requirements of Section 3.2(e), whether or
not BNY l\4ellon acted upon such lnstructions,
(v) BNY Mellon receiving or transmitting any data to or from Customer or any
Authorized Person via any non-secure method of transmission or
communication selected by Customer;
(vi) Customer's or an Authorized Person's decision to invest in Securities or to
hold Cash in any currency; or
(vii) The insolvency of any Person, including a Subcustodian that is not a BNY
Mellon Affiliate, Depository, broker, bank or a counterparty to the
settlement of a transaction or to a foreign exchange transaction, except as
provided in Section 4.2.
lf BNY Mellon is in doubt as to any action it should or should not take, either
pursuant to, or in the absence of, Instructions, BNY Mellon may obtain the advice
of either reputable counsel of its own choosing or counsel to Customer, and BNY
Mellon will not be liable for acting in accordance with such advice.
(e)
19
BNY [4ELLON AND CUSTOMER CONFIDENTIAL
14.3 Force Majeure
BNY Mellon will not be responsible or liable for any failure or delay in the performance of
its obligations under this Agreement to the extent caused, directly or indirectly, by any
event beyond its reasonable control, including acts of God, strikes or other labor disputes,
work stoppages, acts of war, terrorism, general civil unrest, governmental or military
actions, legal constraint or the interruption, loss or malfunction of utilities or
communications or computer systems. BNY Mellon will promptly notify Customer upon
the occurrence of any such event and will use commercially reasonable efforts to minimlze
its effect.
14.4 lndemnification
Customer and, except to the extent prohibited by applicable law, the Trust will jointly and
severally indemnify and hold harmless BNY Melton from and against all losses, costs,
expenses, damages and liabilities (including reasonable counsel fees and expenses)
incurred by BNY [/ellon, and will defend BNY N/ellon against any third party claim, in each
case arising out of or relating to BNY f\rellon's performance under this Agreement, except
to the extent resulting from BNY Mellon's failure to perform its obligations under this
Agreement in accordance with the Standard of Care. The Parties agree that the foregoing
will include reasonable counsel fees and expenses incurred by BNY l/'lellon in connection
with its successful defense of claims asserted by Customer or relating to BNY Mellon's
performance under this Agreement. BNY Mellon will indemnify and hold harmless
Customer and the Trust from and agaanst all losses, costs, expenses, damages and
liabilities (including reasonable counsel fees and expenses) incurred by Customer and/or
the Trust, and will defend them against any third party claim, in each case arising out of
BNY lvlellon's failure to perform its obligations under this Agreement in accordance wrth
the Standard of Care.
15.
15.1
CONFIDENTIALITY
Confidentiality Obligations
Each Party agrees to use the Confidential lnformation of the other Party solely to
accomplish the purposes ofthis Agreement and, except in connection with such purposes
or as otherwise permitted herein, not to disclose such information to any other Person
without the prior written consent of the other Party. Notwithstanding the foregoing, BNY
Mellon may: (a) use Customer's Confldential lnformation in connection with certain
functions performed on a centralized basis by BNY lrtlellon, its Affiliates and joint ventures
and their service providers (including audit, accounting, risk, legal, compliance, sales,
administration, product communication, relationship management, compilation and
analysis of customer-related data and storage); (b) disclose such information to its
Affiliates and joint ventures and to its and their service providers who are subject to
confidentiality obligations and (c) store the names and business contact information of
Customer's employees and representatives relating to this Agreement on the systems or
in the records of its Affiliates and joint ventures and its and their service providers. ln
addition, BNY Mellon may aggregate information regarding Customer and the Fund on an
anonymized basis with other srmilar client data for BNY Mellon's and its Affiliates'
reporting, research, product development and distribution, and marketing purposes.
20
BNY MELLON AND CUSTOMER CONFIDENTIAL
15.2 Exceptions
The Parties' respective obligations under Seclion 15,'1 will not apply to any such
information: (a) that is, as of the time of its disclosure or thereafter becomes, part of the
public domain through a source other than the receiving Party; (b) that was known to the
receiving Party as of the time of its disclosure and was not otherwise subject to
confidentiality obligations; (c) that is independently developed by the receiving Party
without reference to such information; (d) that is subsequently learned from a third party
not known to be under a confidentiality obligation to the disclosrng Party or (e) that is
required to be disclosed pursuant to applicable law, rule, regulation, requirement of any
law enforcement agency, court order or other legal process or at the request of a
regulatory authority including, but not limited to, the PUC or FERC.
TERM AND TERMINATION16.
16.1 Term
The term of this Agreement will commence on the Effective Date and will continue in effect
until terminated in accordance with the provisions herein.
16.2 Removal or Resignation
BNY Mellon may be removed with respect to all or part of the Fund upon receipt of 60
days'written notice (unless a shorter or longer period is agreed upon) from Customer.
BNY Mellon may resign as trustee hereunder upon 120 days' written notice (unless a
shorter or longer period is agreed upon) delivered to Customer.
16.3 Effect of Removal or Resignation
ln the event of such removal or resignation, a successor trustee will be appointed and
BNY Mellon will transfer the Fund, less such amounts as may be reasonable and
necessary to cover its compensation and expenses, to the successor lrustee. ln the event
Customer fails to appoint a successor trustee within 120 days of receipt of written notice
of resignation or removal, BNY Mellon Teserves the right to seek the appointment of a
successor trustee from a court of competent .iurisdiction. This Agreement will terminate
after a successor trustee has accepted its duties and BNY Mellon has transferred all
Assets then held by BNY lvlellon to the successor trustee. BNY li4ellon will have no duties,
responsibilities or liability with respect to the acts or omissions of any successor trustee.
16.4 Plan Termination
Subject to Section 2 of the Welfare Schedule, if BNY Mellon receives written notice from
Customer of the termination of the Plan, BNY Mellon will distribute all assets, less any
fees and expenses payable from the Plan's allocable portion of the Fund, pursuant to
lnstructions and upon receipt of appropriate documentation. BNY Mellon is entitled to
assume that such distributions are in full compliance with, and not in violation of, the terms
of the Plan or any applicable law.
21
BNY MELLON AND CUSTOMER CONFIDENTIAL
16.5 Assets Not Transferred
BNY Mellon reserves the right to retain any Assets that are not suitable for distribution or
transfer at the time of the termination of the Plan or this Agreement and will hold such
Assets for the benefit of those Persons entitled to such Assets until such time as BNY
Mellon is able to make distribution. Upon the appointment and acceptance of a successor
trustee with respect to the Assets, BNY Mellon's sole duties will be those of a cuslodian
with respect to the Assets not transferred.
16.6 Survival
Any and all provisions of this Agreement which by their nature or effect are required or
intended to be observed, kept or performed after the expiration or termination of this
Agreement will survive the expiration or any termination of this Agreement and remain
binding upon and for the Parties' benefit, including Section 13 (Representations,
Warranties and Covenants); Section 14 (Liability); Section 15 (Confidentiality);
Sections 16.2 through 16.6 (Removal or Resignation; Effect of Removal or Resignation;
Plan Termination; Assets Not Transferred; Survival); and Section'17.5 (Governing
Law/Forum).
17.
17.1
GENERAL
Line ltem and Non-Fund Assets
(a) BNY Mellon may reflect on its books and records certain bookkeeping entries for
Assets including, but not limited to, book-entry Securities and limited partnership
interests that are selected and monitored by an Authorized Person. BNY Mellon
will rely without independent verification on information provided by Customer or
its designee regarding such Assets, including but not limited to positions and
market valuations.
(b)At Customer's request pursuant to lnstructions, subject to BNY tvlellon's approval
and as an accommodation to Customer, BNY Mellon will provide consolidated
recordkeeping services reflecting on statements provided to Customer securities
and other assets not held by BNY Mellon ("Non-Fund Assets"). Non-Fund Assets
will be designated on BNY Mellon's books as "assets not held in custody" or by
other similar designation and will not constitute part of the Fund for purposes of
this Agreement. Customer acknowledges and agrees that, notwithstanding
anything contained elsewhere in this Agreement, (a) Customer will have no
security entitlement against BNY ftilellon with respect to Non-Fund Assets; (b) BNY
Mellon will rely, without independent verrfication, on information provided by
Customer or its designee regarding Non-Fund Assets (including positions and
market valuations) and (c) BNY Mellon will have no responsibility whatsoever with
respect to Non-Fund Assets or the accuracy of any information maintained on BNY
Mellon's books or set forth on accounl statements concerning Non-Fund Assets.
To the extent assets of the Plan are held outside of the Fund pursuant to
lnstructions, Customer will cause such assets to be held in accordance with the
trust, bonding and other requirements of ERISA.
22
BNY MELLON ANO CUSTOMER CONFIDENTIAL
17.2 AssignmenUU.S. Special Resolution Regime Transferability
(a) Neither Party may, without the other Party's prior written consent, assign any of its
rights or delegate any of its duties under this Agreement (whether by change of
control, operation of law or otherwise); provided, however that BNY Mellon may,
without the prior written consent of Customer, assign this Agreement or any of its
rights, or delegate any of its duties hereunder: (a) to any BNY Mellon Affiliate; (b) to
any successor to the business of BNY Mellon to which this Agreement relates, in
which event BNY Mellon agrees to provide notice of such successor to Customer
or (c) as otherwise permitted in this Agreement. Any purported assignment or
delegation by a Party in violation of this provision will be voidable at the option of
the other Party. This Agreement will be binding upon, and inure to the benefit of,
the Parties and their respective permitted successors and assigns.
(b)Notwithstanding anything herein to the contrary, in the event BNY Mellon becomes
subject to a proceeding under a U.S. special resolution regime, the transfer of the
Agreement (and any interest and obligation in or under, and any property securing,
the Agreement) from BNY tvlellon will be effective to the same extent as the transfer
would be effectrve under the U.S. special resolution regime if the Agreement (and
any interest and obligation in or under, and any property securing, the Agreement)
were governed by the laws of the United States or a state of the United States;
and, in the event BNY Mellon or any affiliate becomes subject to a proceeding
under a U.S. special resolution regime, default nghts with respect to the Agreement
that may be exercised against BNY Mellon are permitted to be exercised to no
greater extent than the default rights could be exercised under the U.S. special
resolution regime if the Agreement were governed by the laws of the United States
or a state of the United States.
17.3 Exclusive Benefit
The assets of the Trust allocable to the Plan will be held for the exclusive purposes of
providing benefits to Plan participants and their beneficiaries and defraying the reasonable
expenses of administering the Plan and the Trust. This Agreement will be interpreled in
a manner consistent with that intent and with the intention of Customer that the Trust
hereunder satisfies those provisions of the Code relating to voluntary employees'
beneficiary associations. Except as may be provided by law, the Fund will not be subject
to any form of attachment, garnishment, sequestration or other actions of collection
afforded creditors of Customer or participants or beneficiaries under the Plan, and BNY
Mellon will not recognize any assignment or alienation of benefits unless an lnstruction is
received.
17 .4 Amendment
This Agreement may be amended or modified only in a written agreement signed by an
authorized representative of each Party. For purposes of the foregoing, email exchanges
between the Parties will not be deemed to constitute a written agreement.
23
BNY MELLON ANO CUSTOMER CONFIDENTIAL
17.5 GoverningLadForum
(a) To the extent not preempted by federal law, the substantive laws of the state of
New York (without regard to its conflicts of law provisions) will govern all matters
arising out of or relating to this Agreement, including the establishment and
maintenance of the Fund and for purposes of the Uniform Commercial Code and
all issues specified in Article 2('l) of the Hague Securities Convention.
(b)Each Party irrevocably agrees that all legal actions or proceedings brought by it
against the other Party arising out of or relating to this Agreement will be brought
solely and exclusively before the state or federal courts situated in New York City,
New York. Each Party irrevocably submits to personal jurisdiction in such courts
and waives any objection which it may now or hereafter have based on improper
venue or forum non conveniens. The Parties hereby unconditionally waive, to the
fullest extent permitted by applicable law, any right to a jury trial with respect to
any such actions or proceedings.
17.6 Sovereignlmmunity
To the extent that in any jurisdiction Customer may now or hereafter be entitled to claim,
for itself or its assets, immunity from suit, execution, attachment (before or after judgment)
or other legal process, Customer irrevocably agrees not to claim, and it hereby waives,
such immunity.
17.7 Notices
Other than routine communications in the ordrnary course of providing or receiving
services hereunder (including lnstructions), notices given hereunder will be: (a) addressed
to BNY Mellon or Customer at the address set forth on the signature page (or such other
address as either Party may designate in writing to the other Party) and (b) sent by hand
delivery, by certified mail, return receipt requested, or by overnight delivery service, in
each case with postage or charges prepaid. All notices given in accordance with this
Section will be effective upon receipt.
17 .8 Entire Agreement
This Agreement constitutes the sole and entire agreement among the Parties with respect
to the matters dealt with herein, and merges, integrates and supersedes all prior and
contemporaneous discussions, agreements and understandings between the Parties,
whether oral or written, with respect to such matters.
17.9 Necessary Parties
BNY Mellon reserves the right to seek a judicial or administrative determination as to its
proper course of action under this Agreement. Nothing contained herein will be conslrued
or interpreted to deny BNY lvlellon or Customer the right to have BNY Mellon's account
judicially determined. To the extent permitted by law, only BNY Mellon and Customer will
be necessary parties in any application to the courts for an interpretation of this Agreement
or for an accounting by BNY Mellon, and no participant under the Plan or other Person
having an interest in the Fund will be entitled to any notace or service of process. Any final
24
BNY MELLON AND CUSIOMER CONFIDENTIAL
judgment entered in such an action or proceeding will, to the extent permitted by law, be
conclusive upon all Persons.
17.10 No Third Party Beneficiaries
This Agreement is entered into solely between, and may be enforced only by, the Parties.
Each Party intends that this Agreement will not, and no provision of this Agreement will be
interpreted to, benefit, or create any right or cause of action in or on behalf of, any party
or entity otherthan the Parties, their respective successors and assigns, and participants
and their beneficiaries under the Plan.
17.1'l Counterparts/Facsimile
This Agreement may be executed in any number of counterparts, each of which will be
deemed an original, and said counterparts when taken together will constitute one and the
same instrument and may be sufficiently evidenced by one set of counterparts. This
Agreement may also be executed and delivered by facsimile or email with confirmation of
delivery and/or receipt.
17.12 lnterpretation
The terms and conditions of this Agreement are the result of negotiations between the
Parties. The Parties intend that this Agreement will not be construed in favor of or against
a Party by reason ofthe extent to which such Party or its professional advisors participated
in the preparation or drafting of this Agreement.
17.13 No Waiver
No failure or delay by a Party to exercise any right, remedy or power it has under this
Agreement will impair or be construed as a waiver of such right, remedy or power. A
waiver by a Party of any provision or any breach of any provision will not be construed to
be a waiver by such Party of such provision in any other instance or any succeeding
breach of such provision or a breach of any other provision. All waivers will be in writing
and signed by an authorized representative of the waiving Party.
17.14 Headings
All section and subsection headings in this Agreement are included for convenience of
reference only and will not be considered in the interpretation of the scope or intent of any
provision of this Agreement.
17.15 Severability
lf a court of competent jurisdiction determines that any provision of this Agreement is illegal
or invalid for any reason, such illegality or invalidity will not affect the validity of the
remainder of this Agreement. ln such case, the Parties will negoliate in good faith to
replace each illegal or invalid provision with a valid, legal and enforceable provision that
fulfills as closely as possible the original intent of the Parties.
[Signature page follows]
25
BNY MELLON AND CUSTOMER CONFIDENTIAL
IN WTNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date
THE BANK OF NEW YORK MELLON PACIFICORP
By:
Name:Name
Title:
Date
Title:
Date:
Address for Notice:
The Bank of New York Mellon
Address for Notice:
PacifiCorp
Attention:Attention:
BNY Mellon Welfare Trust (revised 04.09 1g)
Pursuant to Section 10.1 (a):
[ ] as beneficial owner, Customer OBJECTS to disclosure
[ ] as beneflcial owner, Customer DOES NOT OBJECT to disclosure
[ ] BNY Mellon will CONTACT THE INVESTMENT MANAGER with respect to relevant
Securities to make the decision whether it obiects to disclosure
IF NO BOX IS CHECKED,BNY MELLON WILL RELEASE SUCH INFORI\4ATION
UNTIL lT RECEIVES A CONTRARY INSTRUCTION FROIVI CUSTOT\iIER OR
INVESTMENT IMANAGER, AS APPLICABLE,
26
By:
BNY MELLON ANO CUSTOMER CONFIDENTIAL
WELFARE SCHEDULE
ADDITIONAL PROVISIONS FOR WELFARE PLANS
The following additional terms and conditions supplement the Agreement and will in all respects
be considered part of the Agreement.
1.Plan Establishment
(a) The form and nature of the Plan will be established exclusively by Customer;
provided, however, that the Plan will provide for the payment of life, sickness,
accident or other benefits to employees or their dependents or beneficiaries. The
phrase "other benefits" will not, however, include any benefit which is not permitted
pursuant to Section 501 (c)(9) of the Code. Customer will self-insure such welfare
benef'its under the terms and conditions of the Plan.
(b)Customer will be solely responsible for the Plan's compliance with the Code and
ERISA, including the nondiscrimination requirements.
(c)It is the intent of Customer that the Trust be in the form and be in operation at all
times so as to comply with the requirements of Section 501(c)(9) of the Code, and
applicable provisions of ERISA. Customer has taken such action and has filed
such documents, or will in a timely manner take such action and file such
documents, as are required under Section 505(c) of the Code to notify the lnternal
Revenue Service thatthe Trust is applying for recognition as an organization which
is exempt from tax under Section 501(c)(9) of the Code. Customer will be
responsible for taking such action and filing such documents with respect to the
Plan as may be required by the Code or ERISA, and Customer agrees to notify
BNY Mellon promptly of any notiflcation or determination by the lnternal Revenue
Service which adversely affects the Trust's status as a tax-exempt organization.
(d)Assets will not be used for purposes other than the payment of eligible welfare
benefits or the expenses incident thereto or expenses of the Trust.
2.Plan Termination
Upon the Plan's termination pursuant to Section 16.4, the distributed assets will be used,
in accordance with lnstructions, to provide benefits described in Section 501(c)(9) ofthe
Code to Plan participants or their dependents or beneflciaries (or used as provided in 26
C.F.R. Section 1 .501(cxg)-4(d)), except as otherwise provided in regulations of the
Department of Labor promulgated under Section 403(dX2) of ERISA. Until all assets of
the Trust are distributed, the Trust shall continue.
Welfare Schedule-l
BNY MELLON ANO CUSTOi/lER CONFIDENTIAL
EXHIBIT A
CROSS-TRAOING INFORMATION
As part of the Cross-Trading Program covered by the Department of Labor Prohibited Transaction
Exemption ('PTE") 95-56 granted to Mellon Bank, N.A. and its affiliates ("BNY Mellon"), BNY
Mellon is to provide to each affected employee benefit plan the following information:
BNY Mellon has developed and intends to utilize, wherever practicable, a Cross-Trading
Program for lndexed Accounts and Large Accounts as those terms are deflned in PTE 95-
56.
In accordance with PTE 95-56, three "Triggering Events" may create opportunities for
Cross-Trading transactions. They are generally the following (see PTE 95-56 for more
information):
A change in the composition or weighting of the index by the independent
organization creating and maintaining the index;
A recorded declaration by BNY lvlellon that an accumulation of cash in an lndexed
Account attributable to interest or dividends on, and/or tender offers for portfolio
securities equal to not more than .5% of the lndexed Account's total value has
occurred,
Securities will be valued at the current market value for the securities on the date of the
crossing transaction.
Equity Securities - the current market value for the equity security will be the closing price
on the day oftrading as determined by an independent pricing service; unless the security
was added to or deleted from an index after the close of trading, in which case the price
will be the opening price for that security on the next business day after the announcement
of the addition or deletion.
Debt Securities - the current market value of the debt security will be the price determined
by BNY Mellon as of the close of the day of trading according to the Securities and
1
2
3
Exhibit A-l
l. The Existence ofthe Cross-Tradino Proqram
ll. The "Trigqerino Events" Creatinq Cross-Trade Opportunities
A change in the overall level of investment in an lndexed Account as a result of
investments and withdrawals on the lndexed Account's opening date, where the
lndexed Account is a bank collective fund, or on any relevant date for non-bank
collective funds; provided, however, a change in an lndexed Account resulting from
investments or withdrawals of assets of BNY Mellon's own plans (other than BNY
Mellon's defined contributions plans under which participants may direct among
various investment options, including lndexed Accounts) are excluded as a
"Triggering Events"; or
lll. The Pricinq Mechanism Utilized for Securities Purchased or Sold
BNY MELLON AND CUSTOIIER CONFI0ENTIAL
Exchange Commission's Rule 17a-7(b)(4) under the lnvestment Company Act of 1940.
Debt securities that are not reported securities or traded on an exchange, will be valued
based on an average of the highest current independent bids and the lowest current
independent offers on the dayofcross trading. BNYMellonwill use reasonable inquiryto
obtain such prices from at least three independent sources that are brokers or market
makers. lf there are fewer than three independent sources to price a certain debt security,
the closing price quotations will be obtained from all available sources.
Direct cross-trade opportunities will be allocated among potential buyers or sellers of debt
or equity securities on a pro-rata basis. With respect to equity securities, please note BNY
Mellon imposes a trivial dollar amount constraint to reduce excessive custody ticket
charges to participating accounts.
Exhibit A-ll
lV. The Allocation Method and Other Procedures
EXHIBIT B
FIDUCIARY STATUS
As trustee, BNY Mellon reasonably expects that some of the services which it will provide under
the Agreement will be as a fiduciary as defined in Section 3(21) of ERISA and some will be non-
fiduciary in nature. ln its role as a directed trustee, BNY Mellon does not have discretionary
investment management authority, render investment advice for a fee or have discretionary
authority or responsibility in the administration of the covered Plan(s). Nonetheless, as a directed
trustee, BNY Mellon retains certain limited fiduciary responsibilities, such as determining that
directions of a named fiduciary are proper, following processes designed to avoid non-exempt
prohibited transactions, and not knowingly participating in a breach of fiduciary responsibility of
another fiduciary. All of BNY Mellon's custodial duties and responsibilities, including bul not
limited to safekeeping of assets, processing of corporate actions, trade settlement, posting of
income and other receipts, reporting of transactions and reporting of prices are expected to be
performed in a non-fiduciary capacity. Ultimately, whether BNY Mellon is acting as a fiduciary is
dependent upon the terms of the Agreement and the facts surrounding a particular function, With
respect to foreign exchange transactions done through BNY Mellon's Global Markets FX Desk, it
is acting as a principal counterparty on its own behalf and is not acting as a fiduciary or agent for
Customer, any Authorized Person or the Trust.
Exhibit B-l
RABBI TRUST AGREEMENT
by and between
PACIFICORP
and
THE BANK OF NEW YORK MELLON
and known as the
PACIFICORP EXECUTIVE TRUST
us_AcTrvE- 150292248 I .AWS ZEMO
I'ABLE OI CONTENTS
Paqe
SECTION l. - ESTABLISHME:{T OF TRtIST; INSTRUCTIONS........................
l.l . Dellnitions1.2. Establishment of Trust
Authorized lnstmctions.,,1.4. Authcntication
1.5. SecurityProcedure1.6. On-LineSystems..........................
L7 . Payments to Plan Participants......
SECTION 2. _ TRT]ST SERVICES......
2.1. HoldingSecurities......................
2.2. Subcustodians
2.3. Dcpositories
2.4. Agents........2.5. Trr-rstee Responsibility for Payment of Benefits When Company ls Inso|vent..............
2.6. Paymcnts to Company
2.7 . Trustee Actions without Direction2.8. Trustee Aclions with Direction.....
2.9. ForeignExchangeTransactions t0
SECTION 3. _ INVE,STMENT OF THE TRUST FUND
l .3.
6.2. Srvccp
I
1
4
5
5
6
6
6
7
7
7
8
8
8
9
9
.......................... l0
ll
1l3.1. Investment and Administrative Authority
SECTION 4. _ CORPORATE ACTIONS4.1. Not ification4.2. Direction...4.3. Partial Redentptions, Payntcnts, Etc.....
SECTION 5. _ SETTLEMENT OF TRAD8S.,.....................,
5.1. Tradinslnstructions5.2. Contractual Settlement and Income ......
5.3. Trade Settlenrent
SECTION 6. _ DEPOSII'S AND ADVANCES
6. L Dcprrsils .............
ll
ll
il
11
l2ll
l2
12
t2
.. t2
6.3.
6.4.
6.5.
12
l3
l3
l3
l3
l3
t4
t4
Overdrafl s and Indebtcdness ....
Securing Repaynten1.................
Disposition ol'lncomc
SECTION 7. _'I'AXES. REPORTS, RECORDS AND OT}IER MAI'I'ERS.......
7 .1. General Tax Responsibilities...
7.2. Specific'I'axRcsponsibilities..
I .3. Pricing and Othcr Data7.4. Slatemenls and Repo(s
7.5. Revierv of Reports.......
........... l5
........... l5
........... l57.6. Inspection olBooks and Records
US_ACTIVE-1 502922,t8 1 -AWSIZEMO
'7.1. RequiredDiselosttre.........
Ccntralized l' uncti(rns...........
Sanctions
7.8.
'7.9.
t5
t6
16
SECTION 8. _ PROVISIONS REGARDING TRUSTEE....
8.1 . Standard of Care.8.2. Duties.8.3. Limitation on Liability.....
t7
11
t1
20
20
')0
20
21
21
2t
21
22
22
8.4. Force Majeure
8.5. Fees...
......... t7
......... l8
......... l8
......... l8
........ l9
........ l9
........ 19
8.6. lndemnillcation
SECTION 9. - AMENDMENT OR TERMINATION; REMOVAL OR
RESIGNATION; APPOINTMENT OF SUCCESSOR; ASSIGNMENT... I99.1. Amcndment or Tcrmination
9.2. Rernoval or Resignation ......
9.3 Appointrnent ol' Successor.................
9.4. Successors and Assigns/U.S. Special Resolution Regime Transferability ..................209.5. AssignrncntorAlienation......
SEC'TION IO. - ADDITIONAL PROVISIONS
20
l0.l . Linc ltem Asscts
10.2. Appropriate Action
10.3. Coverning Law...............,....
10.4. Sovcreignlrnmunity...........
10.5. Represcntations
10.6. USA PA'lRlOT Act...,.....
....21
....21
10.7. Notices.
10.8. Entire Agreement
10.9. Necessary Parties
10.10. No Third Party Bcneficiarics............
l0.l l. Execution in Counterparts
us AcIlvE,150292248 I,AWS|ZEMO
RABBI TRUST AGREEMENT
AGREEMENT. dated as of December _, 2019 ("Aerecment") between PACIFICORP
(the "ee4p3!y") and THE BANK OF NEW YORK MELLON, a bank organized under the
laws of the state of New York (the *Iru$qq').
WITNESSETH:
WHEREAS, the Company has adopted the nonqualificd defened cornpensation plan(s),
individually and collectively, listcd in Appendix A, as may be arncnded from time to tinre ("PIan");
WHEREAS, the Company has incuned or expects to incur liability undcr the terms of
such Plan with respect to the individuals covered by such Plan;
WHEREAS, the Company previously entered into a Executive'lrust with State Street
Bank and Trust Company (and its predecessors)., efTective March l, 1999, as subsequently
amended (the "Prior Agrcement");
WHEREAS, the Company desires to appoint the Trustee as trustee olthe Trust originally
established by the Prior Agrcement;
WHEREAS, the Cornpany wishes to continue the trust established pursuant to the Prior
Agreement and to contribute to the trust the assets that shall be held therein, subject to the clainrs
ofthe Company's creditors in the event ofthe Company's lnsolvency until (i) paid to Participants
in such manner and at such times as are specilied in the Plan and communicated to the Trustee
pursuant to this Agreement, (ii) applied for the benefit ofthe Company's creditors in accordance
with the terms of this Agreement, and/or (iii) retumed to the Company in accordance with the
terms of this Agreement;
WHEREAS, it is the intention of the parties that this Trust shall constitute an unl'unded
arrangernent and shall not affect the status of thc Plan as an unfunded plan rnaintained tbr tlie
purposc of providing delbrred compensation for a selecl group of management or highly
compensated employees for purposes oIERISA and/or fbr the purpose olproviding benetlts under
an excess bcnefit plan as that term is defined in Scction 3(36) ofERISA to certain employces in
excess of the lirnitations on contributions and benefits irlposed by $415 of the Intemal Revenue
Code of 1986, as amcnded (thc "Code"); and
WHEREAS, it is the intcntion of the Company to make certain contributions to thc Trust
to provide a source of funds to assist it in mecting its liabilitics under the Plan.
NOW, THEREFORE, the parties do hcreby establish the Trust and agrcc that thc Trust
shall bc comprised, held and disposed ofas tbllows:
l. - ESTABLISHMENT OI.- TRUST; INSTRUCTIONS
1,1. Definitions. Whenever used in this Agrcement, the following words shall have thc
rneanings scr forth below:
BNY Mellon COC RahbiTrusl
us acTrvEr50292248 r-AWSIZEMO
"Authorized Instructions" shall have lhc meaning sct lbrth in Scction 1.3.
"BNY Mellon Affiliate" shall mean any direct or indirect subsidiary of The Bank of New
York Mellon Corporation.
"Book-Entrv Svstem" shall mean the U.S. Federal Reserve/Treasury book-entry systern for
receiving and delivering securities, its successors and nominees,
"BgqlESi !gy" shall mean any day on which the Trustec and relevant Depositories and
Subcustodians are open for business.
"Centralized Functions" shall have the meaning set lbrth in Section 7.8.
"Code" shall mean the Intemal Revenue Code of 1986, as amendcd.
"Countrv Risk Events" shall have the meaning set forth in Section 2. l.
"Customer-Related Data" shall have the meaning set lbrth in Section 7.8.
"l)ata Providers" shall mean pricing vcndors, analytics providers, brokers, dcalers,
investmcnl managers, Authorized Persons, Subcustodians, Depositories and any other Person
providing Market Data to the Trustee.
"Data Terms Websi
successor website the address of which is provided by the Trustec to the Company.
'DSpl5ilgry" shall include the Book-Entry Systen.r, the Depository Trust Cornpany,
Euroclear, Clearstream Banking S.A., the Canadian Depository Systern, CLS Bank and any other
securities depository, book-entry system or clearing agency (and their respective successors and
nominees) authorized to act as a securities depository, book-entry systcm or clearing agency
pursuant to applicablc law.
"Desienated Party" shall have the meaning set fbrth in Section 7. I .
"Economic Sanctions Conrpliancc Program" shall nrean those programsJ policies,
procedures and measures designed to ensure compliance with, and prevent violations ol Sanctions
-2-
us acTrvE-150292248.1 AWSTZEMO
"Authorized Person" shall mean any Person authorized by the Company or an Investment
Manager to give Oral or Written lnstructions with respect to the Trust Fund or with respect to
foreign exchange, derivative investments or information and transactional wcb based services
provided by the Trustee or a BNY Mellon Affiliate. Authorized Persons shall include Persons
autho zed by an Authorized Person. Authorized Persons, their signatures and the extent ol'their
authority shall be provided by Written lnstructions. The Company shall causc the Investment
Manager to furnish the Trustee with Written instructions identifying Authorized Persons and their
signatures. The Trustee may conclusively rely on the authority of Authorized Persons until it
receives a Written Instruction 10 the contrary.
"Employer Securities" shall mean stock, warrants, options or other obligations issued by
the Company.
'ERISA" shall mean the Employee Retirement lncome Security Act of'1974, as amended.
"Insolvent" or "LDoLyercy" means (i) the Cornpany is unable to pay its debts as they
become due, or (ii) the Cornpany is subject to a pending proceeding as a debtor under the United
States Bankruptcy Code.
"Invesflnent Manager" shall rnean an investmcnt manager, within the rneaning ol Section
3(38) of ERISA, with respect to the Trust Fund which has been appointed by the Company
pursuant to Section 3.1.
"Losses" shall mean, collcctively, losses, costs, expenses, damages, liabilities and claims.
"Malkg!_Da1g" shall mean pricing or other data related to Securities and other assets.
Market Data includes but is not linrited to security identifiers, valuations, bond ralings,
classification data, and olher data received from invcstmenl managers and others.
"Operational Losses" shall have the rneaning set forth in Scction 2.2.
"Oral lnstructions" shall mean instructions expressed in spoken words received hy the
Trustee.
'Pe{&tpqttQ" shall mean one or nrore individuals covered by the Plan, including the
beneficiaries ol- a deceascd Participant.
"Pavment Schedule" shall mean a written direction that sets forth (i) the amount payable
with respect to each Participant, or other instructions acceptable to the Trustee for determining the
amount so payable; (ii) the form in whioh such amount is to be paid; and (iii) the tirning ofeach
such payment.
"Plan" shall mean the nonqualilied dclerred colnpensation plan(s), individually and
collectively, of the Company listed in Appendix A, as may be amended from time to time.
"Person" or "Persons" shall mean any entity or individual.
"Property" shall nrean any assels held by the Trustee, but shall not include Rcal Estate or
Employer Securities.
"Real Estate" shall mcan dircct interests in real propefty, leaseholds or mincral interests
and shall include assets secured by any ofthe foregoing.
'BeguilgdlArc" shall have the meaning set forth in Section 2.2.
"Sg!q!ip6" 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 ofForeign Assets Control) and the European Union (including any nationaljurisdiction or
-3
us_AclrvE.15029224B 1 AWSTZEMO
member state thereofl, in addition to any other applicable authority with jurisdiction over thc
Company.
"Securities" shall include, without lirnitation, any common stock and other equity
securities, depository receipts, limited partnership and limited liability company interests, bonds,
debentures and other debt securities, notes or other obligations, and any instruments representing
rights to rcceive, purchase, or subscribe for the samc, or representing any other rights or interests
therein (whether represented by a certificate or held in a Depository, with a Suhcustodian or on
the books ofthe issuer) that arc acceptable to the Trustee.
"Subcustodian" shall mean a bank or other financial institution (other than a Depository)
that is utilized by the Trustee or by a BNY Mellon Affiliate, in its discretion, in connection with
the purchase, sale or custody of Securities or cash hereunder.
"Trust Fund" means thc total assets in the Trust.
"Written In tructions" shall mean written communications received by the Trustee by
S.W.l.F.T., overnight delivery, postal services, facsimile transmission, email, on-line
communication system or other method or system, each as specified by the Trustee as availablc
Ibr use in connection rvith the services hereunder.
1.2- Establishmcnt of Trust.
a. The Company hcreby establishcs the Trust with the Trustee, consisting ol
such sums of money and other property as fiom time to time shall be paid and delivered to and
accepted by the Trustee fiom the Company. Nothing shall prcvent the Cornpany lrom making
contributions to the Trust ofcash or property acceptablc to the Trustec in amounts determined by
the Company, in its sole discretion, up to and including thc cntire arnount sullicient to pay thc
Participants under the terms of thc Plan. The Trustce shall not have any right to compel such
additional deposits. Thc Truslee shall have no duty to detcmrine or collect contributions to thc
Trust which may be required under the Plan or this Agreement and shall have no responsibility for
any property until it is actually received and accepted by the Trustee. Thc Company shall have
the sole duty and responsibility lbr the determinalion of thc accuracy or sulliciency of the
contributions to be made under the Plan to the 'frust. All money and other property paid or
delivered to and accepted by the Trustee shall become thc principal of thc Trust to be held,
administered and disposed ofby the Trustee as provided in this Agrccment.
b. The Trust hereby cstablished is irrevocable.
-4
us AcTtvE 150292248 1-AWSIZEMO
"Tax Obligations" shall mean taxes, withholding, certification and reporting requirements,
clairns for exemptions or refund, interest, penalties, additions to tax and other rclated expenses.
"Third Partv Service Provider" sliall mean a selice provider hired by the Trustee to
provide or to assist the Trustee with providing value-added services requested by the Cornpany.
"fruS.!" shall mean the trust created by this Trust Agreernent, and it shall be known as the
Pacifi Corp Executive Trust.
c. The Tnrst is intended to be a grantor trust, of which the Company is the
grantor, within the meaning of subpart E, part I, subchapter J, chapter l, subtitle A of the Code,
and shall be construed accordingly. The Company represents and warrants to the Trustee thal: (i)
the Plan lbr which benefits are or may become payable under this Trust is not subject to Part 4 of
Subtitle B of Title I of ERISA; and (ii) the Plan covcrs, and will cover, only a select group of
management or highly compensated employees as contemplated by Scction 401(a) of ERISA
and/or the Plan is an excess benefit plan as set forth in Section 3(36) ofERISA, such sections of
ERISA bcing further defined by interpretations, opinions and rulings ofthe Department of I-abor.
d. The principal of the Trust and any eamings thereon shall be held separatc
and apart from other funds of the Company and shall be used exclusively lbr (i) the payment of
benefits to the Participants under the Plan; (ii) payments for the benefit olthe general creditors ol'
the Company in the event of its lnsolvency in accordance with the terms ofthis Agreement; and/or
(iii) payments to the Company in accordance with the provisions of this Agreement. The
Parlicipants shall have no prel'erred claim on, nor any beneficial ownership interest in, any assets
of the Trust. Any rights created under the Plan and this Agreenient shall bc mere unsecured
contractual rights ofthc Participants against the Cornpany. Any assets held by the Trust rvill be
subject to the claims ofthe Company's general creditors under federal and state law in the cvent
of lnsolvency.
e. The establishment of the Trust is intended to aid the Company in meeting
its obligations to make payments to Participants under the Plan and shall not alfect the Company's
continuing obligation to pay benefits to Participants under thc Plan except that the Company's
liability undcr the Plan shall be ofl'set by actual payments made on its behalf by the Trustee.
f. In no event shall the Trustee have any duty or responsibility rvith rcspect to
compliance w'ith Section 409A of the Code. The Trustee may conclusively presume that each
instruotion or direction it receives from the Company or an Authorizcd Person is irr compliancc
with Section 409A ofthe Code, including any Payment Schedule.
1.3. Authorized Instructions. 'fhe Trustee shall be entitled to rcly upon any Oral or
Writlen Instructions actually rcceived by the Trustee and reasonably believed by tlre'['rustee to bc
from an Authorizcd Person ("uth ed In ctr "). Thc Company hereby agrees that thc
Authorized Person shall have the rcsponsibility for determining that the Authorized Instructrons
arc in accordance with the terms of the Plan and applicable law. Thc Company agrces that an
Authorized Person shall lonvard to the Trustee Written Instructions confinning Oral Instructions
by the close ofbusiness of the same day that such Oral Instructions are given to the Trustee. The
'l'rustee may act on such Oral Instructions but is not obligated to do so until Written lnstructions
are received. The Company agrees that the fact that Written lnstructions confimring Oral
Instructions are not received or that contrary Written Instructions are received by lhe Trustee shall
in no way affcct the validily or enforceability oftransactions authorized by such Ora[ Instructions
and effected by thc Trustee.
1.4. Authentication. Ilthe Trustee receives Written Instructions that appear on their
fhce to have been transmitted by an Authorized Person via (i) facsimile, email, or other electronic
method that is not secure, or (ii) secure electronic transmission containing applicable authorization
codes, passwords or authentication keys, the Company understands and agrees that the Trustee
-5-
us_AcTrvE- 1 50292248 1-AWStZE MO
cannot dctermine the idcntity of thc actual sender of such Written Instructions and that the Trustce
shall be entitlcd to conclusively presume that such Written Instructions have been senl by an
Authorized Person and are Authorized Instructions. The Corlpany shall be responsible lbr
ensuring that only Authorized Persons transmit such Written lnstructions to the Trustee and that
all Authorized Persons treat applicable user and authorization codes, passwords and authcntication
keys with extrelne care.
1.5. Securitv Procedure. l'he Cornpany acknowledges and agrecs that it is f-ully
infonned of the protcctions and risks associated with the various methods of transmitting Written
lnstructions to the Trustee and that there may be rnore secure methods of transrnitting Written
Instructions than the method selected by the sender. The Company agrees that the security
procedures, if any, to be fbllowed in connection with a transmission of Written Instructions provide
to it a commercially reasonable degree of protection in light of its particular nceds and
circumstances.
1.6. On-Line.Sy!llg!q!. If an Authorized Person clects to transmit Written Instructions
through an on-line communication system off'ered by the Trustee, the use thereofshall be subjcct
to any tenns and conditions contained in a separate written agreement. If an Authorized Person
elects, with the Trustee's prior consent, to transmit Written lnstructions through an on-line
communications servicc owned or operated by a third party, the Company agrees that the Trustee
shall not be responsible or liable for the reliability or availability of any such service.
a. The entitlement of a Participant to benefits under the Plan shall be
deterrnined by the Company or such party as it shall designate under the Plan, and any claim ibr
such benefits shall be considered and reviewed under the procedures set out in the Plan. The
Cornpany shall notifo the Trustee of such determination and shall direct payment, or
commencement ofpaynent, ofsuch benefits. The Company shall have thc sole responsibility tbr
detcrmining the eligibility ol'any Participant lbr bencfits or for determining the amount and
duration ofthe payrnent ofsuch benefits.
c. The Company may make payment ofbenefits directly to the Participants as
they become due undcr the tenns ofthe Plan. The Company shall notify the Trustec pursuant to
Authorized lnstructions of its decision to make payment of benefits directly within a reasonable
time prior to the timc amounts arc payable to Participants. The notification ofthe Trustee by the
Company to make paymcnts directly to a Pafticipant shall be considered a change ofthe Paylent
Schedule affecting such Participant. I'hc Company may direct the l'rustee to rcimburse it liorn
thc Trust Fund providcd it supplies the Truslee with evidence acceptable to thc Trustee of
payments madc by the Company to Participants.
-6
us AcTtvE,1502s2248 1 AVTS|ZEMO
1.7. Pat'mcnts to Plan Participants.
b. The Company shall deliver to the Trustee a Payment Schedule upon the later
ofthe execution ofthis Agreernent or the commencement ofpayments to one or more Participants.
The Company shall be responsible for notifuing the Trustee in writing of any change in the
infonnation on the Payment Schcdule. Thc Trustee shall make payments to the Participants in
accordance with the Payment Schedule most recently provided to it by the Company.
d. Il the principal of the Trust, together with any eamings thereon, are not
sufficient to make a payment ofbenefits in accordance with the terms ofthe Payment Schedule,
the Trustce shall be obligated to make a payment only to the extent that it has principal and earnings
in the Trust. The Trustee shall notity the Company when principal and eamings are not suflcient
to rnake paymcnts as direoted and therc are no longer any assets in the Trust. The Company shall
either (i) immediately make up the balance of each such payment as it I'alls due, (ii) make a
contribution to cover the balance due and any future payments, as it determines in its sole
discretion, or (iii) temrinate the Trust, ifpermissible hereunder, and make f'uture payments directly
from the Company.
2. _ TRT]ST SER\TICES
2.1, Holding Securities. Subjcct to the terms hereof, the Cornpany hereby authorizes
the Trustee to hold any Securities in registered fonn in the name of the Trustee or one o['its
nominecs. Securities held hereunder shall be segregated on the Trustee's books and records fiorn
the Trustee's own property. The Trustec shall be entitled to utilize Subcustodians and Depositories
in connection with its performance hcreunder, Sccurities and cash held through Subcustodians
shall be held subject to lhe tsnns and conditions of thc Trustee's or a BNY Mellon Affiliate's
agrecments u.ith such Subcustodians. Securities and cash deposited by the Trustee in a Depository
will be held subject to the rules, terms and conditions of such Depository. Subcustodians may
hold Securities in Depositories in rvhich such Subcustodians participate. Unless othenvise
required by local lau, or practice or a particular subcustodian agreement, Sccuritics deposited with
Subcirstodians will bc held in a comminglcd account in the name of the Trustee or a BNY Mellon
Affiliate for its clients. The Trustee shall identily on its books and records the Securities and cash
belonging 10 the Trust Fund, whether held directly or indirectly through Depositories or
Subcustodians. In no cvent shall the Trustee be liable for any Losses arising out ofthc holding of
Securities or cash in any particular country, including but not limited to, Losses resulting from
nationalization, expropriation or other govemmental actionst regulation of thc banking or
securities industry; exchange or currency controls or restrictions, devaluations or flucluations or
currency redenomination; availability of Securities or cash or market conditions which prevent the
transf'er of property or the execution of Securities transactions or affect the value of property
Cepuryri*Ee!1l').
2.2. Subcustodians. The Trustec shall cxercisc reasonable care in the selection or
retention, monitoring and continued use of Subcustodians in light of prevailing rules, practices,
procedures and circumstances in the relevant market (the "Required Care").
With respect to any l,osscs incurred by the Trust, thc Company or any other person as a result of
the acts or the failure to acl by any Subcustodiarr ("Onerational Losses," which specifically
excludes Losses arising out ofor relating to Clountry R'isk Events), the Trustee shall be liable for:
a. Operational Losses with respect to Securities or cash held by the Trustee
with or through a BNY Mellon Affiliate; and
-7
us AcrvE-15029224€ 1,AIISTZETVO
In addition, thc Trustee shall be liable lbr repayment to the Trust ofoash credited to the Trust Fund
and credited to any rclevant cash account at the Subcustodian that thc Trustee is not ablc to recovcr
from the Subcustodian (other than as a result ofCountry fusk Events).
2.3. Depositories. The Trustee shall have no liability whatsoever lbr the action or
inaction ofany Depository or lirr any Losses rcsulting fiom tlie maintenance of Securities with a
Depository. T'he Trustee shall be liable to repay cash crcdited to the Trust Fund and credited to
any relevant account at such Depository (other than as a result ofCounlry Risk Events).
2.4. Asents. The Trustce may appoint agents, including BNY Mellon Affiliates, on
such ten.ns and conditions as it deems appropriate to pcrlbnn its services hereundcr. Except as
otherwise specifically provided herein, no such appointment shall discharge the Trustee liom its
obligations hcreunder.
a. At all times during the continuance of this Trust, the principal and income
of the Trust shall be subject to the claims ofthe general creditors of the Company under federal
and state law as set forth below.
i. The Board of Directors or the Chief Executive Officer of the
Company shall inform the Trustee in writing ofthe Company's Insolvency.
ii. Unless the Trustee, in its capacity as trustee and not in its proprietary
capacity, has actual knowledge of the Company's lnsoh,ency, or has received written
notice from the Company or a person claiming to be a creditor and alleging that the
Company is Insolvent, the Trustec shall have no duty to inquire whether the Company is
Insolvent. The Trustee may in all events rely on such evidence conceming the Company's
solvency as may be furnished to the Trustee and that provides the'l-rustee with a reasonable
basis fbr making a determination conceming the Company's solvency. in all cases, the
Trustee shall be entitlcd to conclusively rely upon the written notice of the Board of
Directors or the Chief Exccutive Oflicer of the Company when determining whether the
Company is Insolvent.
iii. If at any time (l) the Trustee has actual knorvledge of the
Company's Insolvency, (2) the Board of Direckrrs or the Chicf Executive Officer of the
Cornpany has notified the Trustee that the Company is lnsolvent, or (3) a pcrson claiming
to be a creditor of the Company alleges in writing to the Trustee that the Company has
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us AcTrvE- 150292248 1 AWSTZEMO
b. Operational Losses with respect to Securities or cash held by the Trustee
with or through a Subcustodian (other than a BNY Mellon Affiliate) to the extent that such
Operational Losses were directly caused by l'ailure on the part ofthe Trustee to exercise
Required Care.
With respect to all cther Opcrational Losses not covered by clauses (a) and (b) above, the Trustee
shall takc appropriate action to recover Operational Losses from such Subcustodian, and Trustec's
solc liability shall be lirnited to amounts recovered from such Subcustodian (exclusive ofcosts and
expenses incurred by the Trustee).
2.5. Trustee Responsibilitv for Pavment of Benelits When Comoanv Is Insolvent.
become Insolvent, thc Trustee shalI discontinue paymcnts to the Participants and shall hold
the assets of the Trust for the benefit ofthe Company's general creditors. Nothing in this
Agreement shall in any way dirninish any rights olthe Participants to pursue their rights as
general creditors ofthe Company rvith respect to benellts due under the Plan or otherwise.
iv. The Trustee shall resurne the payurent ofbenefits to the Participants
in accordance u'ith Section 1.7 only after the Trustee has received s,rittcn notice from thc
Board of Dircctors or the ChiefExecutive Officcr ofthe Company that the Company is not
Insolvent (or is no longer Insolvent).
b. Providcd thal there are sufficient asscts, if the Trustee discontinues the
payment of benelits fronr the Trust pLrsuant to this Section and subsequently resunres suclt
payments, the first payment lirllowing such discontinuance shall include the aggregate amount of
all payments due to the Participants under the terms ofthe Plan (as certified to the Trustee by the
Company) for the period ofsuch discontinuance, less the aggregate amount ofany payments madc
to thc Participants by the Cornpany in lieu of the paymcnts provided for hereunder during any such
period oldiscontinuance.
2.6. Payments to ComDanv. Except as other$,ise specifically provided in this
Agreement, after the Trust has becomc irrevocable, the Company shall not have the right or po\r,er
at any time to direct thc Trustee to return to the Company any or all ofthc Trust assets.
shall:
Receive income and other payments due to the Trust Fundia
b. Carry out any exchanges of Securities or other corporate actions not
requiring discretionary decisions;
c. Facilitate access by thc Company or its designee to ballots or online systems
to assist in the voting ofproxies received for eligible positions ofSecurities held in the Trust Fund
(excluding bankruptcy matters);
d. Forward to the Company or its designee infonnation (or summaries of
inlbmration) that the Trustee reccives liom Depositories or Subcustodians conceming Securitics
in the Trust Iund (excluding bankruptcy matters);
e. Forward to the Company or its designee an initial notice olbankruptcy cases
relating to Securities held in the Trust Fund and a notice of any required action related to such
bankruptcy cases as may be received by the Trustee. No further action or notification related to
the bankruptcy case shall be rcquired;
f. Endorse for collection checks, drafts or other negotiable instruments
received on behalfofthe Trust Fund: and
C. Have the authority to deposit cash in accounts bcaring interest at a
reasonable rate in the banking department ofthe Trustee or an at-filiated banking organization.
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us AcTrvE 150292248 1-AWS ZEMO
2-7. Trustee Actions without Direction. With respect to thc Tnlst Fund, thc Trustee
2.8. Trustee Actions rvith Direction. 'lhc Trustcc shall takc the following actions in
the administration oIthe Trust Fund only pursuant to Authorized Instructions:
a. Settle purchases and sales of Securities and process other transactions,
including, u,ithout Iimitation, free receipts and deliveries. In no event shall the Trustee be directed
to cause the Trust to hold or invest in (i) Employer Sccurities (other than alrounts held in pooled
investment vehiclcs in which the Trust invests) or (ii) Real Estate;
b. Purchase or sell, write or issue, puts, calls, or other options, covered or
uncovered, enter into linancial futures contracts, forward placement contrasts and standby
contracts, swaps, synthetic GICs and other dcrivative investments, and in conncction thercwilh,
custody and pledgc assets ofthe Trust Fund;
c. Settle transactions in foreign exchange or foreign exchange contracts,
provided that the Trustee rnay establish rules or limitations conceming any Ibreign exchange
lacility rnade availahle;
d. Enter into insurance contracts for the purposes of inveshnent or otherwise
and take such other actions with respect to insurance contracls as directed. The Trust shall be the
bencliciary ol'any life insurance policy that is an asset olthc Trust. The 'lrustee shall not be
directcd to loan to any person the procceds ofany bororving against a life insurancc policy;
c. Deliver Securities in the Trust Fund if an Authorizcd Person advises the
Trustee that the Company has entered into a separale securities lending agrecment, provided that
the Company executes such agreements as the 'l'rustee may require in conncction rvith such
arrangcments;
f. Institutc suits or legal proceedings subject 1o the Trustee's receipt of
satisl'actory indernnity lbr lees and expenses; and
g. Take any other action as nccessary to perform hereunder as directed
pursuant to Authorized Instructions.
No such actions shall give this Trust thc objectivc of carrying on a business and dividing
the profits therefrom, within the meaning of Section 301.7701-l of the Procedure and
Administrative Regulations promulgaled pursuant to thc Code.
2.9. Foreign Exchange Transactions. Any lbreign cxchange transaction effected by
the Trustec in connection u,ith this Agreemcnt nray bc entered with the Trustee or a BNY Mellon
Alfiliatc acting as a principal or othcrwise through customary channels. The Company or the
lnvestment Manager may issue standing Written lnstructions rvith rcspect to tbreign exchange
transactions, but the Trustcc may establish rulcs or limitations concerning any foreign exchange
facility rnade available to the Trust Fund. With respect to loreign exchange lransactions done
through The Bank of Neu, York Mellon's Global Markets FX t)esk, it is acting as a principal
counterparty on its olvn behalfand is not acting as a fiduciary or agent for, or in connection rvith,
the Company, the -frust, or an lnvcstnrent Manager.
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us AcTrvEr50292248 1 AWSTZEMO
3. - INVESTMENT OF THE TRUST FL]ND
3.1. Investmcntand AdministrativcAuthority.
a. The Company rnay appoint (and rernovc) one or more Investment
Managers, which may include thc Trustee or an ailliate ofthe Trustee, provided such appointment
of the Trustee or its affiliate is set fbrth and governed by a scparate investrnent rnanagement
agreement. To the extent that assets of the Trust Fund are not so managed by an Investnrent
Manager, the Company shall manage all such assets. The Company and each Investment Manager
shall designate in writing the Authorized Parties who shall represent such party in dealing with the
Trustee. All rights associated with assets olthe Trust shall be excrcised by the Company or an
Investment Manager, whichever has investment discretion over a particular asset, and shall in no
event be exercisable by, or at the discretion of, the Participants.
b. The Trustee, in its capacity as trustee of the -lrust Fund, shall have no
discretionary investment duties with respect to the l'rust Fund. The Trustec shall have no duly to
inquire r.,nhether Authorized Instructions receivcd liorn the Company or an lnvestrnent Manager
are in accordance with the Plan or investment guidelincs, or to review the assets purchased,
retained or sold. The Trustee shall not be responsible or liable fbr any dinrinution ofvalue ofany
securities or othcr property held by the 'I'rustee (or its subcustodians).
c. The Clompany shall have the right at any time, and lrom time to time, in its
sole discretion to substitute assets of equal fair market value, as dctermincd by the Company, for
any asset held by the Trust. The Trustee shall have no obligation to determine or verifli the l'air
market value of such assets.
4. _ CORPORATE ACTIO\S
4,1. Notilication. The 'l'n-rstee shall notify the Company or its designee of rights or
discretionary corporate actions as promptly as practicable under the circurnstances, provided that
the Trustee has actually received notice of such right or discretionary corporate action Iiom the
relevant Subcustodian or Depository. Without actual receipl olsuch noticc, the Trustee shall have
no liability for I'ailing to so notify the Company.
4.2. Direction. Whenever there are voluntary rights that may be excrcised or alternate
courses ol action that may be taken by reason of the Trust Fund's ownership of Securities, the
Company or its designee shall be responsible lbr making any decisions relating thereto and lor
directing the Trustee to act. In order for the Trustee to act, it must receive Authorized Instructions
using the Trustee generated fonn or clcarly marked as instructions, addressed as the Trustee nray
fronr time to time request, by such time as the Trustee shall advise the Company or its designce.
If thc Trustee does not receive Authorized lnstructions by such deadline, the Trustce shall not be
liable for failure to take any action relating to or to exercise any rights conferred by such Securities.
4.3. Partial Redemptions, Paymcnts, Etc, The l'rustee sliall promptly advise the
Company or its designee upon its notilication of a partial redemption, partial payment or other
action with respect to a Security atfecting l'ewer than all such Securities held within the Trust I'und.
Ifthc Trustee, any Subcustodian or Depository holds arry Securitics aflectcd by onc ofthe events
described, the Trustee, the Subcustodian or Depository may select thc Securities to parlicipalc in
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us AcT vE 150292248.1AWS|ZEMO
such partial redemption, partial payrnent or other action in any non-discriminatory manncr that it
customarily uses to make such selection.
5. _ SE'I'TLEMENT OF TRA,DES
5.1, Tradins Instructions. An Authorized Person shall deliver or cause to be delivercd
to the Trustec all inlbrmation necessary fbr the Trustec to settle purchascs or sales. For the purpose
of settling purchases of Sccurities, an Authorized Person shall cause the Trustee to be providcd
witli suftlcient immediately available funds for all such transactions by sucli time and date as
conditions in the relevant market dictate.
5.2. Contraclual Scttlement and lncotne. lhc l-rustce rray, as a matter of
bookkeeping convenience, credit the Trust Fund with thc proceeds from the sale, redemption or
other disposition of Securitics or interest, dividends or other distributions payable on Securities
prior to its actual receipt offinal paymenl therefor. All such credits shall be conditional until the
Trustee's actual receipt offinal payment and may be reversed by the Trustee to the extent that final
payment is not received. Payment with respcct to a transaction will not be "final" until the Trustee
shall have received immediately available funds that under applicable local law, rule or practice
are irreversible and not subject to any security interest, levy or other cncumbrance, and that are
specifically applicable to such transaction.
5.3. Trade S ttlement. Transactions rvill be settled using practices cusbmary in thc
jurisdiction or market where the transaction occurs. The Company understands that rvhen the
Trustee is instructed to deliver Securities against payment, delivery ofsuch Securities and receipt
olpayment therefor rnay not bc completed sirnultaneously. The Company assumes, on behalf of
the Trust, full responsibility for all risks involved in connection with the Trustee's dclivery of
Securities pursuant to Authorized Instructions in accordance rvith local markct practice.
6. _ DEPOSITS AND ADVANCES
6.1. Deposits. The Trustee may hold cash in the Trust Fund or may arrange to lravc
such cash hcld by a BNY Mellon Affiliate or Subcustodian, or with a Depository. Whcre cash is
on deposit with the Trustee, a Subcustodian, a BNY Mellon Alfiliate or a Depository, it rvill be
subject to the terms ofthis Agrcement and such deposit tenns and conditions as may be issued by
such etrtity from time to time.
6,2. Sweep, Cash may be su'ept as directed by the Company or an Investment Manager
to invcstment vehicles offered by the Trustec or to other investment vehiclcs. Cash rnay bc
uninvested u,hen it is received or reconcilcd to an account in the Trust Fund aller the dcadline to
be swcpt into a target vehicle, or when held for short periods of time relatcd lo transaction
settlements. The Company acknowledges that, as part of the'l'rustee's cornpensation, the Trustee
will eam interest on cash balances held by the Trustee, including disburscment balances and
balances arising from purchase and sale transactions, as provided in thc Trustee's indircct
compensation disclosures.
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us AclvE 150292248 1,AWS ZEMO
6.3. Overdrafts an Indebtedness.The Trustec may, in its sole discretion, advance
l'unds in any currency hereunder. If an overdraft occurs in the Trust Fund (including, without
limitation, overdrafts incurred in connection with the settlement of securities transactions, funds
transfers or foreign exchange transactions) or if the Trust is fbr any other reason indebted to the
Trustee, the Trustee shall be entitled, and the Company authorizes the Trustee, to collect from the
Trust the amount of the advance. overdraft or indebtedness, plus accrued interest at a rate then
charged by the Trustee to its institutional trust clients in the relcvant currency.
6.5. Disposition of Incomc. During the term of'this'l'rust, all incornc received by the
Trust, net of expenses and taxcs, shall be accumulated and reinvested except as othenr,ise
specifi cally provided herein.
7. _ TAXES, REPORTS, RE(]ORDS ANI) OTHER MATTERS
7.1. Gcneral-l'axResponsibilities.
a. The Trustee shall prepare and file any U.S. federal tax retum or report and
pay any aurounts due with respect to such U.S. retum or report (based on information in the
Tnstee's possession and to the extent funded) as required by law for a trustee, unless the Company
otherwise directs in writing. In addition to the foregoing, the Trustec shall providc such other
services with respect to Tax Obligations as requested by the Company and agreed to by the Trustee
in u,riting. Except as otherw'ise provided in this Section, the Trustee shall have no obligation or
liability with respect to Tax Obligations, including, without limitation, any obligation to file or
submit retums or reports with any state, foreign or other taxing authorities.
b. The -Irustee may consult with and rely upon thc Company in all matters
pertaining to Tax Obligations. 'fhe Company shall provide and./or shall cause any party it
designates ("Desi nated P ') to providc infonnation necessary for the l-rustcc to lulfill its
obligations with respect to Tax Obligations in a timely manner. The Trustee shall be fully
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6.4. Securing Repavment. [n order to secure rcpayment of the Trust's obligations
(whether or not matured) to the Trustee, the Company on behalfolthe Trust hereby pledgcs and
grants to the Trustee a continuing Iirct lien and security interest in, and right of setoll' against, all
ofthe Plan and Trust's right, title and interest in and to the Trust Fund and the Securities, money
and other Property now or hereafter held in the Trust Fund (including proceeds thereot); provided,
that the Company does not grant the Trustee a security interest in any Securities issued by an
affiliatc of the Trustcc (as defined in Section 23A of the Federal Reserve Act). Thc Company
represents that the Trust owns the Securities in the'frust Fund frec and clear of all liens, claims,
security interests, and the first lien and security interest granted thercin shall be subject to no
setoffs, counterclaims, or other liens prior to or on a parity u,ith it in favor ofany other party (other
than specific liens granted prel'erred status by statutc). The Company shall take any additional
steps required to assure the Trustee of such priority security interest, including notilying third
parties or obtaining their consent. The Trustee shall be entitled to collect liom the Trust Fund
sufficient cash for reimburscment, and iisuch cash is insufficient, to sell the Securities in the Trust
Irund to the extenl necessary to obtain reirnbursement. ln this regard, thc Trustee shall be entitled
to all the rights and rcmedies of a pledgee and secured creditor as if the Trust is in default r"rnder
applicable laws, rules or regulalions as then in effect.
us AcTtvE 1502!12248 1-AWS|ZE MO
protected in relying upon its consultations with the Company and on any inlbrmation provided by
the Cornpany or a Designated Party.
c. To the extent the Company desires a Designated Party to undcrtake
responsibilities with respcct to Tax Obligations, including those Tax Obligations imposed on the
Trustee under any law, thc Company shall inform the Trustee in writing as to whioh Dcsignated
Party or Parties have been delegated such responsibilities and should receive information from the
Trustee. The Trustee shall provide to the Cornpany or a Designated Party on a timely basis any
infbnnation in the Trustee's possession requested by the Company or a Desigr.rated Party to I'ulfill
its rcsponsibilities with respect to a Tax Obligation. The Company shall be solely responsible to
cause the Designated Party to fulfill such responsibilities. The Company shall indemnifu the
'Irustee with respect to any liability conceming Tax Obligations resulting from the actions or
failures to aot of thc Company or the Designated Parry.
7.2. SpecificTaxResponsibilities.
a. Upon receipt of sufficient information, the Trustee shall rnake reasonable
eflbts to fi[e claims for exemptions or refunds with respect to withheld foreign (non-United States)
taxes in instances in which such claims are appropriate.
b. The Truslee shall provide the Company or a Designated Party any data or
materials reccived by the Trustee conceming potential unrelated business taxablc incomc.
Ho*.evcr, the Trustee shall have no responsibility to independently collcct data or informational
rlaterials with respect to unrelated business taxable income received by the Trust or to prepare and
lile any forms to report unrelated business taxable income to the Trust. Pursuant to Authorized
lnstructions, the Trustee shall pay from the Trust the amount ofany unrelated business inconre tax
due, as determined by the Company or a Designated Party.
7.3. Pricins and Other Data. In providing Market Data related to the Trust Fund in
connection rvith this Agrecment, the Trustee is authorized to use Data Providers. The Trustee may
follow Authorized Instructions in providing pricing or other Market Data, evcn ifsuch instructions
direct the Truslee to override its usual procedures and Market Data sources. The Trustee shall be
entitled to rely without inquiry on all Market Data (and all Authorized Instructions rclated to
Market Data) provided to it, and the Trustee shall not be liable for any Losses incurred as a result
ol' Market Data that contains crrors or that is inaccurate or incomplete. The Contpany
ackno*,ledges that cenain pricing or valuation inlbmration may be based on calculated amounts
rathcr than actual market transactions and may not reflect actual market values, and that the
variance betwcen such calculated amounts and actual market values may be matcrial. Thc Trustec
shall not be required to inquirc into thc pricing of any Securities or other assets even though the
Trustee may rcceive different prices for the sarne Securities or assets. Market Data may be the
intcllectual property of the Data Providers, which may impose additional tenns and conditions
upon the Company's use of the Markct Data. The additional terms and conditions can be tbund
on the Data 'Ierms Website. The Conrpany agrecs to those tenns as they are posted in the Data
Terms Wcbsite from time to time. Certain Third Party Service Providers may not utilizc an
Authorized Person's directed price due to system constraints or differing data sources.
Pcrfonnance rleasurernent and analyic sen,ices may use dillerent data sources than those used by
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us AcTtvE- 150292248 1 AWSTZEMO
the Trustee to provide Market Data lor the Trust Fund, which may result in diflerenccs betrveen
custodial reports and perlbrmance measurement and analytic reports.
7.4. Statements and ReDorts. The 'fnrstee shall make available Io the Clorrpany Lr
monthly report ofalltransfcrs to or from the Trust Fund and a statement ofall holdings in the Trust
Fund as of the last Business Day of each month. The Company may elect to receive certain
information electronically through the lnternet to an email address specified by it lbr such purpose.
By electing 10 use the Internet for this purposc, the Company acknowledgcs that such transmissions
are not encryptcd and therefore arc not secure. The Company further acknowledges that there are
other risks inherent in communicating through the Intemet such as the possibility of virus
contamination and disruptions in sen'ice, and agrees that the Trustce shall not be responsible for
any loss, damage or expense suff-ered or incurred by the Company or any person claiming by or
thrortgh the Company as a result ofthc use olsuch methods.
7.6. Inspcction of Books an!-(ecords. l'he Company shall have the right, at its own
cxpense and with reasonable prior written notice to the Trustee, to inspect the Trustec's books and
records directly relating 1o the Trust Fund during normal business hours or to designate an
accountanl to make such inspection.
7.7. Required l)isclosure. \\'ith rcspect to Sccurities that are registercd under the
Securities Exchange Act of 1934, as amended (the 'Exchange Act") or that are issued by an issuer
registercd under the lnvestment Company Act of 1940, as amended, Section 14(b) ofthe Exchange
Act and Rulc l4b-2 promulgated thereunder require the Trustee to disclose to issuers of such
Securities, upon their request, the name, address and securities position of the Trustee's clients
who are%enellcial owners" (as detined in the Exchange Act) olthe issueCs Securities, unless the
beneficial owner objects lo such disclosure. 'l'he Exchange Act defines a "bcneficial owner" as
any person who has or shares thc power to vote a security (pursuant to an agreement or otherwise)
or rvho directs the voting of a security. The Company has designated on the signature page hereof,
rvhether: (1) as beneficial owner, it objects to the disclosure of its name, address and securities
position to any U.S. issuer that rcquests such inlbrmation pursuant to the Exchange Act lbr the
specific purpose of direct communications betwecn such issuer and the Company; or (2) the
Trustee shall oontact the Company's investment managcr with respect to relevant Securities to
make the decision whether it objccts to the disclosure ofthe beneficial ownet's name, address and
securilies position to any U.S. issuer that requests such inlbmration pursuant to the Exchange Act.
With respect to Securities issued outside the United States, the Trustee shall disclose
information requircd by any Depository, the laws and regulations of the relevant jurisdiction, rules
of the relevant stock exchangc or organizational documents of an issuer. The Trustee is also
authorized to supply any infomration regarding the Trust Fund that is required by any law,
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us AcTtvE,150292248.1 AWSTZEMO
7.5. Revierv of Reports. If, rvithin ninety (90) days afier the Trustce makes available
to the Company a statement with respect to the Trust liund, the Cornpany has not given the Trustec
written noticc ofany exception or objection thcreto, the statement shall be deerred to have been
approvcd, and in such case, tlre Trustee shall not be liable for any claims conceming such
statements.
7.9. Sanctions.
a. Throughout the term olthis Agreement, the Company: (i) shall maintain,
and comply with, an Economic Sanctions Compliance Program which includes measures to
accomplish effcctive and timely scanning ofall relevant data lvith rcspect to Participants and with
rcspect to inooming or outgoing Property or transactions; (ii) shall ensure that neither the Company
nor any of its affiliates, directors, officers, employees or Participants (to the extent such
Participants are covered by this Agreement) is an individual or cntity 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 u'hose govemment is, the target of Sanctions; and
(iii) shall not, dircctly or indirectly, use the Fund in any manner that would result in a violation of
Sanctions.
b. Thc Company *,ill promptly provide to the Trustee such information as the
Trustce reasonably requests in connection with the nratters referenced in this Section 7.9, including
inlonnation regarding the Trust Fund, the Prope(y held or to bc held in thc Trust Fund, the source
thereol, and thc identity ofany individual or entity having or claiming an interest therein. 'fhe
Trustee may decline to act or provide services in respect ofany Trust Fund, and take such other
actions as it, in its reasonable discretion, deems necessary or advisable, in connection with the
matters referenced in this Section 7.9. Ifthe Trustec declines to act or provide scrvices as provided
in the preccding sentencc, except as otherwisc prohibited by applicable law or official request, the
Trustee will inform 1he Company as soon as reasonably practicable.
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us_acTrvE-150292248. 1-AWSTZEMO
rcgulation or rules norv or hereafter in effect. The Company agrees to supply the Trustee with any
required infbrmation if it is not otherwise reasonably available to the Trustee.
7.8. Centralized Functions. The Bank of Ncw York Mellon Corporation is a global
Ilnancial organization that provides sen'ices to clients through its alfiliates and subsidiaries in
rnultiple jurisdictions (the "BNY Mellon Group"). Thc BNY Mellon Group may ccnlralize
functions, including audit, accounting, risk, legal, compliancc, sales, administration, producl
cornmunication, relationship managelrent, storage, compilation and analysis of cuslomer-related
data, and other lunctions (thc "Centralized Functions") in one or more affiliates, subsidiaries and
third-party service providers. Solcly in connection with the Centralized Functions, (i) the
Company conscnts to the disclosure ol, and authorizes the Truslee to disclose, information
regarding thc Company and its accounts ("Customer-Rclated Data") to the BNY Mellon Group
and to its third-party service providers u'ho are subjcct to confidentiality obligations with respect
to such intbrmation and (ii) the "l'rustee may store thc names and busincss addresses of thc
Company's employees on the systerns or in thc records ol'the IINY Mellon Group or its servicc
providers. In addition, the BNY Mellon Croup rnay aggregatc Customer-Related Data rvith olher
data collectcd and/or calculaled by thc BNY Mclkrn Croup, and the BNY Mellon Group will own
all such aggregatcd data, provided that thc BNY Mellon Group shall not distribute the aggregated
data in a lbrmat that identi{ies Customer-Rclated Data with thc Company. In addition, the Trustee
may disclosc Customer-Rclated Data as required by law or at thc request olany governmental or
regulatory authority.
8. _ PROVISIONS REGARDI).I(; TRTISTEE
8,1, Standard of Care, 'l'he 'l'rustee shall act r.vith thc carc, skill, prudence and
diligence under the circumstances then prevailing that a prudcnt pcrson acting in likc capacily and
fhmiliar with such matters would use in the conduct of an enterprise of a like charactcr and with
likc aims.
8.2. Duties. The duties of the 'frustcc shall only be those specilically undertaken
pursuant to this Agreement and shall be suhject to such other lirrrits on liability as are sct out hcrein.
8.3. t.imitation on Liabilitv. Notu,ithstandin g an)thing contained elseu,here in this
Agreement, the Trustee's liability hereunder is lirnited as follows:
a. The Trustee shall not be liable tbr Losses except to the extent that such
Losses are a direct result ofthe Trustee's negligence or willful misconduct.
b. The Trustee shall not be liablc to the Company or the Trust for indirect,
consequential or special damages arising in connection with this Agreenrent even if the Trustee
has been advised ofthe possibility ofsuch damagcs.
c. The Trustee is not a party to, and has no duties or responsibilities under, the
Plan other than those that may be expressly contained in this Agreement. The Company
acknowledges that the Plan does not imposc any duties on the Trustee other than those contained
in this Agreement. Notwithstanding anything to the contrary contained elsewhere in this
Agreement, any reference to the Plan or Plan provisions which requires knowledge or
interpretation ofthe Plan shall impose a duty upon the Company to communicate such knowledge
or interprctation to the Trustee. The Trustee shall havc no obligation to know or interpret any
portion ofthe Plan and shall in no way be liable for any proper action taken under this Agreemcnt
contrary to the Plan. Possession ol a copy of'all or a portion of the Plan document shall not
constitute knowledge on the part ofthe 1'rustee;
d. The duties ofthe Trustee shall be limitcd to thc asscts hcld in the Trust Fund,
and the Trustee shall have no duties with respect to assets held by any other person including,
rvithout limitation, any other trustee for the Plan. Thc Company hereby agrees thal the Trustee
shall not serve as, and shall not be deenred to be, a co-trustee under any circumstanccs;
e. The Trustee shall not be responsible lor the title, validity or genuineness of
any Securities or evidence of title thcreto received by it or delivered by it pursuant to this
Agreement or for Securities held hereunder being freely transf'erable or deliverable without
encumbrance in any relcvant markct;
f. '1'he Trustee shall not be responsiblc tbr thc Iailure to receive payn.rent ol,
or the late payment of, income or olher payments due to the 'frust Irund;
S. Thc Trustce shall havc no duty to take any action to collect any amount
payable on Sccurities in default or if payment is ret'uscd aftcr due dcmand and presentmentt
us acr rvE- 150292248 1-AWS|ZEIVO
-11 -
h. The Trustee rnay obtain the advice of counsel and shall be fully protected
with respect to anything done or omitted by it in good laith in conformity with such advice;
i. Ifthe Trustee undertakes or del'ends any litigation or other lcgal procecdings
arising in connection with this Trust, the Company agrees to indemnifu the Trustec against thc
Trustee's costs, expenscs and liabilities (including, without Iimitation, attomeys 'fees and
expenses) relating thereto and to be primarily liablc lbr such payments except to thc extent such
litigation or other legal proceedings are causcd by the negligence or willful misconduct ofTrustee.
lf the Company does not pay such costs, expenses and liabilities in a reasonably timely manner,
the Tmstee rnay obtain payment from the Trust Fund. The Trustee shall have no responsibility or
obligation to use its own proprietary f'unds to cover such costs, expenses and liabilities;
j. The Trustee shall have no duty or responsibility to inquire into, rnake
recon nendations, supervise, or detcrmine the suitability of any ffansactions allecting the Trust
Fund and shall have no liability with respcct to the Cornpany's or an Authorized Pcrson's decision
to invest in Securities or to hold cash in any currency;
k. The Trustee shall have no responsibility ifthe rules or procedures imposed
by Depositories, exchange controls, assct lieezes or other laws, rules, regulations or orders at any
time prohibit or impose burdens or costs on the transf-er of Securities or cash to, by or lbr the 'lrust
Fund; and
l. Thc Trustee shall havc no |iability for any Losses arising from the
insolvency ofany Person, including but not limitcd 1o a Subcustodian, Depository, broker, bank,
and a counterparty to the settlement ofa transaction or to a forcign exchange transaction, except
as providcd in Sections 2.2 and 2.3 above.
8.4. Force Maieurc. Notrvithstanding anything in this Agreemerlt to the contrary, the
Trustce shall not be responsible or liable lbr any failure to pcrlbrm under this Agrccment or for
any Losses to the 'I rust Fund resulting lrom any event beyond the rcasonable conlrol ofthc Trustee.
8.5. Fees. The Trustee shall be paid the fees and charges as may be specifically agreed
upon from time to time and such other l'ees and charges at the'lruslee's standard rates for such
services as may bc applicable. The Trustce shall be reinrburscd lor out-of:pocket expenses that
arc a normal incident of the serviccs provided herein. The Trustec is authorized to charge and
collect from the Trust Fund its lbes and cxpenses unless such l'ees and expenses are paid dircctly
by the Company.
8.6. Indemnification. The Trust and the Company shall jointly and sevcrally
indemnify and hold hannless the Trustee fiom and against all Losses, including reasonable counscl
fces and expenses in connection with third pafly claims and./or in connection with a successful
def-ense of claims asseded by the Company and/or on behalf o{'the 'l'rust, relating to or arising out
ofthe perfonnance ofthe 'I'rustee's obligations under lhis Agrccment, exccpt to the exlent resulting
Iiom thc Trustee's negligence or rvillful misconduct. The l'nrstee shall indemnify and hold
harmless the Company and the Trust from and against all Losses, including reasonable counsel
fees, relating to or arising out ofthc Trustee's negligence or willful misconduct. This provision
shall survive lhe termination of this Agreement.
- 18-
us AcTrvE,150292248 I,AWS|ZEMO
9. - AMENDMENT OR TERMINATIONI REMOVAL OR RESICNATION;
APPOINTMENT OF SUCCESSORI ASSIGNMENT
9.1. Am€ndment or 'fernrination
b. The Company rnay tenninate the Trust prior k) making all benefit payments
ifall Participants entitled to benefits under the Plan havc approvcd thc tcrmination in writing. The
Company shall certifi to the Trustee that it has obtained such rvritten approvals and upon request
provide copies to the Trustee. Upon termination ol'the Trust any assets remaining in the Trust
shall be retumed to the Company.
q.2. Rcmoval or Resisnation. '[hc Trustcc lna y bc rcmovcd with rcspcct to all or part
ofthe Trust Fund upon receipt ofsixty (60) days 'writtcn noticc (unless a shortcr or longcr pcriod
is agreed upon) frorn the Company. The Trustee may resign as Trustee hereunder upon sixty (60)
days 'u,ritten notice (unless a shoter or longer period is agreed upon) delivered to the Company.
In the event ofsuch removal or resignation, a successor trustee will be appointed and the Trustee
shall transfer the Trust Fund, less such amounts as may be reasonable and necessary to cover its
compensation and expenses.
a. In thc event the Company fails to appoint a succcssor trustee within sixty
(60) days ol receipt of u,ritten notice of resignation, the Trustee reserves the right to seek the
appointment of a successor trustee Iiom a court ol'competent jurisdiction. The Trust account
established by the Trustee shall terminate after a successor trustee has accepted its duties and the
Trustee has transferred all assets then held by the Trustee to the successor truslee. Thereafter the
Trustee shall have no duties, responsibilities or liability with respect to this Agreement or the acts
or omissions ofany successor trustee.
b. Any successor trustee must be a bank, a trust conlpany or other party that
nray be granted corporate trustee powers under lbderal or state law. The appointment shall be
effective when accepted in writing by thc ncw trustec, rvho shall havc all ofthc rights and powers
of the former trustee, including ownership rights in the Trust assel.s. The lbrmer trustee shall
execute any instrument necessary or reasonably requested by thc Company or the succcssor trustee
to evidence the transfer. The Trustee shall not be responsible for any action or inaction of any
successor trustee.
c. Thc Trustce need not exarninc thc records and acts ofany prior trustee. The
Trustee shall not be responsible for, and the Corrpany shall indemnify and delend the Trustee
[rom, any claim or liability rcsulting fiom any action or inaction o1'any prior trustcc or f'rom any
othcr past evenl, or any condition existing at the time it becomes 'l'rustee.
- 19-
us_AcIrvE-150292248.1-AWSIZEt\,!O
a. This Agreenrent may be arrrended only by rvrittcn agrccment between the
Company and thc Trustee. The Company shall be responsible lor ensuring that no such
amendment conflicts lvith the terms of thc Plan or makss the Trusl rcvocablc aller il has bccomc
irrevocable in accordanccTvith Section L2(b). At thc rcqucst ofthc Trustec, thc Cornpany shall
provide written confinnation to that efflect.
9.3. Appointment of Successor.
9.4.Successors and Assisns/U.S. Snecial Resolution R egr nre Translerahilit\'
a. This Agreement is not assignable by either the Trustee or the Company
without the prior written consent ofthe other, except that (i) the Trustec may assign this Agreemenl
to any BNY Mellon Affiliate, and (ii) any entity, that shall by merger, consolidation, purchase, or
otherwise, succeed to substantially all the trust business ofthe Trustee shall, upon such succession
and without any appointrnent or other action by the Ciompany, be and becomc successor trustee
hereunder. The Trustee agrees to provide notice ol'such suscessor trustce to thc Company. Any
assignment in violation ofthis provision shall be voidahle at the option ofthc non-assigning party.
This Agreement shall be binding upon, and inure to the benefit of, the Company and the Trustee
and their respective successors and permitted assigns.
9.5. Assignment or Alionation. Ilcnefits payable to Parlicipants under this Agreelncnt
may not be anticipated, assigned (either at law or in equity), alienated, pledged, encumbered or
subjected to attachment, gamishmcnt, levy, execution or other legal or equitable process.
IO. - ADDITIONAL PROVISIONS
10.1. Line Item Assets. The 'l'rustee nlay reflect on its books and records ce(ain
bookkeeping enkies fbr Trust Property including, but not limited to, mutual tirnds, book-entry
securities and limited partnership interests that are selected and monitored by an Authorized
Person. The Trustee shall rely without indepcndent verification on inl'onnation provided by the
Company or ils designce regarding such Trust Property, including but not limited to positions and
market valuations.
10.2. Apnropriate Action. The 'frustee is hereby authorizcd and empowercd kr takc any
action rvith respect to the 'I'rust Fund that it dcerns nccessary or appropriate 10 perform is
obligations specifically set forth in this Agrecment.
10.3. @ygf4lqg-@. This Agreement shall be construed in accordance with and
govemed by the substantive laws of the state of Nov York without regard to its conflict of larvs
provisions. The parties consent to thejurisdiction ofa state or lederal court situated in New York
City, New York in connection with any dispute hereunder. The Cornpany irrevocably waivcs any
objection it may now or hereafter have to venue in such court and any claim that a proceeding
brought in such court has been brought in an inconvenient forum. Thc parties hereby cxpressly
-20-
b. Notwithstandiig anything herein to the contrary, in the event thc Trustee
becomes subject to a proceeding under a U.S. special rcsolution regimc. the transler of the
Agreernent (and any interest and obligation in or under, and any property securing, the Agreement)
llom the Trustee will be effective to the same extent as the transfbr would be effective under the
U.S. special resolution regime if the Agreement (and any interest and obligation in or under, and
any property securing, the Agreement) were govemed by the laws ofthe Unitcd States or a statc
ofthe United States; and, in the event the Trustee or any afliliate becomes subject to a procceding
under a U.S. special resolution regime, default rights with respect to the Agreement that may be
exercised against the Trustee are permitted to be exercised to no greater extent than the default
rights could be exercised under thc U.S. special resolution regirne if the Agreernent were govemed
by the laws ofthe United States or a state ofthe United Statcs.
us AcTtvE 1502922481 AWSZEMO
waive, to the full extent permitted by applicable law, any right to trial by jury with respect to any
judicial proceeding arising from or related to this Agreement.
10.4. Sovereign Immunitv. To the extent that in any jurisdiction thc Company rnay no\\,
or hereafter be entitlcd to claim, lor itselfor its assets, immunity from suit, execution, attachment
(before or after judgrnent) or othcr legal process, the Company irrevocably agrees not to claim,
and hereby waives, such immunity.
10.5. Representations. Each party represents and warrants to the other that it has full
authority to enter into this Agreement upon the terms and conditions hereofand that the individual
exccuting this Agreement on its behalf has the requisite authority to bind such party to this
Agreement, and that the Agreement constitutes a binding obligation ofsuch party enforceable in
accordance with its terms.
10.6. USA PATRIOT Act. The Company hereby acknowledges that thc Trustee is
subject to federal laws, including the Customer Identification Program ("CIP") requiremcnts under
the USA PATRIOT Act and its implementing regulations, pursuant to which the Trustee must
obtain, verifu and record inlbrmation that allows the Trustce to identifu the Company.
Accordingly, prior to opening an account hereunder, the Trustee will ask the Company to provide
certain inlonnation including, but not limited to, the Company's name, physical address, tax
identification number and other infonnation that will help thc Trustee to identifu and verify the
Company's identity such as organizational documents, certificate ofgood standing, license to do
business, or other pertinent identifuing infonnation. The Company agrees that the Trustee cannot
open an account hereunder unless and until the Trustee verifies the Company's identity in
accordance with the Trustee's ClP.
10.7. Notices. Notices shall be in writing and shall be addressed to the Trustcc or the
Company at the address set forth on the signature page or such other addrcss as any party may
designate in writing to the others. All notices shall be effective upon receipt.
10.8. Entire Agreement. This Agreement and any relatcd 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.
10.9. NSS$C!X__E4I!!9,9. The Trustee reserves the right to seek a judicial or
administrative determination as to its proper course of action undcr this Agreement. Nothing
contained herein rvill be construed or interpreted to deny the Trustee or the Company the right to
have the Trustee's account judicially determined. To the extent penritted by law, only the Trustee
and the Ciompany shall be necessary parties in any application to the courts for an interpretation of
this Agreement or lbr an accounting by the Trustee, and no Participant under the Plan or other
person having an interest in the Trust Fund shall be entilled to any notice or service of proccss.
Any final judgment entered in such an action or proceeding shall, to the extent pcrmitted by law,
be conclusive upon all persons.
-21 -
us AcTrvE 150292248 1-AWS ZEMO
10.10. No Third Partv Beneficiaries. Thc provisions ol'this Agreernent are intcnded to
benefit only the parties hercto, their respective successors and assigns, and Participants under thc
Plan. There are no other third party beneficiaries.
10.1 l. Execution in Counteroarts. This Agreement may be executed in any number of
counterparts, each ofwhich shall be deemed an original, and said counterparts when taken together
shall constitute but one and the same instrument and may be sufficiently evidenced by one set of
counterparts.
ISignaturc page follows]
-41
us acTtvE,15o292248 1-AWStZEMO
IN WITNESS WHEREOF, the parties hercto have executed this Agreement as ofthc date
first sct forth above.
Authorized Signer oft
PACIFICORP
Authorized Officer ol:
.I'IIE BANK OF NEW YORK MELI,ON
By:B),:
Namo:
Title:
Date:
Name:
Titlc:
Date:
Address for Notice:
PacifiCorp.
Address for Notice:
The Bank of Nelr, York Mcllon
Attention:Attention:
Pursuant to Section 7.7:
[ ] as beneficial ou'ner, Company OBJECTS to disclosure
[ ] as benelicial owner, Company DOES NOT OIIJECT to disclosure
[ ] Trustcc shall CONTACT THE COMPANY'S INVESTMENT MANAGER with
respect relevant Sccurities to makc the decision whether it objects to disclosure
IF NO BOX IS CHECKED, TRUSTEE SHALL RELEASE SUCH INFORMATION
UNTIL IT RECEIVES A CONTRARY WRITTEN INSTRUCTION FROM THE
COMPANY.
BNY Mellon Non-COC ltabbi Trust (revised l2-07- l 8)
us AcT vE- I50192248 1-AWS ZEMO
APPENDIX A
[,ist of Covered Plans
PacifiCorp Supplemental Executive Retirement Plan
PacifiCorp Compensation Reduction Plan
PacifiCorp Deferred Compensation Payment Plan
us AcTtv€,1502s2248 I,AWStZEMO
A-l
BNY METLON
TRUST AGREEMENT
By and Between
THE BANK OF NEW YORK MELLON
And
BRIDGER COAL COMPANY
For the
BRIDGER RECLAMATION TRUST
BNY MELLON ANO CUSTOMER CONFIDENTIAL
BNY MELLON AND CUSTOMER CONFIDENTIAL
TABLE OF CONTENTS
1
2
DEFINITIONS 1
3
3
4
5
5
t)
7
7
7
7
8
8
8
8
8II
9
o
9I
APPOINTMENT OF TRUSTEE; THE FUND........
2.1
2.2
Appointment of Trustee...........
Contribulions; lnvestment of tne iunJ
3 AUTHORIZED PERSONS AND INSTRUCTIONS; ELECTRONIC ACCESS....3.1 Authorized Persons.............3.2 lnstructions........3.3 BNY Mellon Actions Without Instructions........3.4 FundsTransfers..........3.5 Electronic Access...............
4 SUBCUSTODIANS, DEPOSITORIES AND AGENTS4.1 Use of Subcustodians and Depositories..........4.2 LiabilityforSubcustodians...........4.3 Liability for Depositories4.4 Use of Agents....
5 CORPORATE ACTIONS5,1 Notification....,,....5.2 Exercise of Rights5.3 Partial Redemptions, Payments, Etc
6.SETTLEM ENT6.1 Settlementlnstructions..6.2 SettlementFunds..........6.3 SettlementPractices.....
7.TAX MATTERS.II7.1 Tax Obligations ............
7 .2 Responsibility for Taxes
7 .3 Payments
10
'10
o-CREDITS AND ADVANCES 10
10
10
10
11
8.1
o.t
8.3
8.4
Contraclual Settlement and
Advances.-........
Repayment........
Securing Repayment..........
lncome
o STATEMENTS; BOOKS AND RECORDS; THIRD PARTY DATA9.1 Statements9.2 Books and Records.....9.3 ThirdPartyData..................
11
11
11
12
10. DISCLOSURES 13
13
13
14
10.1 Required Disc|osure..................10.2 ForeignExchangeTransactions
10 3 lnvestment of Cash ...................
REGULATORY MATTERS
11.1 USA PATRIOT Act.
11.14
14
BNY MELLON ANO CUSTOMER CONFIDENTIAL
TABLE OF CONTENTS
(continued)
11.2 Sanctions 14
12. COMPENSATION 15
12.1 Fees and Expenses...........12.2 Other Compensation ................ ..
REPRESENTATIONS, WARRANTIES AND COVENANTS
.. 15
.. 15
13.15
tc
tf,
13.1 BNY Mellon
13.2 Customer....
16
16
16
17
14.1 Standard of Care.....14.2 Limitation of Liability
14.3 Force Majeure -........14.4 lndemniflcation 17
't 5.
16.TERM AND TERMINATION16.1 Term,.......................
18
18
19
16.2 Removal or Resignation'16.3 Effect of Removal or Resignation
Survival 19
19
19
19
20
20
20
17 .1
17.2
17.3
17.4
17.5
17.6
Line ltem Assets...............
AssignmenUU.S. Special Resolution Regime
Amendment .......
Governing Law/Forum........
Sovereign 1mmunity............
Notices ..............
Transferability
.20
.21
.21
.21
.21
.21
.zl
17.7 Entire Agreement ....
17.8
17.9
17.10
17 .11
17.12
17.13
17.14
Necessary Parties ...............
No Third Party Beneficiaries
Counterparts/Facsimile .......
lnterpretation
No Waiver.....,,...
Headings
Severability........
Grantor TRUST SCHEDULE
1
2
3
Trust Type; Representations and Warranties
Establishment and Operation of the Trust....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I
Additional Limitation of Liability and Predecessor Trustees.......................................1
16.4
ii
BNY MELLON AND CUSIOMER CONFIDENTIAL
TRUST AGREEMENT
This Agreement is made and entered into as of the latest date set forth on the signature
page hereto (the "Effective Date") by and between THE BANK OF NEW YORK MELLON, a
bank organized under the laws of the state of New York ("BNY Mellon"), and BRIDGER COAL
COMPANY, a joint venture between Pacific Minerals, lnc. and ldaho Energy Resources Co.
("Customer"). BNY Mellon and Customer are collectively referred to as the "Parties" and
individually as a "Party".
RECITALS
WHEREAS, Customer has established or desires to establish a trust, pursuant to which
assets will be held to provide a source of funds to assist Customer in meeting its liabilities under
the Reclamation Fund Agreement;
WHEREAS, Customer and State Street Bank and Trust Company, as successor to
Bankers Trust Company of California, N.A. entered into a Trust Agreement dated January 1,
2000 (the "Prior Agreement"), which restated the Trust Agreement between Customer and
First Security Bank of Rock Springs dated January 1 , 1989 (the "Original Agreement"); and
WHEREAS, Customer wishes to appoint BNY Mellon as the trustee of the trust
established by the Original Agreement and currently existing under the Prior Agreement, and
BNY Mellon is willing to provide such services on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and intending to be legally bound, the Parties agree to amend and restate the Prior
Agreement as follows.
1.DEFINITIONS
Whenever used in this Agreement, the following words have the meanings set forth
below:
"Affiliate" means, with respect to any entity, any other entity that directly or indirectly
controls, is controlled by or under common control with such entity.
"Agreement" means, collectively, this Trust Agreement, the Grantor Trust Schedule and
any Exhibits hereto and any other documents incorporated herein by reference.
"Assets" means any assets acceptable to BNY ltilellon, excluding any stock, warrants,
options or other obligations issued by Customer or direct interest in real property,
WHEREAS, Customer and its subsidiaries or affiliates have certain obligations to reclaim
mining sites pursuant to the Reclamation Fund Agreement dated as of January 1, 1989 among
Customer, Pacific Minerals, lnc., and ldaho Energy Resources Co. as Sellers, and Pacificorp,
and ldaho Power Company as Buyers (the "Reclamation Fund Agreement");
"Act" has the meaning set forth in Section 10.1 (a).
BNY MELLON AND CUSTOMER CONFIDENTIAL
leaseholds or mineral interests, which Customer may transfer to BNY Mellon's care, to
be held in trust in accordance with this Agreement.
"BNY Mellon" has the meaning set forth in the introductory paragraph
"Cash" means the money and currency of any jurisdiction which BNY Nlellon accepts for
deposit in the Fund.
"Code" means the lnternal Revenue Code of 1986, as amended
"Gonfidential lnformation" means, with respect to a Party, the terms of this Agreement
and all non-public business and financial information of such Party (including, with
respect to Customer, information regarding the Fund and including, with respect to BNY
Mellon, information regarding its practices and procedures related to the services
provided hereunder) disclosed to the other Party in connection with this Agreement.
"Customer" has the meaning set forth in the introductory paragraph.
"Effective Date" has the meaning set forth in the introductory paragraph.
"Electronic Access Services" means such services made available by BNY Mellon or a
BNY Mellon Affiliate to Customer to electronically access information relating to the Fund
and/or transmit I nstructions.
"Fund" means the total Assets in the Trust established pursuant to this Agreement
"Grantor Trust Schedule" means the Grantor Trust Schedule attached hereto that
contains addrtional provisions for non-ERISA grantor trusts.
"lnstructions" means, with respect to this Agreement, instructions issued to BNY Mellon
by way of (a) one of the following methods (each as and to the extent specified by BNY
Mellon as available for use in connection with the services hereunder): (i) the Electronic
Access Services; (ii) third-party electronic communication services containing, where
applicable, appropriate authorization codes, passwords or authentication keys, or
otherwise appearing on their face to have been transmitted by an Authorized Person or
(iii) third-party institutional trade matching utilities used to effect transactions in
accordance with such utility's customary procedures or (b) such other method as may be
agreed upon by the Parties and that appear on their face to have been transmitted by an
Authorized Person.
2
"Authorized Person" has the meaning set forth in Section 3.1.
"Data Terms Website"
http!/wvvw.bnymellon.com/products/assetservicing/vendoragreement.pdf or
successor website the address of which is provided by BNY Mellon to Customer.
means
any
"Depository" means the Depository Trust Company, Euroclear, Clearstream Banking
S.A,, the Canadian Depository System, CLS Bank and any other securities depository,
book-entry system or clearing agency authorized to act as a system for the central
handling of securities pursuant to the laws of the applicable jurisdiction, and any
successors to, and/or nominees of, any of the foregoing.
BNY MELLON AND CUSTOMER CONFIOENTIAL
"lnvestment Manager" means an investment manager with respect to the Fund that has
been appointed pursuant to Section 2.2(b).
"Market Data Providers" means vendors and analytics providers and any other Person
providing lvlarket Data to BNY Mellon.
"Oral lnstructions" means, with respect to this Agreement, spoken instructions issued
to BNY Mellon and reasonably believed by BNY Mellon to be from an Authorized
Person.
"Party" or "Parties" has the meaning set forth in the introductory paragraph.
"Person" or "Persons" means any entity or individual.
"Sanctions" means all economic sanctions laws, rules, regulations, executive orders
and requirements administered by any governmental authority of the United States
(including the United States Office of Foreign Assets Control) or any other applicable
domestic or foreign authority with jurisdiction over Customer.
"Subcustodian" means a bank or other financial institution (other than a Depository)
that is selected and used by BNY Mellon or a BNY Mellon Affiliate in connection with the
settlement of transactions and/or custody of Assets hereunder, and any successors to,
and/or nominees of, any of the foregoing,
"Tax Obligations" means taxes, withholding, certiflcation and reporting requirements,
claims for exemptions or refund, interest, penalties, additions to tax and other related
expenses.
"Third Party Data" has the meaning set forth in Section 9.3(a)
"Trust" means the trust created by this Agreement, known as the Bridger Reclamation
Trust.
2. APPOINTMENT OF TRUSTEE; THE FUND
2.1 Appointment of Trustee
(a) The Trust is intended to be a grantor trust, of which Customer is the grantor,
within the meaning of subpart E, part l, subchapter J, chapter 1, subtitle A of the
3
"Market Data" means pricing, valuations or other commercially sourced data applicable
to any Security, Market Data also includes security identifiers, bond ratings and
classification data.
"Securities" means all (a) debt and equity securities and (b) instruments representing
rights or interests therein, including rights to receive, subscribe to or purchase the
foregoing; in each case as may be agreed upon from time to time by BNY Mellon and
Customer and which are from time to time delivered to or received by BNY Mellon and/or
any Subcustodian for deposit in the Fund.
"Standard of Care" has the meaning set forth in Section 14.1.
BNY MELLON AND CUSTOMER CONFIOENTIAL
Code, and will be construed accordingly- No action of BNY Mellon will give this
Trust the objective of carrying on a business and dividing the profits therefrom,
within the meaning of Treasury Regulation Section 301 .7701-1 .
(b)Customer hereby appoints BNY Mellon as trustee for the Assets and BNY Mellon
hereby accepts such appointment. The Parties acknowledge and agree that
BNY Mellon's duties pursuant to such appointment will be limited solely to those
duties expressly undertaken pursuant to this Agreement.
Notwithstanding the foregoing, BNY Mellon has no obligation:(c)
(i) With respect to any Assets until they are actually received and accepted
by BNY Mellon in the Fund;
(ii)To inquire into, make recommendations, supervise or determine the
suitability of any transactions affecting the Fund; or
To determine the adequacy of title to, or the validity or genuineness of,
any Assets received by it or delivered by it pursuant to this Agreement.
(iii)
(d)Cash held hereunder may be subject to additional deposit terms and conditions
issued by BNY Mellon or the applicable Subcustodian from time to time, including
rates of interest and deposit account access.
(e)lf Customer engages in securities lending activities, such activities will be subject
to certain additional and/or modified terms to be set forth in a separate written
agreement between Customer and BNY Mellon or a BNY lvlellon Affiliate.
2.2 Contributions; lnvestment of the Fund
(a) BNY Mellon will accept contributions that are paid to it by Customer in
accordance with this Agreement. Such contributions will be in Cash or in such
other form as may be acceptable to BNY Mellon. BNY Mellon will have no dutyto determine the amount or sufficiency of contributions, nor to collect
contributions due, under Reclamation Fund Agreement or this Agreement.
Customer represents that Customer has the sole duty and responsibility for the
determination of the accuracy or sufficiency of the contributions to be made to
the Fund, whether due under the Reclamation Fund Agreement or under any
governing laws, agreements, court orders or otherwise.
(b)Customer has the authority and responsibility to manage the assets of the Fund.
ln carrying out this responsibility, Customer may appoint (and remove) one or
more lnvestment [vlanagers, which may include BNY lvlellon or a BNY lVlellon
Affiliate, if and to the extent set forth in a separate agreement executed by BNY
l/ellon or such Affiliate. BNY Mellon will not be responsible under this
Agreement, directly or indirectly, for the investment or reinvestment of the assets
of the Fund. lf Customer appoints an lnvestment Manager, BNY Mellon will
place in a separate subaccount those assets over which the lnvestment Manager
has discretion and control.
4
3. AUTHORIZED PERSONS AND INSTRUCTIONS; ELECTRONIC ACCESS
3.1 Authorized Persons
Promptly following the Effective Date, Customer and/or its designee (including any of
Customels lnvestment fvlanagers) will furnish BNY tvlellon with one or more written lists
or other documentation acceptable to BNY Mellon specifying the names and titles of, or
otherwise identifying, all Persons authorized lo act on behalf of Customer with respect to
this Agreement (each, an "Authorized Person"). Customer will be responsible for
keeping such lists andior other documentation current, and will update such lists and/or
other documentation, as necessary from time to time, pursuant to lnstructions.
3.2 lnstructions
(a) Except as otherwise expressly provided in this Agreement, BNY Mellon will have
no obligation to take any action hereunder unless and until it receives
lnstructions issued in accordance with this Agreement.
(b)Customer will be responsible for ensuring that (i) only Authorized Persons issue
lnstructions to BNY Mellon and (ii) all Authorized Persons safeguard and treat
with extreme care any user and authorization codes, passwords and
authentication keys used in connection with the issuance of lnstructions.
(c)Where Customer may or is required to issue lnstructions, such lnstructions will
be issued by an Authorized Person. The Authorized Person (and not BNY
Mellon) will be responsible for determining that lnstructions are in accordance
with the terms of all governing agreements, court orders, and applicable law.
(d)BNY Mellon will be entitled to deal with any Authorized Person until notified
otherwise pursuant to lnstructions, and will be entitled to act and rely upon any
Instruction received by BNY Mellon-
(e)All lnstructions must include all information necessary, and must be delivered
using such methods and in such format as BNY Mellon may require and be
received within BNY lvlellon's established cut-off times and otherwise in sufficient
time, to enable BNY lt4ellon to act upon such lnstructions.
(f)BNY Mellon may in its sole discretion decline to act upon any lnstructions that do
not comply with requirements set forth in Section 3.2(e) or that conflict with
applicable law or regulations or BNY Mellon's operating policies and practices, in
which event BNY Mellon will promptly notify Customer.
(s)Customer acknowledges that while it is not part of BNY Mellon's normal practices
and procedures to accept Oral lnstructions, BNY Mellon may in certain limited
circumstances accept Oral lnstructions. ln such event, such Oral lnstructions will
be deemed to be lnstructions for purposes of this Agreement. An Authorized
Person issuing such an Oral lnstruction will promptly confirm such Oral
lnstruction to BNY Mellon in writing. Notvvithstanding the foregoing, Customer
agrees that the fact that such written confirmation is not receaved by BNY Mellon,
or that such written confirmation contradicts the Oral lnstruction, will in no way
BNY MELLON AND CUSTOi'ER CONFIDENTIAL
5
BNY MELLON AND CUSTOMER CONFIOENTIAL
affect (i) BNY lvlellon's reliance on such Oral lnstruction or (ii) the validity or
enforceability of transactions authorized by such Oral lnstruction and effected by
BNY tvlellon.
(h)Customer acknowledges and agrees that it is fully informed of the protections
and risks associated with the various methods of transmitting lnstructions to BNY
Mellon and that there may be more secure methods of transmitting lnstructions
than the method selected by the sender. Customer agrees that the security
procedures, if any, to be followed by Customer and BNY Mellon with respect to
the transmission and authentication of lnstructions provide to Customer a
commercially reasonable degree of protection in light of the Fund's particular
needs and circumstances.
3.3 BNY Mellon Actions Without lnstructions
Notwithstanding anything to the contrary set forth in this Agreement, Customer hereby
authorizes BNY Mellon, without lnstruclions, to take any administrative or ministerial
actions with respect to the Fund that it deems reasonably necessary or appropriate to
perform its obligations under this Agreement, including the following:
(a) Receive income and other payments due to the Fund; provided, however, that
BNY Mellon will have no duty to pursue collection of any amount due to the
Fund, including for Securities in default, if such amount is not paid when due;
(b) Carry out any exchanges of Securities or other corporate actions not requiring
discretionary decisions;
(c)Facilitate access by Customer or its designee to ballots or online systems to
assist it in the voting of proxies received by BNY Mellon (in its capacity as
custodian) for eligible positions of Securities held in the Fund (excluding
bankruptcy matters), all of which will be exercised by Customer or its designee
and not by BNY Mellon;
(d)Forward to Customer or its designee information (or summaries of information)
that BNY Mellon receives (in its capacity as custodian) from Depositories or
Subcustodians concerning Securities in the Fund (excluding bankruptcy matters);
(e)Forward to Customer or its designee an initial notice of bankruptcy cases relating
to Securities held in the Fund and a notlce of any required action related to such
bankruptcy cases as may be received by BNY Mellon (in its capacity as
custodian). BNY [/ellon will take no further action nor provide further notification
related to the bankruptcy case;
(f)
(s)Endorse for collection checks, drafts or other negotiable instruments received on
behalf of the Fund;
6
Unless otherwise elected by Customer, and in accordance with BNY Mellon's
standard terms and conditions, provide class action filing services for settled
claims related to Securities with industry recognized identiflers;
BNY MELLON AND CUSTOMER CONFIDENTIAL
(h)Deposit Cash in accounts bearing interest at a reasonable rate in the banking
department of BNY lilellon or an affiliated banking organization; and
(i)Execute and deliver, solely in its capacity as custodian, certificates, documents
or instruments incidental to BNY Mellon's performance under this Agreement.
3.4 Funds Transfers
With respect to each lnstruction for a Cash transfer, when the lnstructron is to credit or
pay a party by both a name and a unique numeric or alpha-numeric identifier (e.9., IBAN
or ABA or account number), BNY Mellon and any other bank participating in the Cash
transfer will be entitled to rely solely on such numeric or alpha-numeric identifier, even if
it identifies a party different from the party named. Such reliance on an identifier will
apply to beneficiaries named in the lnstruction, as well as any financial institution that is
designated in the lnstruction to act as an intermediary in such Cash transfer. To the
extent permitted by applicable law, the parties will be bound by the rules of any transfer
system used to effect a Cash lransfer under this Agreement.
3.5 Electronic Access
lf Customer elects to use the Electronic Access Services in connection with this
Agreement, the use thereof will be subject to any terms and conditions contained in a
separate written agreement between the Parties or their Affiliates. lf an Authorized
Person elects, with BNY Mellon's prior consent, to transmit lnstructions through a third-
party electronic communications service, BNY Mellon will not be responsible or liable for
the reliability or availability of any such service.
4. SUBCUSTODIANS, DEPOSITORIES AND AGENTS
4.1 Use of Subcustodians and Depositories
(a) BNY Mellon will be entitled to utilize Subcustodians and Depositories in
connection with its performance hereunder.
(b)BNY Mellon will only utilize Subcustodians that have entered into an agreement
with BNY Mellon or a BNY Mellon Affiliate, and Assets held through a
Subcustodian will be held subject to the terms and conditions of such
Subcustodian's respective agreement.
(c)Assets deposited in a Depository will be held subject to the rules, procedures,
terms and conditions of such Depository. Subcustodians may hold Assets in
Depositories in which such Subcustodians participate.
(d)Unless otherwise required by local law or practice or a particular Subcustodian
agreement, Assets deposited with Subcustodians or Depositories may be held in
a commingled account in the name of, as applicable, BNY Mellon, a BNY Nlellon
Affiliate or the applicable Subcustodian, for its clients.
7
BNY MELLON AND CUSTOMER CONFIDENTIAL
4.2 Liability for Subcustodians
(a) BNY Mellon will exercise the Standard of Care in selecting, retaining and
monitoring Subcustodians.
(b) With respect to Assets held by a Subcustodian, BNY Mellon will be liable to
Customer for the actrvities of such Subcustodian under this Agreement to the
extent that BNY Mellon would have been liable to Customer under this
Agreement if BNY Mellon had performed such activities itself in the relevant
market in which such Subcustodian is located; provided, however, that with
respect to Securities held by a Subcustodian that is not a BNY lvlellon Affiliate:
(i) BNY Mellon's liability will be limited solely to the extent resulting directly
from BNY Mellon's failure to exercise the Standard of Care in selecting,
retaining and monitoring such Subcustodian; and
(ii) To the extent that BNY Mellon is not liable pursuant to Section 4.2(bxi),
BNY Mellon's sole responsibility to Customer will be to: (A) take
reasonable and appropriate action to recover from such Subcustodian,
and (B) forward to the Trust any amounts so recovered (exclusive of
costs and expenses incurred by BNY Mellon in connection therewith).
Liability for Depositories
BNY Mellon will have no responsibility or liability for the activities of any Depository
arising out of or relating to this Agreement or any cost or burden imposed on the transfer
or holding of Assets held with such Depository.
Use of Agents
BNY Mellon may appoint agents, including BNY Mellon Affiliates, on such terms and
condltions as it deems appropriate to perform its obligations hereunder. Except as
otherwise specifically provided herein, no such appointment will discharge BNY Mellon
from its obligations hereunder.
CORPORATE ACTIONS
Notification
BNY [,4ellon will notify Customer or its designee of rights or discretionary corporate
actions as promptly as practicable under the circumstances, provided that BNY Mellon
has actually recejved, in its capacity as custodian, notice of such right or discretionary
corporate action from the relevant issuer, or from a Subcustodian, Depository or third
party vendor. Without actual receipt of such notice by BNY Mellon, BNY Mellon will
have no responsibility or liability for failing to so notify Customer.
Exercise of Rights
Whenever there are voluntary rights that may be exercised or alternate courses of action
that may be taken with respect to Securities in the Fund, Customer or its designee will
be responsible for making any decisions relating thereto and for instructing BNY Mellon
4.3
4.4
5.
5.1
I
5.2
BNY MELLON AND CUSTOMER CONFIDENTIAL
to act. ln order for BNY Mellon to act, Customer must issue lnstructions either: (a) using
the BNY Mellon-generated form provided along with BNY Mellon's notice under
Section 5.1 or (b) if Customer is nol using such BNY Mellon-generated form, clearly
indicating, by reference to the options provided on such BNY Mellon-generated form,
which action Customer is electing. Each such lnstruction will be addressed as BNY
Mellon may from time to time request and issued by such time as BNY Mellon will advise
Customer or its designee.
5.3 Partial Redemptions, Payments, Etc.
BNY Mellon will advise Customer or its designee upon its notification, in its capacity as
custodian, of a partial redemption, partial payment or other action with respect to a
Security affecting fewer than all such Securities held within the Fund. lf BNY Mellon or
any Subcustodian or Depository holds any Securities affected by one of the events
described, BNY Mellon or such Subcustodian or Depository may select the Securities to
particapate in such partial redemption, partial payment or other action in any non-
discriminatory manner that it customarily uses to make such selection.
6. SETTLEMENT
6.1 Settlementlnstructions
Promptly after the execution of each Securities transaction, Customer will issue to BNY
Mellon lnstructions to settle such transaction. Unless otherwise agreed by BNY lvlellon
and subject to Section 8.1, Assets will be credited to the Fund only when actually
received by BNY lvlellon.
6.2 Settlement Funds
For the purpose of settling a Securities transaction, Customer will provide BNY Mellon
with sufficient immediately available funds or Securities, as applicable, by such time and
date as is required to enable BNY Mellon to settle such transaction in the country of
settlement and in the currency to be used to settle such transaction.
6.3 SettlementPractices
Securities transactions will be settled using practices cuslomary in the jurisdiction or
market where the transaction occurs, which may include the delivery of Securities or
Cash to a counterparty or its agents against, as applicable, the receipt of Securities or
Cash in the future. Customer assumes, on behalf of the Trust, full responsibility for all
risks involved in connection with BNY [Vellon's delivery of Securities or Cash in
accordance with such practices.
7.TAX MATTERS
7 .1 Tax Obligations
Customer assumes the duty to file any and all tax reports and returns, as well as full
responsibility for the payment of all taxes assessed on or with respect to the Fund, and
all taxes due on the income collected for Customer for any and all such transactions with
9
respect to the Assets. For purposes of IRS Form 1099, which BNY Mellon may be
required to file, all reportable income shall be reported as attributable to Customer.
7.2 Responsibility for Taxes
Customer will be responsible and liable for all Tax Obligations with respect to any Assets
held on behalf of Customer and any transaction related thereto. Customer
acknowledges and agrees that BNY Mellon and its Affiliates are not tax advisers and will
not under any circumstances provide tax advice to Customer. Customer will obtain its
own independent tax advice for any tax-related matters.
7 .3 Payments
Where BNY fvlellon receives lnstructions to make distributions or transfers out of the
Fund in order to pay Customer's third party service providers, Customer acknowledges
that in making such payments BNY lvlellon is acting in an administrative or ministerial
capacity, and not as the payor, for tax information reporting and withholding purposes.
8. CREDITS AND ADVANCES
8.1 Contractual Settlement and lncome
BNY Mellon may, in its sole discretion, as a matter of bookkeeping convenience, credit
the Fund with the proceeds resulting from the purchase, sale, redemption or other
delivery or recerpt of Securities, or interest, dividends or other distributions payable on
Securities, or any foreign exchange transaction effected in connection with this
Agreement, prior to its actual receipt thereof. All such credits will be conditional until
BNY Mellon's actual receipt of such proceeds and may be reversed by BNY Mellon to
the extent that such proceeds are not received. Actual receipt of proceeds with respect
to a transaction will not be deemed to have occurred, and the transaction will not be
considered final, until BNY Mellon has received sufficient immediately available funds or
Securities specifically applicable to such transaction that, under applicable local law, rule
or practice, are irreversible and not subject to any security interest, levy or other
encumbrance.
8.2 Advances
lf BNY N/ellon receives an lnstruction that, if processed, would result in an overdraft in
the Fund, BNY Mellon may, in its sole discretion, advance funds in any currency
hereunder.
8.3 Repayment
lf: (a) BNY Mellon has advanced funds to the Fund; (b) an overdraft has occurred in the
Fund (including overdrafts incurred in connection with the settlement of securities
transactions, funds transfers or foreign exchange transactions) or (c) the Trust is for any
other reason indebted to BNY Mellon, Customer on behalf of the Trust agrees to repay
BNY Mellon (on demand or upon becoming aware thereof) the amount of such advance,
overdraft or indebtedness, plus accrued interest at a rate then charged by BNY Mellon to
its institutional custody clients in the relevant currency.
BNY MELLON AND CUSTOMER CONFIDENTIAL
10
BNY MELLON AND CUSTOMER CONFIDENTIAL
8.4 Securing Repayment
ln order to secure repayment of the Trust's obligations and liabilities (whether or not
matured) to BNY Mellon or any BNY fi/ellon Afflliate, arising under or related to this
Agreement, and without limiting BNY Mellon's or such BNY Mellon Afflliate's rights under
applicable law or any other agreement, Customer on behalf of the Trust hereby pledges
and grants to BNY Mellon and such BNY Mellon Affiliate, and agrees BNY Mellon and
such BNY Mellon Affiliate will have to the maximum extenl permitted by law, a continuing
first lien and security interest in all of the Trust's right, title and interest in and to the Fund
and the Assets now or hereafter held in the Fund (including proceeds thereof); provided
that Customer does not hereby grant a security interest in any Securities issued by an
affiliate (as defined in Section 23A of the U.S. Federal Reserve Act) of BNY Mellon.
Customer represents, warrants and covenants that the Trust owns the Assets in the
Fund free and clear of all liens, claims and security interests (except as otherwise
acknowledged in writing by BNY Mellon), and that the first lien and security interest
granted herein will be subject to no setoffs, counterclaims or other liens prior to or on a
parity with it in favor of any third party (other than specific liens granted preferred stalus
by statute). Customer will take any additional steps required to assure BNY Mellon of
such priority security interest, including notifying third parties or obtaining their consent.
BNY Mellon will be entitled to collect from the Fund sufficient Cash for reimbursement,
and if such Cash is insufficient, to sell Securities to the extent necessary to obtain
reimbursement. ln this regard, BNY Mellon will be entitled to all the rights and remedies
of a pledgee, secured creditor and/or securities intermediary under applicable laws, rules
and regulations as then in effect as if the Trust is in default.
9. STATEMENTS; BOOKS AND RECORDS; THIRD PARTY DATA
9.1 Statements
BNY Mellon will make available to Customer, through the Electronic Access Services or
such other method as may be agreed upon by the Parties, a monthly statement
reflecting all lransfers to or from the Fund during such monlh and all holdings in the
Fund as of the last business day of such month. Customer will promptly review each
such statement and, within ninety (90) days of when such statement is made availableby BNY Mellon, notify BNY Mellon of any exception or objection thereto.
Notwithstanding the foregoing, Customer may notify BNY Mellon of any such exceptions
or objections at any time; provided, however, that BNY Mellon will not be responsible or
liable for any losses reasonably evident from review of such statement that could have
been mitigated had such notice been provided during such ninety (90) day period.
9,2 Books and Records
BNY lvlellon will identify on its books and records the Assets belonging to the Fund,
whether held directly or indirectly through Subcustodians or Depositories. Securities
held in the Fund will be held in registered form in the name of BNY Mellon or one of its
nominees and will be segregated on BNY Mellon's books and records from BNY
Mellon's own property. Customer and its authorized representatives will have the right,
at Customer's own expense and with reasonable prior written notice to BNY Mellon, to
have reasonable access to those books and records dilectly pertaining to the Fund. Any
't 'l
BNY MELLON AND CUSTOMER CONFIDENTIAL
such access will occur during BNY Mellon's normal business hours and will be subject to
BNY Mellon's applicable security policies and procedures.
9.3 Third Party Data
(a) Customer acknowledges that BNY Mellon will be receiving, utilizing and relying
on Market Data and other data provided by Customer and/or by third parties in
connection with its performance of the services hereunder (collectively, "Third
Party Data"). BNY Mellon is entitled to rely without inquiry on all Third Party
Data provided to BNY lrtlellon hereunder (and all lnstructions related to Third
Party Data), and BNY Mellon makes no assurances or warranties in relation to
the accuracy or completeness of Third Party Data and will not be responsible or
liable for any losses or damages incurred as a result of any Third Party Data that
is inaccurate or incomplete. BNY Mellon may follow lnstructions with respect to
Third Party Data, even if such lnstructions direct BNY Mellon to override its usual
procedures and data sources or if BNY Mellon, in performing services for itself or
others (including services similar to those performed for Customer), receives
different Third Party Data for the same or similar Securities.
(i) BNY Mellon is authorized to use generally recognized pricing services
including Market Data Providers, brokers, dealers and other market
makers. ln the event that such pricing services are unable to provide a
value of or pricing information in respect of Securities and BNY Mellon
provides values and pricing information, BNY lrilellon will so advise
Customer, but will have no other responsibility or liability in respect of
such valuatron or pricing information;
(ir)Certain pricing or valuation information may be based on calculated
amounts rather than actual market transactions and may not reflect actual
market values, and the variance between such calculated amounts and
actual market values may be material;
(iii)Certain third party service providers may not permit Customer's directed
price to be used, which may result in differences between third party
service provider reports and custodial reports;
(v) BNY Mellon may require Cuslomer to execute supplemental
documentation prior to providing pricing for certain Securities.
Certain Market Data may be the intellectual property of Market Data Providers,
which impose additional terms and conditions upon Customer's use of such
Market Data. Such additional terms and conditions can be found on the Data
(c)
tt
(b) To the extent that BNY Mellon provides values of, and pricing information in
relation to, Securities, Customer acknowledges and agrees that:
(iv) Performance measurement and analytic services may use ditferent data
sources than those used by BNY Mellon to provide Market Data for the
Fund, which may result in differences between custodial reports and
performance measurement and analytic reports; and
BNY MELLON AND CUSTOMER CONFIDENTIAL
Terms Website, Customer agrees to those terms and conditions as they are
posted on the Data Terms Website from time to time.
10.
10.1
DISCLOSURES
Required Disclosure
(a) With respect to Securities that are registered under the U.S, Securities Exchange
Act of '1934, as amended, or that are issued by an issuer registered under the
U.S. lnvestment Company Act of 1940, as amended, the U.S. Shareholder
Communications Act of 1985 (the "Act") requires BNY Mellon to disclose to
issuers of such Securities, upon their request, the name, address and securities
position of BNY Mellon's clients who are "beneficial owners" (as defined in the
Act) of the issuer's Securities, unless the beneficial owner objects to such
disclosure. The Act defines a "beneficial owner" as any person who has or
shares the power to vote a security (pursuant to an agreement or otheMise) or
who directs the voting of a security. Customer has designated on the signature
page hereof whether (i) as beneficial owner, it objects to the disclosure of its
name, address and securities position to any U.S. issuer that requests such
informatron pursuant to the Act for the specific purpose of direct communications
between such issuer and Customer or (ii) it requires BNY Mellon to contact the
lnvestment Manager with respect to relevant Securities to make the decision as
to whether it ob,ects to the disclosure of the beneficial owner's name, address
and securities position to any U.S. issuer that requests such information pursuant
to the Act,
(b)With respect to certarn Securities issued outside the United States, BNY Mellon
may disclose information to issuers of Securities as required by the
organizational documents of the relevant issuer or in accordance with local
market practice.
(c)ln connection with any disclosure contemplated by this Section 10.1, Customer
agrees to supply BNY Mellon with any required information.
10.2 ForeignExchangeTransactions
ln connectron with this Agreement, Customer may enter into foreign exchange
transactions (including foreign exchange hedging transactions) with BNY Mellon or a
BNY Mellon Affiliate acting as a principal or otherwise through customary channels.
Customer may issue standing lnstructions with respect to any such foreign exchange
transactions, subject to any rules or limitations that may apply to any foreign exchange
facility made available to the Fund. With respect to any such foreign exchange
transactions, BNY Mellon or such BNY Mellon Affiliate is acting as a principal
counterparty on its own behalf and is not acting as a fiduciary or agent for, or on behalf
of, Customer, its lnvestment Manager or the Trust. Any such foreign exchange
transactions will be governed by the relevant masler netting agreement (e.9., an ISDA
Master Agreement) in place between Customer and BNY lvlellon or such BNY Mellon
Affiliate, and such transactions will be secured by the Fund and the Assets therein
pursuant to Section 8.4. ln the event there is no such master netting agreement in place
and Customer fails to settle or otherwise meet its obligations in respect of such foreign
'11.
11.1
BNY MELLON ANO CUSTOT$ER CONFIDENTIAL
exchange transactions, BNY Mellon has the right to net all such outstanding foreign
exchange transactions between the Trust and BNY Mellon or such BNY Mellon Affiliate
for the purpose of ascertaining a single net obligation between the Trust and BNY
Mellon, and to the extent such obligation is owed by the Trust to BNY Mellon or a BNY
Mellon Affiliate, such obligation will be secured by the Fund and the Assets therein
pursuant to Section 8.4.
10.3 lnvestment of Cash
ln connection with this Agreement, Customer may issue standing lnstructions to invest
Cash in one or more sweep investment vehicles. Such investment vehicles may be
offered by a BNY Mellon Affiliate or by a client of BNY Mellon, and BNY Mellon may
receive compensation therefrom. By making investment vehicles available, BNY Mellon
and its Affiliates will not be deemed to have recommended, endorsed or guaranteed any
such investment vehicle in any way or otherwise to have acted as a fiduciary or agent
for, or on behalf of, Customer, any lnvestment Manager or the Fund. BNY lilellon will
have no liability for any loss incurred on any such investments. Customer understands
that Cash may be uninvested if it is received or reconciled to an account in the Fund
after the applicable deadline to be swept into the selected investment vehicle.
REGULATORY MATTERS
USA PATRIOT Act
Section 326 of the U.S. Uniting and Strengthening America by Providing Appropriate
Tools Required to lntercept and Obstruct Terrorism Act of 2001 (including its
implementing regulations) requires BNY Mellon to implement a customer identification
program pursuant to which BNY N4ellon must obtain certain information from Customer
in order to verify Customer's identity prior to establishing an account. Accordingly, prior
to establishing the Fund, Customer will be required to provide BNY Mellon with certain
information, including Customer's name, physical address, tax identification number and
other pertinent identifying information, to enable BNY h/ellon to verify Customer's
identity. Customer acknowledges that BNY Mellon cannot establish an account unless
and until BNY fvlellon has successfully performed such verification.
(a) Throughout the term of this Agreement, Customer: (i) will have in place and will
implement policies and procedures designed to prevent violations of Sanctions,
including measures to accomplish effective and timely scanning of all relevant
data with respect to incoming or outgoing Assets or transactions relating to this
Agreement; (ii) will ensure that neither Customer nor any of its Affiliates,
directors, officers or employees 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) will not, directly or indirectly, use
the Fund in any manner that would result in a violation by Customer or BNY
Mellon of Sanctions.
14
11.2 Sanctions
BNY MELLON AND CUSTOMER CONFIDENTIAL
(b)Customer will promptly provide to BNY Mellon such information as BNY Mellon
reasonably requests in connection with the matters referenced in this
Section 11.2, including information regarding the Fund, the Assets and the
source thereof, and the identity of any individual or entity having or claiming an
interest therein. BNY [Iellon may decline to act or provide services in respect of
the Fund, and take such other actions as it, in its reasonable discretion, deems
necessary or advisable, in connection with the matters referenced in this
Section 11.2. lf BNY Mellon declines to act or provide services as provided in
the preceding sentence, except as otherwise prohibited by applicable law or
official request, BNY Mellon will inform Customer as soon as reasonably
practicable.
COMPENSATION
Fees and Expenses
ln consideration of BNY Mellon's services provided hereunder, BNY Mellon will be
(a) paid the fees set forth in the agreed upon fee schedule (as such fee schedule may be
amended by BNY Mellon from time to time upon 45 days' prior written notice to
Customer) and (b) reimbursed for any out-of-pocket and incidental expenses incurred by
BNY Mellon in connection therewith. Unless otherwise agreed by the Parties, such
amounts will be payable to BNY Mellon within 45 days of Customer's receipt of the
relevant invoice. Without limiting BNY lvlellon's other rights set forth in this Agreement,
BNY Mellon may charge interest on overdue amounts at a rate then charged by BNY
Mellon to its institutional trust clients in the relevant currency. BNY Mellon is authorized
to charge and collect from the Fund its fees and expenses unless such fees and
expenses are paid directly by Customer.
12.2 OtherCompensation
Customer acknowledges that, as part of BNY tVlellon's compensation, BNY Mellon will
earn interest on Cash balances held by BNY Mellon (including disbursement balances,
balances arising from purchase and sale transactions and when Cash otherwise remains
uninvested) as provided in BNY Mellon's compensation disclosures.
REPRESENTATIONS, WARRANTIES AND COVENANTS
12.
12.1
13.
13.1 BNY Mellon
BNY Mellon represents and warrants that: (a) it is duly organized, validly existing and in
good standing in its jurisdiction of organization; (b) it has the requisite corporate power
and authority to enter into and to carry out the transactions contemplated by this
Agreement and (c) the individual executing this Agreement on its behalf has the requisite
authority to bind BNY Mellon to this Agreement.
13.2 Customer
Customer represents and warrants that: (i) it is duly organized, validly existing and in
good standing in its jurisdiction of organization; (ii) it has the requisite corporate power
and authority to enter into and to carry out the transactions contemplated by this
15
BNY MELLON AND CUSTOMER CONFIDENTIAL
Agreement and (iii) the individual executing this Agreement on its behalf has the
requisite authority to bind Customer to this Agreement.
Standard of Care
BNY Mellon will discharge its duties under this Agreement with the standard of care and
diligence that a professional custodian would observe in these affairs taking into account
the prevailing rules, practices, procedures and circumstances in the relevant market, or
such other standard of care required by applicable law (the "Standard of Care").
14.2 Limitation of Liability
(a) BNY Mellon's liability arising out of or relating to this Agreement will be limited
solely to those direct damages that are caused by BNY N4ellon's failure to
perform its obligations under this Agreement in accordance with the Standard of
Care. ln no event will BNY ft4ellon be liable for any indirect, incidental,
consequential, exemplary, punitive or special losses or damages, or for any loss
of revenues, profits or business opportunity, arising out of or relating to this
Agreement (whether or not foreseeable and even if BNY Mellon has been
advised of the possibility of such losses or damages),
(b)The duties of BNY Mellon are limited lo the Fund, and BNY Mellon has no duties
with respect to assets held by any other Person including any other trustee.
Customer agrees that BNY Mellon will not serve as, and will not be deemed to
be, a co-trustee under any circumstances.
(c)Notwithstanding anything to the contrary set forth in this Agreement, in no event
will BNY Mellon be liable for any losses or damages arising out of any of the
following:
(i) Customer's or an Authorized Person's decrsion to invest in or hold Assets
in any particular country, including any losses or damages arising out of
or relating to: (A) the financial infrastructure of a country: (B) a country's
prevailing custody and settlement practices; (C) nationalization,
expropriation or other governmental actions; (D) a country's regulation of
the banking or securities industry; (E) currency and exchange controls,
restrictions, devaluations, redenominations, fluctuations or asset freezes;
(F) laws, rules, regulations or orders that at any time prohibit or impose
burdens or costs on the transfer of Assets to, by or for the Fund or
(G) market conditions which affect the orderly execution of securities
transactions or affect the value of securities:
(ii) BNY Mellon's reliance on lnstructions;
(iii)BNY [ilellon's receipt or acceptance of fraudulent, forged or invalid
Securities (or Securities which are otheMise not freely transferable or
deliverable without encumbrance in any relevant market);
'16
14.
'14.1
LIABILITY
(v)BNY Mellon receiving or transmitting any data to or from Customer or any
Authorized Person via any non-secure method of transmission or
communication selected by Customer;
(vi)Customer's or an Authorized Person's decision to invest in Securities or
to hold Cash in any currency; or
(vii) The insolvency of any Person, including a Subcustodian that is not a BNY
Mellon Affiliate, Depository, broker, bank or a counterparty to the
settlement of a transaction or to a foreign exchange transaction, except
as provided in Section 4.2.
(d)lf BNY Mellon is in doubt as to any action it should or should not take, either
pursuant to, or in the absence of, Instructions, BNY l/ellon may obtain the advice
of either repulable counsel of its own choosing or counsel to Customer, and BNY
Mellon will not be liable for acting in accordance with such advice-
14.3 Force Majeure
BNY lvlellon will not be responsible or liable for any failure or delay in the performance of
its obligations under this Agreement to the extent caused, directly or indirectly, by any
event beyond its reasonable control, including acts of God, strikes or other labor
disputes, work stoppages, acts of war, terrorism, general civil unrest, governmental or
military actions, legal constraint or the interruption, Ioss or malfunction of utilities or
communications or computer systems. BNY Mellon will promptly notify Customer upon
the occurrence of any such event and will use commercially reasonable efforts to
minimize its effect.
14.4 lndemnification
Customer and the Trust will jointly and severally indemnify and hold harmless BNY
lvlellon from and against all losses, costs, expenses, damages and liabilities (including
reasonable counsel fees and expenses) incurred by BNY Mellon, and will defend BNY
Mellon against any third party claim, in each case arising out of or relating to BNY
Mellon's performance under this Agreement, except to the extent resulting from BNY
Mellon's failure to perform its obligations under this Agreement in accordance with the
Standard of Care. The Parties agree that the foregoing will include reasonable counsel
fees and expenses incurred by BNY Mellon in connection with its successful defense of
claims asserted by Customer or relating to BNY Mellon's performance under this
Agreement. BNY Mellon will indemnify and hold harmless Customer and the Trust from
and against all losses, costs, expenses, damages and liabilities (including reasonable
counsel fees and expenses) incurred by Customer and/or the Trust, and will defend
them against any third party claim, in each case arising out of BNY Mellon's failure to
perform its obligations under this Agreement in accordance with the Standard of Care.
17
BNY MELLON AND CUSTOMER CONFIDENTIAL
(iv) For any matter with respect to which BNY Mellon is required to act only
upon the receipt of lnstructions, (A) BNY Mellon's failure to act in the
absence of such lnstructions or (B) lnstructions that are late or incomplete
or do not otherwise satisfy the requirements of Section 3.2(e), whether or
not BNY Mellon acted upon such lnstructions;
BNY MELLON ANO CUSTOMER CONFIDENTIAL
CONFIOENTIALITY
Confidentiality Obligations
Each Party agrees to use the Confidential lnformation of the other Party solely to
accomplish the purposes of this Agreement and, except in connection with such
purposes or as otherwise permitted herein, not to disclose such information to any other
Person without the prior written consent of the olher Party. Notwithstanding the
foregoing, BNY Mellon may: (a) use Customer's Confidential lnformation in connection
with certain functions performed on a centralized basis by BNY Mellon, its Affiliates and
joint ventures and their service providers (including audit, accounting, risk, legal,
compliance, sales, administration, product communication, relationship management,
compilation and analysis of customer-related data and storage); (b) disclose such
information to its Affiliates and joint ventures and to its and their service providers who
are subject to confidentiality obligations and (c) store the names and business contact
information of Customer's employees and representatives relating to this Agreement on
the systems or in the records of its Affiliates and joint ventures and its and their service
providers. ln addition, BNY Mellon may aggregate information regarding Customer and
the Fund on an anonymized basis with other similar client data for BNY Mellon's and its
Affiliates' reporting, research, product development and distribution, and marketing
purposes.
15.2 Exceptions
The Parties' respective obligations under Section 1 5.1 will not apply to any such
information: (a) that is, as of the time of its disclosure or thereafter becomes, part of the
public domain through a source other than the receiving Party; (b) that was known to the
receiving Party as of the time of its disclosure and was not otheMise subject to
confidentiality obligations; (c) that is independently developed by the receiving Party
without reference to such information; (d) that is subsequently learned from a third party
not known to be under a confidentiality obligation to the disclosing Party or (e) that is
required to be disclosed pursuant to applicable law, rule, regulation, requrrement of any
law enforcement agency, court order or other legal process or at the request of a
regulatory authority, including, but not limited to, the PUC or FERC.
15.
15.1
'16.
16.1
TERM AND TERMINATION
Term
The term of this Agreement will commence on the Effective Date and will continue in
effect until terminated in accordance with the provisions herein.
16.2 Removal or Resignation
BNY Mellon may be removed with respect to all or part of the Fund upon receipt of sixty
(60) days' written notice (unless a shorter or longer period is agreed upon) from
Customer. BNY Mellon may resign as trustee hereunder upon 120 days' written notice
(unless a shorter or longer period is agreed upon) delivered to Customer.
18
16.3 Effect of Removal or Resignation
ln the event of such removal or resignation, a successor truslee will be appointed and
BNY Mellon will transfer the Fund, less such amounts as may be reasonable and
necessary to cover its compensation and expenses, to the successor trustee. ln the
event Customer fails to appoint a successor trustee within 120 days of receipt of written
notice of resignation or removal, BNY Mellon reserves the right to seek the appointment
of a successor trustee from a court of competent jurisdiction, This Agreement will
terminate after a successor trustee has accepted its duties and BNY Mellon has
transferred all Assets then held by BNY Mellon to the successor trustee. BNY Mellon
will have no duties, responsibilities or liability with respect to the acts or omissions of any
successor trustee.
16.4 Survival
Any and all provisions of this Agreement which by their nature or effect are required or
intended to be observed, kept or performed after the expiration or terminalion of this
Agreement will survive the expiration or any termination of this Agreement and remain
binding upon and for the Parties' benefit, including Section 13 (Representations,
Warranties and Covenants); Section 14 (Liability); Section 1 5 (Confidentiality);
Sections 16.2 through 16.4 (Removal or Resignation; Effect of Removal or Resignation;
Survival); and Section 17.4 (Governing Law/Forum).
17.
17.1
GENERAL
Line ltem Assets
BNY Mellon may reflect on its books and records certain bookkeeping entries for Assets
including, but not limited to, book entry Securities and limited partnership interests that
are selected and monitored by an Authorized Person. BNY Mellon will rely without
independent venfication on information provided by Customer or its designee regarding
such Assets, including but not limited to positions and market valuations.
17.2 AssignmenUU.S. Special Resolution Regime Transferability
(a) Neither Party may, without the other Party's prior w tten consent, assign any of
its rights or delegate any of its duties under this Agreement (whether by change
of control, operation of law or othenvise); provided, however that BNY Mellon
may, without the prior written consent of Customer, assign this Agreement or any
of its rights, or delegate any of its duties hereunder: (a) to any BNY lvlellon
Affiliate; (b) to any su@essor to the business of BNY Mellon to which this
Agreement relates, in which event BNY Mellon agrees to provide notice of such
successor to Customer or (c) as otherwise permitted in this Agreement. Any
purported assignment or delegation by a Party in violation of this provision will be
voidable at the option of the other Party. This Agreement will be binding upon,
and inure to the benefit of, the Parties and their respective permitted successors
and assigns.
(b)Notwithstanding anything herein to the contrary, in the event BNY Mellon
becomes subject to a proceeding under a U.S. special resolution regime, the
19
BNY MELLON ANO CUSTOMER CONFIDENTIAL
BNY MELLON AND CUSTOMER CONFIDENTIAL
transfer of the Agreement (and any interest and obligation in or under, and any
property securing, the Agreement) from BNY Mellon will be effective to the same
extent as the transfer would be effective under the U.S. special resolution regime
if the Agreement (and any interest and obligation in or under, and any property
securing, the Agreement) were governed by the laws of the United States or a
state of the United States; and, in the event BNY Mellon or any affiliate becomes
subject to a proceeding under a U.S. special resolution regime, default rights with
respect to the Agreement that may be exercised against BNY Mellon are
permitted to be exercised to no greater extent than the default rights could be
exercised under the U.S. special resolutron regime if the Agreement were
governed by the laws of the United States or a state of the United States.
17 .3 Amendment
This Agreement may be amended or modified only in a written agreement signed by an
authorized representative of each Party, For purposes of the foregoing, email
exchanges betlveen the Parties will not be deemed to constitute a written agreement.
(a) The substantive laws of the state of New York (without regard to its conflicts of
law provisions) will govern all matters arising out of or relating to this Agreement,
including the establishment and maintenance of the Fund and for purposes of the
Uniform Commercial Code and all issues specified in Article 2(1) of the Hague
Securities Convention.
(b)Each Party irrevocably agrees that all legal actions or proceedings brought by it
against the other Party arising out of or relating to this Agreement will be brought
solely and exclusively before the state or federal courts situated in New York
City, New York. Each Party irrevocably submits to personal jurisdiction in such
courts and waives any objection which it may now or hereafter have based on
improper venue or forum non conveniens. The Parties hereby unconditionally
waive, to the fullest extent permitted by applicable law, any right to a jury trial
with respect to any such actions or proceedings.
17.5 Sovereignlmmunity
To the extent that in any jurisdiction Customer may now or hereafter be entitled to claim,
for itself or its assets, immunity from suit, execution, attachment (before or after
ludgment) or other legal process, Customer irrevocably agrees not to claim, and it
hereby waives. such immunity.
17 .6 Notices
Other than routine communications in the ordinary course of providing or receiving
services hereunder (including lnskuctions), notices given hereunder will be:
(a) addressed to BNY Mellon or Customer at the address set forth on the signature page
(or such other address as either Party may designate in writing to the other Party) and
(b) sent by hand delivery, by certified mail, return receipt requested, or by overnight
20
17.4 Governing LadForum
BNY MELLON ANO CUSTOMER CONFIDENTIAL
delivery service, in each case with postage or charges prepaid. All notices given in
accordance with this Section will be effective upon receipt.
17.7 Entire Agreement
This Agreement constitutes the sole and entire agreement among the Parties with
respect to the matters dealt with herein, and merges, integrales and supersedes all prior
and contemporaneous discussions, agreements and understandings between the
Parties, whether oral or written, with respect to such matters.
17.8 Necessary Parties
BNY Mellon reserves the right to seek a judicial or administrative determination as to its
proper course of action under this Agreement. Nothing contained herein will be
construed or interpreted to deny BNY Mellon or Customer the right to have BNY Mellon's
account judicially determined. To the extent permitted by law, only BNY Mellon and
Customer will be necessary parties in any application to the courts for an interpretation
of this Agreement or for an accounting by BNY Mellon, and no other Person having an
interest in the Fund will be entitled to any notice or service of process. Any final
judgment entered in such an action or proceeding will, to the extent permitted by law, be
conclusive upon all Persons.
17.9 No Third Party Beneficiaries
17.10 Counterparts/Facsimile
This Agreement may be executed in any number of counterparts, each of which will be
deemed an original, and said counterparts when taken together will constitute one and
the same instrument and may be sufficiently evidenced by one set of counterparts. This
Agreement may also be executed and delivered by facsimile or email with confirmation
of delivery and/or receipt.
17.11 lnterpretation
The terms and conditions of this Agreement are the result of negotiations between the
Parties. The Parties intend that this Agreement will not be construed in favor of or
against a Party by reason of the extent to which such Party or its professional advisors
participated in the preparation or drafting of this Agreement.
17.12 No Waiver
No failure or delay by a Party to exercise any right, remedy or power it has under this
Agreement will impair or be construed as a waiver of such right, remedy or power. A
waiver by a Party of any provision or any breach of any provision will not be construed to
be a waiver by such Party of such provision in any other instance or any succeeding
21
This Agreement is entered into solely between, and may be enforced only by, the
Pa(ies. Each Party intends that this Agreement will not, and no provision of this
Agreement will be interpreted to, benefit, or create any right or cause of action in or on
behalf of, any party or entity other than the Parties, their respective successors and
assigns.
BNY MELLON AND CUSTOMER CONFIDENTIAL
breach of such provision or a breach of any other provision. All waivers will be in writing
and signed by an authorized representative of the waiving Party.
17.13 Headings
All section and subsection headings in this Agreement are included for convenience of
reference only and will not be considered in the interpretation of the scope or intent of
any provision of this Agreement.
17.14 Severability
lf a court of competent jurisdiction determines that any provision of this Agreement is
illegal or invalid for any reason, such illegality or invalidity will not affect the validity of the
remainder of this Agreement. ln such case, the Parties will negotiate in good faith to
replace each illegal or invalid provision with a valid, legal and enforceable provision that
fulfills as closely as possible the original intent of the Parties,
[Signature page follows]
.>.,'
BNY MELLON ANO CUSTOMER CONFIDENTIAL
lN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
THE BANK OF NEW YORK MELLON BRIDGER COAL COMPANY
By By
Name Name
Title:
Date
Title:
Date:
Address for Notice:
The Bank of New York Mellon
Address for Notice:
Bridger Coal Company
Attention:
gNY Mellon Trust (revised 10.08.'19)
Attention:
Pursuant to Section 10.1 (a):
[ ] as beneficial owner, Customer OBJECTS to disclosure
[ ] as beneficial owner, Customer DOES NOT OBJECT to disclosure
[ ] BNY Mellon will CONTACT THE INVESTMENT MANAGER with respect to relevant
Securities to make the decision whether it objects to disclosure
IF NO BOX IS CHECKED, BNY IVIELLON WILL RELEASE SUCH INFORMATION
UNTIL IT RECEIVES A CONTRARY INSTRUCTION FROM CUSTOMER OR
INVESTMENT MANAGER, AS APPLICABLE.
ZJ
BNY MELLON AND CUSTOMER CONFIDENTIAL
GRANTOR TRUST SCHEDULE
ADDITIONAL PROVISIONS FOR
NON-ERISA GRANTOR TRUSTS
The following additional terms and conditions supplement the Agreement and will in all respects
be considered part of the Agreement-
1. Trust Type; Representations and warranties
(a) This Trust is established to receive and disburse money pursuant to the
Reclamation Fund Agreement.
(b)Customer represents that, prior to the Effective Date, the Trust has operated in a
manner consistent with the Reclamation Fund Agreement and the Prior
Agreement.
2. Establishment and Operation of the Trust
(a) The principal of the Trust and any earnings thereon will be held separate and
apart from other funds of Customer and will be used exclusively, as determined
by Customer, as provided in the Reclamation Fund Agreement and this
Agreement,
(b)ln no event will BNY Mellon have any duty or responsibility with respect to
compliance with any requirement of the Reclamation Fund Agreement or any
order, regulation or guideline of any regulator or other applicable law. BNY
Mellon may conclusively presume that lnstructions are in full compliance with
such requirements.
(c)Upon termrnation of the Trust, any Assets remaining in the Trust will be returned
to Customer.
3. Additional Limitation of Liability; Predecessor Trustees
(a) Notvvithstanding anything to the contrary contained elsewhere in this Agreement,
any reference to the Reclamation Fund Agreement or requirements or provisions
of laws or agreements governing this Trust will impose a duty upon Customer to
communicate such knowledge or interpretation to BNY Mellon. BNY tvlellon will
have no obligation lo know or interpret any such provision and will not be liable
for any action taken in accordance with this Agreement contrary to such
requirements. Possession of a copy of all or a portion of any such document will
not constitute knowledge on the part of BNY Mellon.
BNY Mellon need not examine the records and acts of any prior trustee. BNY
Mellon will not be responsible for, and Customer and the Trust will jointly and
severally indemnify and defend BNY Mellon from, any claim or liability resulting
from any action or inaction of any prior trustee or from any other action or
inaction or condition with respect to the Trust prior to the Effective Date, including
(b)
Grantor Trust Schedule-l
(c)
without limitation the removal of the prior trustee and the appointment of BNY
Mellon.
Customer represents and warrants that:
(i) Any and all corporate or other actions necessary or appropriate to effect
the removal of a prior trustee, if any, and the appointment of BNY Mellon
have been taken, including without limitation obtaining any necessary
approvals;
(ii) The removal of any prior trustee and the appointment of BNY [\4ellon did
not, and execution of this Agreement will not, constitute a violation of any
prior trust agreement (including the Original Agreement and/or the Prior
Agreement) or applicable law; and
(iii) lt has reviewed the Prior Agreement and included any provisions required
to be preserved in this Agreement. Customer acknowledges and agrees
that the Prior Agreement is superseded in its entirety by this Agreement.
Customer acknowledges and agrees that by entering into this Agreement, BNY
[,lellon makes no representation and provides no advice as to the compliance of
this Agreement with any prior trust agreement (including the Prior Agreement) or
any consequences, including tax consequences, thereof.
(d)
Grantor Trust Schedule-ll
BNY MELLON AND CUSTOMER CONFIDENTIAL
AMENDED AND RESTATET)
MASTER NUCLEAR DEC]OMMISSIONING TRUS'I' AGREEMIINT
THIS AMENDED AND RESTATED MAS'TER NUCLEAR DECOMMISSIONING TRUST
AGREEMENT (this "Agreement"), dated as ol 2020 betrveen PACIFICIORP, a
corporation duly organized and existing under the laws of thc State of Oregon, having its principal office
at 825 NE Multnomah Street, Suite 200, Portland OR 97232 (the "Company"), and'fhe Bank of Neu,
York Mellon, as Trustce, having its principal oflice at 240 Greenrvich Strect, New York, NY 10286 (the
"Trustee");
WHEREAS, the Company has a partial ownership interest in the nuclear generating tbcility
known as the Trojan Nuclear Generating Plant located near Rainer, Oregon (the 'Unit"), which Unit will
require decommissioning in the future;
WHEREAS, the Company previously established the Pacific Power-Trojan Nuclear
Decommissioning Trust (the "Master Trust") to maintain a fund(s) which qualifies as a Nuclear
Decommissioning Reserve Fund under section 468,4 of the lnternal Revenue Code of 1986, as amended,
or any corresponding section or sections of any luture United States intcmal revenue statute (the "Code")
and the regulations thereunder (the "Qualified Funds"), and a fund(s) which does not so qualify (the
"Nonqualified Funds"; collectively, the "Funds"), under the laws ofthe state ofNew York;
WIIIIREAS, the Mastcr Trust was originally established pursuant to that certain Master Nuclear
I)ecommissioning Trust Agreement dated July 16, 1990 between PacifiCorp Electronic Operations (an
assumed business name of the Company) and Bankers Trust Company. and later assigned to State Strcet
Bank and l'rust Company (the "Orlginal Agrcement");
WFIEREAS, the Original Agreement was amended and restated in its entirety pursuant to that
certain Amended and Restated Master Agreement and Declaration of Trust dated December ll, 2012
between the Company and State Street Bank and Trust Agreement (the "Prior Agreement");
WHEREAS, the Company desires to appoint the Trustec as trustee of the Master Trust and to
amend the Prior Agreement in certain respects and to otherwise restate the Prior Trust Agreement in its
entireq all as set forth herein: and
WHEREAS, thc execution and delivery ol this Agreernent have been duly authorized by the
Company and the Trustee and all things necessary to make this Agreement a valid and binding agreement
by the Company ,urd the 'liustee have been done.
NOW, THEREFORE, THIS AGREEMENT WITNESSIITH, thar ro provide fbr (and conrinue ro
provide for) the continuation of the Master 'l'rust and the maintenance of the Funds and the making of
payments therefrom and the performance of the covenanls ol the Cornpany and thc Trustee set lbnh
herein, the Company does hereby sell, assign, transfer, set over and pledge unto thc Trustee, and to its
successors in the trust and its assigns lbrever, all ofthc Company's right, Iitle and intcrest in and to an1,
and all cash and property here*ith and hereafter contributed to the lrr-rnds, subject to the provisions of
RSItsNYM Draft 12.5.t9
WI'I'NESSETH:
TO HAVE AND TO HOLD THE SAME IN TRUST for the exclusive purpose of providing
funds for the decommissioning of the Funds' respective Units in order to satisf, the Company's liability
in connection therewith, 1o pay the administrative costs and other incidental expenses ofthe funds, and to
make certain investments, all as hereinafter provided.
Section l.0l Establishment ofthe Funds. The Master Trust shall be divided by the Trustee
into Funds to be identified as tbllows:
The Funds shall continue to be maintained separately at all times in the United States as the Nonqualified
l'unds and the Qualified Fund pursuant to this Agreement and as separate trusts under this Master Trust
Agreement in accordance with the laws of the State of New York. The Company intends that thc
Qualified Fund shall qualif as a Nuclear Decommissioning Reserve Fund under section 468,4 of the
Code. The assets ofthe Qualified Fund may be used only in a manner authorized by section 468A ofthe
Code and the regulations thercunder and this Agreement cannot be amended to violatc section 468A. of
the Code or the regulations thereunder. The Trustee shall maintain such records as are necessary Io
reflect each Fund separately on its books from each other Fund and shall create and maintain such
subaccounts within each Fund as the Company shall direct. The Trustee shall establish such separate
accounts under the Funds as directed by the Company.
Secrion 1.02 Purposes ofthe Funds. The Funds are established for the exclusive purpose of
providing funds lor the decommissioning of the Units identified in their respective tilles. The
Nonqualified Funds shall accumulate all contributions (whether from the Company or others) which do
not satisfy the requircments for contributions to the Qualified Fund pursuant to Section 2 of the Special'lenns. Thc Nonqualified fund includes a separatc sub-account called the TSFSI Radiological
Decommissioning fund, which shall be maintained by the Trustee as a scparate sub-account of the
Nonqualified Fund. The Qualilied Fund shall accumulate all contributions (whether from the Company
or others) which satisly the requirements of Section 2 of the Special Tenns, The Qualitied Fund shall
also be governed by lhe provisions of the Special Terms, which provisions shall take precedence over any
provisions of this Agreement construed to be in conflict therewith. None ofthe assets olthe h-unds shall
be subject to attachment, gamishment, execution or levy in any manner for the bencfit of creditors of the
Company.
Section 1.03 Conributions to the F-unds. The asscts ofthe lunds shall be contributed by the
Company (or by others approvcd in writing by the Company) from time to time. Cash contributions for a
Unit shall be allocated to its Qualified Fund unless the Company designates in u,riting at the time of
payment to which of the Unit's tu'o Funds the paymcnt is allocated. The Company shall have sole
discrelion as to whether cash payments are allocated to a Qualified Fund or a Nonqualified Fund.
Contributions of propefi-v other than cash shall be allocated to the Nonqualiticd Funds.
Section 2.01 Limitation on Use of Assets. The assets of the Funds shall bc used exclusivel )'
(a) to satisfy, in rvhole or in part, any expenses or liabilities incurred by or on behalf ol the Company with
-)
Article V hereof and Section 4 ofthe Special Terms ofthe Qualified Nuclear Decommissioning Reserve
Fund, attached hereto as Exhibit A (the "Special Terms").
ARTICLE I
Purposes ol the Funds: Contributions
ARTICLE II
Pavments by the Trustee
respect to the decommissioning of the respective Units, including expenses incurred in connection with
the prcparation for decommissioning, such as engineering and other planning expenses! and all expenses
incurred after the actual decomrnissioning occurs, such as physical security and radiation monitoring
expenses (the "Decommissioning Costs"), (b) to pay the administrative costs and other incidental
expenses of each Fund separately from the assets of such Fund, and (c) to invest in investments as
directed by the lnvestlnent Manager(s) pursuant to Section 3.07(a) or the Trustee pursuant to Section
3.07(b), except that all assets of a Qualified Fund must be invested in Permissible Assets as defined in the
Spccial Terms. Use of the assets of a Qualified Fund shall be further limited by the provisions of the
Special Terms.
Section 2.02 Certification for Decommissioninq Costs. lf assets of the Funds are required to
satisfy Decommissioning Costs, the Company shall presenl a certificate substantially in the form attached
hereto as Exhibit ts to the Trustee signcd by its Chairman of the Board, its President or onc of its Vice
Presidcnts and its Treasurer or an Assistant Treasurer, requesting payment from lhe Funds. Any
certificate requesting payment by the Trustee to a third party or to the Company from the Funds lor
Decommissioning Costs shall include the following:
(a) a statement olthc amount ofthe payment to be made from the Funds and whether the
par-mcnt is to be made tiom a Nonqualified Fund, a Qualified Fund or in part from both Funds;
(c) the nature ofthe Decommissioning Costs to be paid;
(d) the payee, which may be the Company in the case ol reimbursement for payments
previously made or expenses previously incurred by the Company for Decommissioning Costs;
(e) a statemcnt that the Decommissioning Costs for which payment is requested have not
thcrctofore been paid ou1 oflunds ofthe Funds; and
(0 a statement that any necessary authorizations of the applicable Public Utiliry
Commission (he "PUC") and/or any other governmental agencies having jurisdiction with respect to the
decommissioning have bcen obtained.
'I'he 'llustee shall retain at least one counterpart of all copies of such certificates
(including attachments) and related documents received by it pursuant to this Article IL
The Company shall have the right to enforce paymcnts frorn the Funds upon comphance
with the procedures set tbrth in this Section 2.02.
Section 2.03 Except for (i) payments of ordinary administrative costs (inoluding taxes) and
othcr incidental expcnses of the Fund (including legal, accounting, actuarial, and trustee expenses) in
connection with the operation ofthe I'und, (ii) withdrawals being made undcr 10 Cl-R 50.82(a)(8), and
(iii) permissible transf'ers between Qualified and Nonqualified Funds, no disbursement or payment may
be madc from the Master Trust until written notice of the intention to make a disbursement or payment
has been given to the Director, Office of Nuclear Reactor Regulation, or the Director, Office of Nuclear
Matcrial Saf'ety and Safeguards, as applicable, at least 30 working days befbre the date of the intended
(b) a statement that the payment is requested to pay Decommissioning Costs which have
been incurred, and ifpayment is to be made fiom a Qualified F'und, a statement that the Decommissioning
Costs to bc paid constitute Qualified Decommissioning Costs, as defined in the Special Terms;
disbursement or payment. The disbursement or payment t'rom the Master l rust may be made lollowing
thc 30-working day noticc period if no written notice of objection from the Director, Office of Nuclear
Reactor Regulation, or the Director, Office of Nuclear Material Safety and Safeguards, as applicable, is
received by the Trustee or the Company within the notice period. 1he required notice may be made by
the Trustee or on the'Irustee's bchalf. No such notice is required lor withdrawals being made pursuant to
l0 CFR 5 0.82(a)(8 )( ii), including rvithdrawals madc during thc operating life of the plant to be used lbr
decommissioning planning. ln addition, no such notice is required to be made to the NRC after
decommissioning has begun and withdrawals arc being made under 10 CFR 50.82(a)(8).
Section 2.04 Administrative Costs. The Trustee shall pa_v, as directed by the Company, the
administrative costs and other incidental expenses of a Nonqualified Irund, including all federal, state, and
local taxcs, if any, imposed directly on the Nonqualified Fund, lcgal expenscs, accounting expenscs,
actuarial expenses and tnlstee cxpenses, from the asscts of the Nonqualificd Fund and shall pay, as
directed by the Company, the administrativc costs and other incidental expcnses of a Qualified Fund, as
defined in the Special Terms, lronr the assets olthe Qualitied Fund.
Section 2.05 Payments between the Funds. The l'rustec shall makc payrrents (i) tiorn a
Qualified Fund to a Nonqualified Fund provided such payments are in cash and are in accordance with
Section 4 of thc Special Terms or (ii) from a Nonqualified Fund to a Qualified Fund provided such
payments are in accordance with the contribution limitations set forth in Section 2 of the Special Terms,
as the case may be, upon presentation by the Company ofa certificate substantially in the form ofExhibit
C hereto cxecuted by the Company instructing the Trustee to make any such payments. The Trustee shall
be fulJy protectcd in relying upon such certificate.
ARTICLE III
Concemins the Trustce
Section 3.01 Authorily ofTnlstec. 'lhe Trustee hereby accepts thc Master Trust created under
this Agreement. '[he Trustcc shall have the authority and discrction to manage and control the Funds to
the cxtent provided in this Agreetlent but does not guarantee the f-unds in any rnanner against inveshnent
loss or dcpreciation in asset value or guaranlee thc adequacy of the Funds to satisly the Decomrnissioning
Costs. l'he Trustec shall not be liable for thc making, retention or sale ofany asset of a Qualified Fund
rvhich qualifies as a Pennissible Asset, as defined in the Spccial Terms, nor shall the Trustce be
responsible for any other loss to or diminution of the l'unds, or for any other loss or damage which may
result from the discharge of its duties hereunder except for any action not taken in good faith.
Section 3.02 "Authorizcd Person" shall mean any Person authorized by the Company or an
lnvestmcnt Manager to give oral or written Instructions with respect to the Fund or with respect to foreign
exchange, derivative investments or information and transactional web based services provided by the
Trustee or a tsNY Mellon Affiliate. "Oral lnstructions" shall mean instructions expressed in spoken
s,ords received by the Trustce and "Writlcn Instructions" shall mean written communications receivcd by
the Trustee by S.W.l.F.T., ovemight delivery, postal services, facsimile transmission, email, on-line
conrmunication system or other method or system, each as specif,red by the Trustee as available for use in
connection with the services hereunder. Authorized Persons shall include Persons authorized by an
Authorized Person. Authorized Persons, their signatures and thc extent of lheir authority shall be
provided by Written lnstnlctions. 'l'he Company shall cause the Investmenl Manager to fumish thc
Trustce with Written Instructions identifying Authorized Persons and their signatures. The'Irustee may
conclusively rely on the authority of such Authorized Persons unlil it receivcs a Written Instruction to the
contrary,
1
Section 3.04 Authentication. lf the Trustee receives Written Instructions that appear on their
face to havc been transmitted by an Authorized Person via (i) facsimile, cmail, or other clectronic method
that is not secure, or (ii) sccure electronic transmission containing applicable authorization codes,
passwords or authentication keys, the Company understands and agrces that the Trustee cannot detemrine
the identity of the actual sender of such Written Instructions and that the Trustee shall bc entitled to
conclusively presume that such Written lnstructions have been sent by an Authorized Person and are
Authorized Instructions. The Company shall be responsible for ensuring that only Authorized Persons
transmit such Written Instructions to the Trustee and that all Authorizcd Persons treat applicable user and
authorization codes, passwords and authentication keys with extremc care.
Section 3.05 Security Procedure. Thc Contpany acknowledgcs and agrees that it is f'ully
inlormed o[ the protections and risks associated with the various methods of transmitting Written
Instructions to the Trustee and that there may be more secure methods of transmitting Written Instructions
than the method selected by the sender. The Company agrees that the security procedures, if any, to be
followed in conncction with a transmission of Written Instructions provide to it a commercially
reasonable degrce ofprotection in light of its particular needs and circumstances.
Section 1.06 On-Line Svsterns- lf an Authorized Person clccts to transmil Written Instructions
through an on-line communication systcm ofiered by the Trustec, the use thereof shall be subject to any
terms and conditions contained in a scparate writtcn agreement. Ilan Authorized Person elects, with the
Trustee's prior consent, to transmit Written Instructions through an on-line communications service
owned or operated by a third party, the Company agrees that the Trustec shall not be rcsponsible or liable
lor the reliability or availability of any such service.
Section 3.07 lnvestment of Funds.(a) The Cornpany shall have thc authoritv to appoint one or
more investmcnt managers (which may include the Contpany, each an "lnveshrent Manager") rvho shall
have the power to direct the Trustee in invcsting the assets of the Funds; provided, horvever, that the
Trustee shall not fbllow any direction rvhich u,ould result in assets of a Qualified Fund being invested in
assets other than Permissible Assets as dcfined in thc Special Terms. To the cxtent that the Company
chooses to exercisc this authorit!', it shall so notily the Trustce and instruct lhc Trustee in rvriting to
separate into a separatc accouut those asscts the investment of u,hich will be directed by each Investment
Manager. Upon thc scparation ofthe assets in accordance with Authorized Instructions, the Trustee, as to
thosc assets u,hile so separated, shall be released and relicved of all investrnent duties, investmenl
responsibilities and investment liabilities normally or statutorily incident to a trustee; provided, howevcr,
that the Trustee shall not be rclieved of the responsibility of ensuring that assets of a Qualified Fund are
invested solely' in Permissible Assets, as defined in the Special Terms. The Trustee shall retain all other
fiduciary duties wilh respect to assets lhe investment of which is dirccted by Investment Managers.
(b) To the extent that the investmcnt ofassets olthe Funds are not being dirccted by one
or more Investment Managers undcr Section 3.07(a), and only to the extent agreed upon by the Trustee in
)
Section 3.03 Authorized Instructions. The lrustee shall be entitled to rely upon any Oral or
Written Instructions actually receivcd by the Trustee and reasonably believed by the Trustee to be from
an Authorizcd Person ("Authorized lnstructions"). The Company agrecs that an Authorized Person shall
forw'ard to the Trustee Written lnstructions confirming Oral lnstructions by the close ol business of the
same day that such Oral Instructions arc given to the Trustee. l'he Trustec may act on such Oral
Instructions but is not obligated to do so until Written lnstructions are received. The Compan;" agrees
that the fhct thal Written Instructions confirming Oral lnstructions arc not received or that contrary
Written Instructions are receivcd by the Trustee shall in no wav at'f'cct the validity or enforceability of
transactions authorized by such Oral Instructions and elfected by thc l'rustee.
a separate writing, the Trustee shall hold, invest, and reinvest the lunds delivered to it hereundcr as it in
its sole discrction deems advisable, subject to the restrictions sct forth herein for investment of the assets
of a Qualified Fund.
(c) Rcgardless ofthe person directing investments, any assets ofa Qualified Irund shall
be invested solely in Pemrissible Assets as dellned in, and required by, the Special 'l-erms, and shall be
accumulated, inveslcd, and reinvested in like manner. Upon the $.ritten consent of the Company, the
assets of a Qualified Fund relating to a Unit may be pooled, but only with the assets of any other
Qualified Fund relating to any other Unit; provided that the book and tax allocations of the Qualificd
Fund Pool are made in proportion to each Qualitied Fund's relativc book capital accounts. Upon the
wrilten consent of the Company, the assets of a Nonqualified Iund relating to a Unit may bc pooled, but
only with thc assets of another Nonqualified Fund relating to any other Unit.
(d) Notwithstanding any other provision of this Agrcement, with respect to the pooling
of invcstments authorized by subparagraph (c) no part of any Fund's (or any subsequent holder's) interest
in such pool, nor any right pertaining to such interest (including any right to substitute anothcr entity for
the Fund or for any subsequent holdcr, as holder of investments pooled pursuant to subparagraph (c)) may
be sold, assigned, transferred or otherwise alienated or disposcd ofby any holder ofan intercst in the pool
unless the written consent to the transf'er of every other holder of intcrests in such pool is obtained in
advance ofany such transfer.
(e) Notwithstanding the provisions of subparagraph (d) of this Section, a Fund's
investment in a pooled arrangement may be withdrawn from the pool (but not from the Master Trust,
except as otherwise permitted by this Agreement) at any time upon 7 days written notice to the Trustce by
the Fund. If the Fund rvithdrarvs its entirc interest in a pool, the pooled amangement shall terminate 30
days after notice of final withdrawal has been givcn by any withdrawing lund unless a majority in
interest of the remaining Funds give their written consent to continue the pool u,ithin such 30 day period.
If the pooled arrangement terrninates, each Fund's assets will be segregated into a separatc account under
the Master 1rust, and no further commingling lnay occur for a period of at least one year alier such
termination.
(1) Subparagraphs (c), (d) and (e) apply to transfers of intercsts within, and withdrarvals
from, the pooling arrangement. Nothing within these sections shall be interpreted to pcmlit or to limit
transf'er of interests in, or withdrawals f'rom, a fund, which transf'ers and withdrawals are govemcd by
other provisions of this Agreement. In addition, the provisions of subparagraphs (c), (d) and (e) shall not
Iimit the Trustee's authority to invest in pcnnissible common or collective trust funds
(g) For the purposes of this section 3.07(g), the Trustee, Investment Manager, or other
person directing investment of the f'unds is rcferred to as the "lnvestment Director."
(1) The Investment Direclor is prohibited from investing the Funds in securities or other
obligations of the Clompany or any other owner or operator of any nuclear power reactor
or fieir afliliates, subsidiaries, successors or assigns. The Investment Director is
prohibited from investing the Funds in a mutual fund in lvhich at least 50 perccnt of the
fund is invested in the securities of a licensee or parent company whose subsidiary is an
owner of an interest in a fbreign or domestic nuclear power plant or an operator of a
foreign or domestic nuclear power planl. However, the Funds may be invested in
securities tied to market indices or other non-nuclear seclor collective, commingled, or
mutual funds. Provided further that this subsection shall not operate in such a way as lo
require the sale or transfcr either in whole or in part, or other disposition of any such
6
prohibited investment that was made beforc December 24,2002. And provided further
Ihat no more than l0 perccnt ofthe Funds may be indirectly invested in securities ofany
entity owning or operating one or more nuclear power plants.
(h) The Company, its affiliates, and its subsidiaries are prohibited f'rom being engaged as
Investment Manager 1br the Funds or from giving day-to-day management dircction of the Funds'
investmenl.s or direction on individual investments by the Funds, except in the case of passive f'und
management of the Funds where managemcnt is limited to investments tmcking market indices.
Section 1.08 Prohibition Au Self-t)galine. Notlvithstandin -q anrv othcr provision in this
Agreement, the'l'rustee shall not engage in any act ofself-dealing as defined in section 468A(e)(5) ofthe
Code and l'reas. Reg. $ I .468A-5(b) or any corresponding future law or Treasury Regulation.
Section 3.09 Holdins Securities. "Securities" shall include, without limitation, any common
stock and other equity securities, depository reccipts, limitcd partnership and limited liability company
interests, bonds, debentures and olher debt securities, noles or other obligations, and any instruments
representing rights to receive, purchase, or subscribe for the samc, or representing any other rights or
interests therein (whethcr represented by a cenificate or held in a Depository (as defined bclow), rvith a
Subcustodian (as defined below) or on the books olthe issuer) that are acceplable to the Trustee. Subjcct
to the terms hercof. the Company hereby authorizes the Trustee to hold any Securities in registered fomr
in the name of the Trustee or one of its nominees. Securities held hereunder shal1 be segregated on the
Trustee's books and records lrom the Trustee's own property. Thc lrustee shall be entitled to utilize
Subcustodians and Depositories in connection with its perfor;nance hereunder. Securities and casli held
through Subcustodians shall be held subject to the terms and conditions of thc Trustee's or a BNY Mellon
Affiliate's agrccments with such Subcustodians. Securitics and cash dcposited by the Trustee in a
Depository will be held subject to thc rules, terms and conditions ofsuch Dcpository. Subcustodians may
hold Securities in Depositories in which such Subcustodians participate. Unless otherwise requircd by'
local lau, or practice or a particular subcustodian agreement, Securities deposited with Subcustodians will
be held in a commingled account in the name of the 'l'rustee or a BNY Mellon Affiliate for its clients.
The Trustee shall identify on its books and records the Securities and cash belonging to thc Fund, whether
held directly or indirectly through Depositories or Subcustodians. In no event shall thc I rustee be liable
lor any losscs, costs, expenses, damages, liabilities and clainrs ("Losses") arising out of the holding of
Securities or cash in any particular country, including but not limited to, Losscs resulting lrom
nationalization, expropriation or other govcrrmental actions; regulation of the banking or sccurities
industry; exchange or currcncy controls or restrictions, devaluations or fluctuations or currency
redenomination; availability of Secr.rities or cash or market conditions u'hich prevenl the transfer of
property or the execution of Securities transactions or aff'ect the value of propefiy ("Country Risk
Events").
Section 3.10 Subcustodians. "Subcustodian" shall mean a bank or other financial institution
(other than a Depository) that is utilized by the Trustee or by a BNY Mellon Affiliate, in its discrction, in
(2) As provided above, the Investment Director is obligated at all times, whether in
investing or otherq,ise, to adhere to the standard of care provided in herein however, in
the absence of s such standard of care no longer be required, the Investment Director will
adhere to the standard of care that a prudent investor would use in the same
circumstances. For this purpose, the term "prudent investor," shall have the same
meaning as set forth in the Fcderal Energy Regulatory Commission's "Regulations
Goveming Nuclear Plant Dccommissioning Trust Funds" at l8 C.F.R. 35.32(a)(3), or any
successor regulation.
connection with the purchase, sale or custody ol Securities or caslr hereunder. The Trustee shall exercise
reasonable care in the selection or retenlion, monitoring and continued use of Subcustodians in light of
prevailing rules, practices, procedures and circumstances in the relevant markcl (the "Required Care").
With respect to any Losses incurred by the Trust, the Company or any other person as a result of
the acts or the failure to act by any Subcustodian ("Operational Losses," which specifically excludes
Losses arising out ofor relating to Country Risk Events), the Trustce shall be liable for:
a. Operational Losses with respect to Securities or cash held by the Trustee $.ith or
through a BNY Mellon Affiliate; and
b. Operational Losses \,',ith respect to Securities or cash held by thc Trustee with or
through a Subcustodian (other than a BNY Mellon At}iliate) to the extcnt that such Operational Losses
were directly caused by failure on the part ofthe Trustee to exercise Required Carc.
With respect to all other Operational Losses not covered by clauses (a) and (b) above, the 'l rustee
shall take appropriate action to recover Operational Losses lrom such Subcustodian, and Trustee's sole
liability shall be limited to amounts recovered from such Subcustodian (exclusive of costs and expenscs
incurred by the 'l'rustee).
In addition, the Trustee shall be liable lor repayment to the Mastcr 'l rust of cash credited to the
Fund and credited to any relevant cash account at the Subcustodian that the Trustee is not able Io recover
from thc Subcustodian (other than as a rcsult of Country Risk Events).
Section 3.1I Deposits. The Trustee may hold cash in accounls or may arange to have such
cash held by any direct or indirect subsidiary of The BanI of New York Mellon Corporation (a "BNY
Mellon Affiliate"), Subcustodian, or with a Depository (defined below). Where cash is on deposit with
the Trustee, a Subcustodian, a BNY Mcllon Atfiliatc or a Depository, it will be subject to the tcnns of this
Agreement and such deposit terms and conditions as may be issued by such entity from time to time.
Section 3.12 Deoositories. "Deolstlqry" shall include the Book-Entry System, the Depository
Trust Company, Euroclear, Clearstream Banking S.A., the Canadian Depository System, CLS Bank and
any other sccurities depository, book-entry syslem or clearing agency (and their respective successors and
nominees) authorized Io act as a securities depository, book-entry system or clearing agency pursuant to
applicable law. "Book-Entry System" shall mean the U.S. Federal Reserve/Treasury book-entry system
for receiving and delivering securities. its successors and nominees. The Trustee shall have no liability
whatsoever for the action or inaction of any Dcpository or for any Losscs resulting ftom the maintenance
of Securities with a Depository. The Trustce shall be liable to repay cash credited to the Fund and
credited to any relevant account at such Depository (other than as a result ofCountry Risk Events).
Section3.l3 Compensation. The Trustec shall be entitled to receive out of thc Funds
reasonablc compensation for services rendered by it, as well as expcnses necessarily incurred by it in the
execution of the trust hereunder, provided such compensation and expenses qualify as administratiYe
costs and other incidental expenses of a Qualified Fund, as defincd in the Special 'l'enns, with respect to
any payment ofcompensation and expenses frorn a Qualitied Fund. The Company acknou'lcdges tl'rat, as
part of the Truslee's conrpensation, the Trustee rvill earn interest on balances. including disbursement
balances and balances arising lrom purchase and sale transactions.
Section 3.14 Overdralls and Indcbtedness. The'frustec may, in its solc discretion, advance
funds in any currcncy hereunder. If an overdraft occurs in a Fund (including, without limitation,
overdrafts incurred in connection u,ith the settlement of securities lransactions, funds transf'ers or foreig11
E
exchange ransactions) or il the Company is for any other reason indebted to the Tmstee, thc Companl,
agrees to repay fie l rustee on demand or upon becoming aware ofthe amount ofthe advance, overdraft
or indebtedness, plus accrued interest at a rate tlren charged by the Trustee to its institutional custody
clients in the relevant currency.
Section.3.l5 Securing Repayment. In order to sccure repavmcnt of the Master 'l rust's
obligations (whether or not maturcd) to the Trustee, the Company on behalf of the Master 'l'rust hereby
pledges and grants to the Trustee a continuing first lien and securit) intcrest in, and right of setoff against
all of the'l'rust's right, titlc and interest in the Fund, and the Securities, money and other property now or
hereafter held in such accounts (including proceeds thereol); provided that the Company does not grant
the l rustee a security interest in any Securities issued by an alfiliate of the Trustee (as defined in Section
23A of the Federal Reserve Act). 't he Company represents that the Master 'l'rust owns the Securities in
the Funds free and clear of all liens, claims, security interests, and the first lien and security interest
granted herein shal) be subject to no setoffs, counterclaims, or othcr liens prior to or on a parity with it in
t'avor olany other party (other than specific liens granted preferrcd status by statute). 'fhe Company shall
take any additional steps required to assr.re thc 'Iruslee of such priority securig intercst, including
notif]-ing third parties or obtaining their consent. The Trustee shall be cntitled to coilcct from the Fund
sufticient cash tbr reimbursement, and if such cash is insufficient, to scll the Securitics in the Fund to the
extent necessary to obtain reimbursement. ln this regard, the Trustec shall be entitled to all the rights and
remcdies of a pledgcc and secured creditor as if the Master Trust is in detlult under applicablc laws, rules
or regulations as then in effect.
Section 3.16 Pricins and Other Data. For purposes of this Section, "Market Data" shall mean
pricing or other data related to securities and other assets. Market Data includes but is not limited to
security identificrs, valuations, bond ratings, classification data, and other dala received from investment
managers and others, ln providing Market Data related to thc f'und in conncction with this Agreernent,
the Trustce is authorized to use pricing vendors, brokcrs, dealers, investment managers, Authorized
Parties, Subcustodians, Dcpositories and any other person providing Market Data 10 the Trustee ("Data
Providcrs"). The Truslee may follou' Authorized Instructions in providing pricing or other Market Data,
evcn ifsuch instructions direct the Trustee to override its usual procedures and Market Data sources. The
Trustee shall be entitled to rely without inquiry on all Market Data (and all Authorizcd lnstructions
related to Market Data) provided to it, and thc'l'rustee shall not be liable lor any losses incured as a
result of Market Data that contains enors or that is incomplete. The Company acknorvledges that ccrtain
pricing or valuation inlormation may be based on calculated amolrnts rather than actual market
transactions and may nol reflect actual market values, and that the variancc betrveen such calculated
amounts and actual market values may be material. The Trustce shall not bc required to inquire into the
pricing or any securities or other assets even though the Trustee may reccive different prices tbr the same
securities or assets. Market Data may be the intellectual property of the Data Providers, which may
imposc additional terms and conditions upon tlre Company's use ol the Markct Data. The additionalterms and conditions can be fbund on the Data 'fems Wcbsite, at
htp.iib nelton..o i.?rodu fssetsenicitli/\'an ttragreanenr.ptr/ ("Dala Terms Website"), or any successol rvebsite the
address of which is provided by thc Trustee to the Company. The Company agrees to lhosc tcnns as they
are posted in the Data Terms Website from time to time. Certain sen ice providers hired hy the 'Irustee to
provide or to assist the Trustee with providing value-added services requcsted by the Company ("Third
Party Service Providers") may not utilize the Company's directed price due to system constraints or
differing data sources. Perfonaance measurement and analytic services may use diflerent data soLLrces
than those used by thc Trustee to provide Market Data for the Fund, which rray result in diffcrcnces
bet$,een custodial reports and perfbrmance measurement and analytic reports.
I
Sectioni.l7 Books ofAccount. 'fhe Trustce shall kcep separale true and correct books of
account with respect to cach ofthe Funds, which books ofaccount shall at all reasonable tirnes bc open to
inspection by the Company or its duly appointed representatives. The Trustee shall, upon u'rilten request
of the Cornpany, permit govemment agencics, such as the PUC or the Intemal Revenuc Service, to
inspect the books of account of the Funds. The Trustee shall fumish to the Company by the tenth
business day of each month a statement for each Fund showing, with respect to the prcceding calcndar
month, the balance of assets on hand at the beginning of such month, all receipts, investment transactions,
and disbursements *hich took place during such month and the balance of assets on hand at the end of
such month. The Trustee agrees to provide on a timely basis any infomation decmed necessary by the
Company to file the Company's fcderal, state and local tax returns.
Section 3.18 Centralized [unctions. The Bank ofNew 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. Solely
in connection with the Centralized Functions, (i) the Company consents lo thc disclosure of, and
authoriz.cs the Trustec lo disclose, information regarding the Company and its acoounts ("Customer-
Related Data") to the BNY Mellon Group and to its third-party service providcrs rvho are subject to
confidentiality obligations with rcspect to such information and (ii) the Trustee may store the names and
business addresses of the Company's employees on the systems or in the records of the BNY Mellon
Group or its service providers. In addition, the BNY Mellon Group may aggregate Customer-Rclated
Data with other data collected and./or calculated by the BNY Mellon Croup, and the BNY Mellon Group
will own all such aggregated data, provided that the BNY Mellon Group shall not distribute the
aggregated data in a format that identifies Customer-Related Data with the Company. The Company is
authorized to consent to the foregoing and confirms that the disclosure to and storage by thc BNY Mellon
Croup of such information does not violate any relevant data protection lcgislation- In addition, the
Trustee may disclose Customer-Related Data as required by law or at the request of any governmental or
regulatory authority.
Section 3.19 Standard of Care/Limitation on Liabili . In performing its duties undcr thistv
Agreement, the 'l rustee shall exercise the same care and diligence that it would devote to its ou'n propeny
in like circumstances.
The Trustee shall not be liable for Losses cxcept to thc extent that such Losses are a
direct result ofthe Trustee's negligcnce or willful misconduct.
'lhe Trustee shall not be liable to the Company or the Master Trust for indirect,
consequential or special damages arising in connection with this Agreement even if the Trustee has been
advised of the possibility of such damages.
Thc Trustee shall not be responsible for the title, validity or genuineness ofany Securities
or evidence of titlc thereto received by it or delivered by it pursuant to this Agreement or for Securities
held hereunder being freely transferable or deliverable without encumbrance in any relevant market.
The Trustee shall not bc responsible for the failure to receive payment of, or the late
payment of, income or other payments due to the Fund.
The Trustee shall have no duty to take ary action to collect any amount payable on
Securities in default or ifpayment is refused after due demand and presentment.
l0
The Trustee may obtain the advice of counsel and shall be fully protected with respect to
anything done or omitted by it in good faith in conformity with such advice.
'[he Trustee shall have no dury or responsibility to inquire into, make recommendations,
supervisc, or detennine the suitability of any transactions affecting the Fund and shall have no Iiability
rvith respect to the Company's or an Authorizcd Person's decision to invest in Securities or to hold cash
in any currency.
'lhe Trustee shall have no responsibiliry if the rules or procedures imposed b1
Depositories, exchange conlrols, asset tieezes or other laus, rules, regulations or orders at any tinlc
prohibit or irnpose hurdens or costs on the transler of Securities or cash to, by or lor the Fund.
lhe Trustee shall have no liabi)ity lor any Losses arising from the insolvency ofany
Person, including but not limited to a Subcustodian, Depository, broker, bank, and a counterpany to the
settlement ofa transaction or to a foreign exchange transaction, except as provided in Sections 3.10 and
3. I 2 above.
Section 3.20 Liabiliw and Indernnification. The Company hereby agrees to indemnily the
Trustee for, and to hold it harmless against, all losses, costs, expensesr damages, liabilities and claims
arising out of or in conneclion with its entering into this Agreement and carrying ol'tt its duties hereunder,
including reasonablc counsel fees and expenses in third part), suits and in a successful defense of claims
asserled by the Company, other than to the extent resulting directll, from the Trustee's negligence or
willful misconduct. This provision shall survive the termination of this Agreement.
Section 3.21 !-oreisn Exchangc. Any foreign cxchange transaction eft'ected by the lrustee in
connection with this Agreement may be entered with the Trustee or a BNY Mellon Affiliate acting as a
principal or otherwise through customary channels. The Company, the Investment Manager or other
fiduciary may issue standing Written lnstructions with respect to foreign exchange transactions, but the
Trustee may establish rules or limitations conceming any forcign exchange facility made available to the
Fund. With respcct to foreign exchangc transactions done through The Bank of New York Mellon's
Global Markets FX Desk, it is acting as a principal counterparty on its own behalf and is not acting as a
fiduciary or agent for, or in connection with, the Company, the Trust, or an lnvestment Manager.
Section 3.22 Iiorcc Mailule. Notwithstandin g an),thing in this Agreement to the contrary, the
Trustee sllall not be rcsponsible or liable for any fhilurc to perform under this Agreemcnt or for any
Losses to the Fund resulting from anv event beyond the rcasonable control ofthe Trustee.
Section 3,23 Resignation. Rerrroval ad.SuesqsJor Trusllccs.(a) The Trustee may resign at any
time upon 120 days writtcn notification to the Company. The Cornpany may remove the Trustcc for any
reason al any time upon 60 days rvritten notification to thc Trustee. Ifa successor Trustee shall not have
been appointed within 120 days after the giving of writtcn notice of such resignation or removal, the
Trustee or Company may apply to any courl of oompetent jurisdiction to appoint a successor Trustee to
act until such time, if any, as a successor shall have been appointed and shall have accepted its
appoinhnent as provided below. If the Trustee shall be adjudged bankupt or insolvent, a vacancy shall
thereupon be deemed to exist in thc office of Trustee and a successor shall thereupon be appointed by lhe
Company. Any successor Trustee appointed hereunder shall execute, acknorvledge and deliver to thc
Corrpany an appropriate written instrument accepting such appointment hereunder, subject to all the
terms and conditions hercof, and thereupon such successor Trustee shall become fully vested with all the
rights, powers, trusts, duties and obligations of its predecessor in trust hereunder, with like e{Iect as if
originally named as Trustee hereunder. The predecessor Trustee shall upon written rcquest of the
Company, and payment of all t'ees and expenses, deliver to the successor Trustee the corpus of the Funds
u
and pcrform such other acts as may be required or be desirable to vest and confirm in said succcssor
Trustee all right, title and intercst in the corpus olthe Fund to which it succeeds.
Notwithstanding anything herein to the contrary, in the event Trustee becomcs subject to a proceeding
under a U.S. special resolution regimc, the transfer of the Agreement (and any interest and obligation in
or under, and any properry securing, the Agreemcnt) from Trustee will be clfcctive to the same extent as
the transf'er would be effective under the U.S. spccial resolution regime if the Agreemcnt (and any interest
and obligation in or under. and any propert)' securing, thc Agreernent) were govemed by the larvs of the
United States or a state of thc United Statcs; and, in thc cvent the Trustee or any affiliate becomes subject
to a proceeding undcr a U.S. special resolution regime, default rights with rcspect to the Agreement that
rnay be exerciscd against Trustee are permitted to be exercised to no greater extent than the default rights
could be exercised under the U.S. special resolution regime if the Agreement were govemed by thc laws
ofthe United States or a statc of the United States.
Section 3.24 Merger of Trustee Any corporalion into r,,hich the Trustee may be mergcd or
with which it may be consolidatcd, or any corporation rcsulting f'rom any merger or consolidalion to
whioh the Trustee shall be a party, or any corporation to which the cor?orate trust functions ofthe Trustee
may be transt'erred, shall be the successor Trustee under this Agreement without the necessity of
executing or tiling any additional acceptance of this Agreement or the performance of any lunher act on
the part ofany othcr parties hereto.
Section 3.25 Required Disclosure. With respect to Securities that are registered under the
Securities Exchange Act ol 1914, as amended (the "Exchange Act") or that are issued by an issuer
registered under the Inveshnent Company Act of 1940, as amended, Section l4(b) of the Exchange Act
and Rule l4b-2 prornulgated thereunder require the Trustee to disclose to issuers ofsuch Securities, upon
their request, the name, address and securities position of the Trustee's clients who are "beneficial
owners" (as defined in the Ilxchange Act) ol the issuer's Securities, unless the beneficial owner objects to
such disclosure. The Exchange Act defines a "beneficial owncr" as any person who has or shares the
power to vote a security (pursuant to an agreement or otherwisc) or who directs the voting of a security.
The Company has designated on the signature page hereof, whether: ( I ) as beneficial owner, it objects to
the disclosurc of its name, address and securities position to any U.S. issuer that requests such
infomration pursuant to the Exchange Act lor the specific purposc of direct communications between
such issuer and the Company; or (2) the l'rustee shall contact lhe Investment Manager with respect to
relevant Securities to make the decision whether it objects to the disclosure of the beneficial owner's
name, address and sccurities position to any U.S. issuer that rcquests such information pursuant to the
Exchange Act.
With respect to Securities issued oulside the United States, the Trustee shall disclose inlbrmation required
by any Depository, the laws or regulations of the relevant jurisdiction, rules of the rclevant stock
exchange or organizational documcnts of an issuer. The Trustee is also authorized to supply any
information regarding the Fund that is required by any law, regulation or rules norv or hereafier in effecl.
The Company agrees to supply the Trustee with any required information if it is not otheru,ise reasonably
available to thc l-rustee.
Scction3.26 Sanctions.
(a) Throughout the tenn of this Master lrust Agrcement, the Company agrees it (i) shall
maintain, and comply with, an Economic Sanctions Compliance Program which includes measures to
accornplish effcctive and timely scannilg of all rclevant data with respect to incoming or outgoing assets
or transactions; (ii) shall ensure that neither the Company nor any ot- its affiliates, directors, or officers, or
tl
Investment Managers is an individual or entity that is, or is owned or controlled by an individual or entity
that is: (A) the target ol Sanctions, or (B)located, organizcd or resident in a country or tenitory that is, or
u,hose govemmcnt is, the target ol Sanctionsl and (iii) hall not, dircctly or indirectly, cause or permit the
use ofthe Funds in any manner that would result in a violation of Sanctions.
(b) Thc Ciompany will promptly provide to the Trustee such inlonnation as the Trustee
reasonably requests in connection with the matters referenced in this Section3.26, including infbrmation
regarding thc accounls hereundcr, the assets held or to be held in the accounts, the source thereof, and the
idcntity of any individual or entity having or claiming an intercst therein. I'he Trustee may decline to act
or providc sen,ices in respcct ofany account, and take such other actions as it, in its reasonablc discretion,
deems necessary or advisable, in comection with the matters relcrenced in this Section3,26. If the
Trustee declines to act or provide services as provided in the preceding sentence. except as otherwise
prohibited by applicable law or official request, the Trustee will inform the Company thereof as soon as
rcasonably practicable.
(c) As used hcrein
"Economic Sanctions Compliance Program" shall mean those programs, policies,
procedures and measures designcd to ensure compliancc with, and prevent violations of, Sanctions.
"Sanctions" shall mean all economic sanctions, laws, rules, regulations, executive orders
and requirements administcred by any govemmental authority of the U.S. (including the U.S. Office of
Foreign Assets Control) and the European lJnion (including an-v national jurisdiction or member state
thereofl, in addition to any other applicable authority with j urisdiction over the Company.
Section 4.01 'l he Cornpany may amend this Agreement from time to time, provided such
amendment does not cause a Qualified Fund to fail to quali$, as a Nuclear Decommissioning Reserve
Fund under section 468.4 of the Code and the regulations thereunder. The Qualified Fund is established
and shall be maintained fbr the sole purpose of qualifying as a Nuclear Decommissioning Reserve Fund
under section 468,4 of thc Code and the regulations thereunder. If a Qualified Fund would lail to so
qualiff because of any provision contained in this Agreement, this Agreement shall be deemed to be
amended as necessary to conform with the requirements of section 468A and thc regulations thereunder.
lf a proposed amendment shall affect the rcsponsibility of the Trustee, such amendment shall not bc
considered valid and binding until such time as the amcndment is executed by the Trustee.
[Notwithstanding any provision herein to the contrary, this Agreement cannot be amended in any material
respect without first providing 30 working days prior written notice to the NRC's Director of the Olfice
of Nuclear Reactor Rcgulation or the Director ofthe Oftice ol Nuclear Material Safety and Saleguards, as
applicablel.
Scction 5.01 General Powers. 'l'he Trustee shall have and exercise the following powers and
authority in the administration of the l.und only on the direction of an Investment Manager where such
powers and authority relate to a separate account established for an Investment Manager, and in its sole
discretion where such powers and authority rclate to investments made by the Trustee in accordance with
Section 3.02(b):
l3
ARTICLE tV
Amendments
ARTICI,E V
Powers ofthe Trustee and lnvestment Manaqer
(a) to purchase, reccive or subscribe for any sccurities or other propefty and to retaln ln
trust such sccurities or other property;
(b) to sell, exchange, convey, transfer, or otherwise disposc of any property held in thc
Fund and to make any sale by private contract or public auction; and no person dealing with the Trustee
shall be bound to see to the application of thc purchase money or to inquire into the validity, expediency
or propricty ofany such sale or other disposition;
(c) to lorward to thc Authorized Person designated by the Company proxics or ballots
for any stocks, bonds or other securities held in the Funds in a lorm to cnable the Authorizcd Person to
effect the voting ofproxies, excluding bankruptcy matters to which the Trustee's duties are set tbrth in (e)
below;
(d) to submit or cause to be submitted to the Company or the Invcstment Manager, as
designated by the Company, inlbrmation received by the Trustec, or summaries of information, regarding
otnership rights pertaining to propedy held in thc Funds, in accordance with the Trustee's practices,
excluding bankruptcy matters to which thc Trustee's duties are set forth in Section (e) belou,;
(e) to fbrward to the Authorizcd Person designated by thc Company an initial notice ol
bankruptcy cases relaling to securitics held in the Funds and a notice of any required action related to
such bankruptcy cascs as may he actually received by the Trustee. No furthcr action or notification
related to the bankruptcy case shall be required abscnt the specific agrccment of the panics hereto;
(1) to exercise any rights appurtenant to any such stocks, bonds or other securities for thc
conversion thereof into other stocks, bonds or securilics, or to cxercise rights or options to subscribe lor
or purclrase additional stocks, bonds or other securities, and to make any and all necessary payments rvith
respect to any such conversion or exercisc, as well as to write options with respect to such stocks and to
cnter into any transactions in other fbrms of options *'ith respect to any options w'hich the Fund has
outstanding at any tinre;
(g) to join in, disscnt liom or oppose the reorganization, recapitalization, consolidation,
sale or rnerger of corporations or properties of which the Fund may hold stocks, bonds or other securities
or in rvhich it may be interested, upon such terms and conditions as deemed wise, to pay any expenses,
assessments or subscriptions in connection therewith, and to accept any securities or property, whether or
not trustees would be authorized to invest in such securities or properry", rvhich may be issued upon any
such reorganization, rccapitalization, consolidation, sale or merger and thereaflcr to hold the same,
without any dury to scll;
(h) to enter into any tlpc of contract with any insurance company or companies, either
for the purposes of investment or otherwise; provided that no insurancc conpany dealing with the
Trustec shall be considercd to be a partv to this Agrcement and shall only be bound by and held
accountable to the extent of its contract with the Trustee. L,xcept as otherwise provided by any contract,
the insurance company nced only look to thc'l'rustee with regard to any instructions issued and shall
makc disbursements or payrnents to any person, including the Trustee, as shall be directed by the Trustce.
Where applicable, thc liustee shall be the sole owner ofany and all insurunce policies or contracts issucd.
Such contracts or policies, unless otherwise detcrmined, shall be held as an asset of the Fund lor
safekeeping or custodian purposes only;
(i) to lend the assets of the Fund in accordancc with the telms and condilions of a
separate securities lending agreement; and
I]
() to purchase, enter, sell, hold, and gcnerally deal in any manner in futures and/or
options contracts, short-selling programs, foreign exchange or loreign exchange contracts, swaps,
synthetic GlCs, BICs and similar instruments and other derivative investments or of any othcr propert-v;
to grant, purchasc, sell, exercise, pennit to expire, penlit to be held in escrow, and othcrwise to acquire,
dispose of, hold and generally deal in any manner with and in all tbrrns of options in any combination.
Settlements of transactions may be effected in trading and processing practices customary in the
jurisdiction or market where the transaction occurs. The Company acknowledges that this may, in certain
circumstances, require the delivery of cash or securities (or othcr propefiy) without the concurent receipt
of securities (or other property) or cash and, in such circumstances, the Company shall have sole
responsibility for nonreceipt ofpayment (or late payrnent) by the counterparty.
Notwithslanding anything in this Agreement to the contrary, the Trustee shall not be responsible or liable
for any failure to perform under this Agreement or lor any losses to the lund resulting from any event
beyond the reasonable control ofthe Trustee.
Scction 5.02 Specific Powers ofthe Trustee. I'he Trustec shall have thc follorvin g powers and
authority, to be exerciscd in its sole discrclion with respect to the Fund
(a) to appoint agents, Subcustodians, subtrusl.ees, or counsel, domestic or foreign, as to
part or all of the f.und and f'unctions incident thereto wherc, in the sole discretion of the Trustee, such
delegation is necessary in order to facilitate the operations of thc Fund and such delegation is not
inconsistent u'ith the purposcs of the [und or in contravention of any applicable law. To the cxtent that
the appointment of any such person or cntity may be deemed to be the appoinlment of a fiduciary, the
Trustce may exercise the powers granted hereby to appoint as such a fiduciary any pcrson or entitv.
Upon such delegation, the Trustee may requirc such reports, bonds or written agreements as it decms
necessary to properly l]]onitor thc actions of its delegatel
(b) to cause any investment, either in whole or in paft, in the Fund to be registcred in, or
transferred into, the Trustee's name or thc names of a nominee or nominees, including but no1 limited to
that of the Trustec or an affiliate of thc Trustee, a clearing corporation, or a Depository, or in book entry
form, or to retain any such investmcnt unregistercd or in a form perntitting transfer by dclivery, providcd
that the books and records of thc Truslee shall at all times shorv that such investments are a part of the
Fund; and to cause any such investment, or tlre evidcnce thereol, to be held by the Trustcc, in a
Depository, in a clearing corporation, in book entry fomr, or by any other entity or in any othcr manner
permitted by law;
(c) to make, execute and dcliver, as trustee, any and all deeds, Icases, mortgages,
conveyances, waivers, releases or other instruments in *'riting necessary or desirable for the
accornplishrn en I ot any ofthc loregoing powcrs:
(d) to dclend against or participate in any legal actions involving the FuDd or the l rustee
in its capacity stated hcrcin, in the manncr and to the cxtent it deems advisable;
(e) to form corporations and to create trusts, to hold litle to any security or other
propertv, to enter into agreements creating partnerships or joint venlures lor any purpose or purposes
dctermined by the Trustee to bc in the best intcrests ofthc Fund;
l5
(0 to establish and maintain such separatc aocounts in accordance with the instructions
of the as the Company deems necessary for the proper administration ofthe Plans, or as detennincd to be
necessary by the Trustee;
(g) to hold uninvested cash in its commercial bank or that ofan affiliate, as it shall deem
reasonable or necessary;
(h) to invest in any collectivc, common or pooled trust fund operatcd or maintained
cxclusively, for the comflringling and colleclive investment of monies or other assets including any such
fund opcrated or maintained by the Trustee or an affiliate. 'lhe Company exprcssly undcrstands and
agrees that any such collective fund may providc for the lending of its securities by thc collective lund
trustee and that such collcctive fund's trustee will receive compensation lbr thc lending ol securities that is
separate from any compensation of the Trustee hereunder, or any compcnsation of the collective fund
trustee lor the management of such collective fund. 'lhe Trustee is aulhorized to invest in a collectivc
fund which invcsts in Mellon Financial Corporation stock in accordance with thc lerms and conditions of
the Department of Labor Prohibited Transaction Exemption 95-56 (the "Exemption") granted to Mellon
Bank, N.A. and its affiliates and to use a cross-trading program in accordance rvith thc Exemption. The
Company acknowledgcs receipt of the notice entitled "fiross-Trading Information", a copy of wl.rich is
attached to this Agreement as Exhibit D;
(i) to invcst in open-end and closed-end investment companies, including those lor
which the Trustee or an affiliate provides services lbr a fee, regardless of the purposcs for which such
fund or t'unds were created, and any partnership, limited or unlimited, joint venture and other lorms of
joint enterprise created for any lawful purpose; and
O to generalty take all action, whether or not expressly authorized, which the Trustee
may deem necessary or desirable fbr the protection ofthe Fund.
Notwithstanding anything clse in this Agreement to the contrar,,-, including, rvithout
Iimitation, any specific or gcneral powcr granted to the Trustee and to the Investmcnt Managcrs,
including the pou'er to invest in real prope(y, no portion of the Fund shall be invested in real estatc. !or
this purpose "real estate" includes, but is not limited to, real property, leaseholds or n)ineral interesls.
The powers described in this Article V may be excrcised by the Trustce with or u,ithout
instructions, from the Cofirpany or a party authorized by the Company to act on its behalf, but phere the
Trustee acts on Authorized Instructions, the Trustee shall bc fully protected as described in Section 3.03.
Without limiting the generality ofthe foregoing, the Trustee shall not be liable lor the acts or omissions of
any person appointed under paragraph (a) of this Section 5.02 pursuant to Authorized Instructions.
Section 6.01 The Qualified Fund shall tenninate upon the later of (A) the earlier ol either (i)
substantial completion ol decornmissioning of their respective Unit, as detlncd in the Special Terms, or
(ii) disqualification of a Qualified Fund by the lntemal Revenue Sen'ice as providcd in Treas. Reg.
$1.468A-5(c) or any corresponding future Treasury Regulation or (B) tcrmination by the lJ.S. Nuclear
Regulatory Cornmission ofthe Company's operating license p'ith respect to dre Unit. 'l'he Nonqualified
L-unds shall terminate upon tcrmination by the U.S. Nuclear Regulatory Commission of thc Cornpany's
operating license with respcct to their rcspective Unit. Upon termination of any lund, thc assets of lhe
terminated Fund shall be distributed in accordance with any written directive of the applicablc PUC
conceming tenrination of such Fr"rnd. Absent a written dircctive of the applicable PUC within thifly (30)
l6
ARTICLE VI
Termination
days after it is notified of the termination, all of the assets shall be distributed to the Company. 'Ihe
Company shall provide the'lrustee with notification that a Qualified Fund or the Nonqualified Fund, as
the case may be, has terminated and with either (i) the writtcn directive of the applicable PUC or (ii) a
certificate signed by its Chairman of the Board, its Presidcnt or one of its Vice Presidcnts and its
Treasurer or an Assistant Treasurer stating that there is no PUC written directivc and that thirty (30) days
have elapsed since notificalion to thc applicable PUC of termination, as the case may be, prior to
dislribution ofthe assets olthe terminated Fund.
ARTICLE VII
Misce llaneous
Section 7.01 Binding Asreement. A11 covcnants and agreen]cnts in this Agreemcnt shall be
binding upon and inure to the bcnefit of the respective panies hereto, thejr successors and assigns,
l he Bank of Nerv York Mellon
BNY Mellon Center
Pittsburgh, PA 15258
or at such other address as any of thc above may have fumished to the other parties in writing by
registered mail, retum receipt requested.
Section 7.03 Govemin[ Law. The Funds have been established pursuant to this Agreenrent in
accordance with the requirements fbr a trust under the lau,s of the state of New York, and this Agreement
shall be govemed by and construed and enlbrced in accordance rvith the sr.rbstantive lar,\'s of the state of
New York without regard to its conflicts of law provisions. The parties consent to the jurisdiction of a
state or federal court situated in Ne*'York Ciry*, New York in connection with any dispute hereunder.
the Company irrevocabl.v waives any objection it may now or hereafter have to venue in such court and
any claim that a proceeding brought in such court has been brought in an inconvenient forum. 'l he partics
hereby expressly waive, to the full extent permitted by applicablc law, any right to trial by jury witli
respect to any judicial proceeding arising from or related to this Agreement.
Section 7.04 (a) Contractual Income. The Trustee shall credit the Fund with incomc and
maturify proceeds on securities on contractual payment date net of any taxes or upon actual receipt as
agreed between the Trustee and the Company. To the extent the Company and the Trustee have agreed to
credit income on contractual payment date, the Trustee may reverse such accounting entries with back
value to the contractual payment date if the Trustee reasonably believcs that such amount will not be
received by it.
Attn:
Room
t1
Section 7.02 Notices. All notices and cornmunications hereunder shall be in writing and shall
be deemed to be duly given on the date mailed if sent by registcred mail, return receipt requested, as
follows:
(b) Contractual Settlement. The Trustee will attend to the settlement of securities
transaclions on the basis of either contractual settlement date accounting or actual settlemcnt date
accounting as agreed betrveen the Company and the Trustee. To the extent the Company and the Trustee
have agreed to settle certain securities transactions on the basis of contractual settlement date accounting,
the lrustee may reversc rvith back value to the contractual settlement date any cntry relating to such
contractual settlement where the related transaction remains unsettled according to established
procedures.
Section 7.05 ReDresentations. The Company and the Trustee hereby each represent and
warrant to the other that it has full authority to enter into this Agreement upon the terms and conditions
hereof and that the individual executing this Agreement on its behalf has the requisite authority to bind
the Compan)' and the Trustee to this Agreemcnt.
Section 7.06 LlSA PATRIOT Act. The Company hereby acknowledges that the Trustee is
subject to federal laws, including the Customer Identification Program ("CiP") requirements under the
USA PATRIOT Act and its implementing regulations, pursuant to which the Truslee must obtain, veri!
and record information that allows the Trustce to identil, the Company. Accordingly, prior to opening an
account hereunder, the Trustee will ask the Company to provide certain information including, but not
limited to, the Company's name, physical address, tax identification number and other information that
will help the Trustee to identiry and verify the Company's identity such as organizational documents,
certificate of good standing, license to do business, or other pertinent identitying infonnation. The
Company agrees thal the'Irustee cannot open an account hereunder unless and until the Trustee verifies
the Company's identity in accordance u,ith the Trustee's CIP.
Section 7.07 CounterDarts. This Agreement may be executed in several counterparts, and all
such counterparts executed and delivered, each an original, shall constitute but one and the same
instrument.
lll
IN WITNESS WIIEREOF, the parties hereto, each intending to be legally bound hereby,
have hereunto set their hands and seals as of the day and year first above written.
PA('IFICORP
tsy;
Name:
Title:
THE BANK OF NEW YORK MELLON
By
Name
Title:
Pursuant to Section 3.25, as Beneficial Owner:
[ ] Company OBJECTS to disclosure
[ ] Company DOES NOT OBJECT to disclosure
[ ] Trustee shail CONTACT THE lNVESTMENT MANAGER with respect to relevant Secu ties to
makc the decision whether it objects to disclosure
IF NO BOX IS CI.IECKED, TRTJSTHE SHAI,L RELEASE SUCH INI.ORMATION L]NTIL IT
RECI]IVES A CON'TRARY WRITI'EN INSTRUCTION f ROM THE COMPANY.
t9
WASHINGTON AFFILIATED INTEREST FILING
ATTACIIMENT B
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WASHINGTON AFFILIATED INTEREST FILING
VERIFICATION
VERIFICATION
I, Jeffery B. Erb, duly elected Chief Corporate Counsel and Corporate Secretary of
Berkshire Hathaway Energy Company, an Iowa corporation, have personal knowledge of
this affiliated interest transaction. Attached to this filing are true and accurate copies of
the original agreements between PacifiCorp and The Bank of New York Mellon Trust
Company, N.A.
I declare upon the penalty ofperjury, that the foregoing is true and correct.
o
Executed on Decernber)4 2019 at Portland, Oregon.
J
Counsel and
Corporate Secretary
Berkshire Hathaway Energy Company
State of OREGON
County of Multnomah
Signed and attested before me on this{$day of Decanber, 2Ol9 by Jefferv B. Brb.
i&\1.V',..{rr..
Official Stamp
Anne Kohls
Notary Public - Oregon
Commrssion No. 965746
lvly Commissron Exprres September 17, 2021
O)rrr^LHot{.-
Notary Public - State of Oregon
My Commission expires aJ.)c-t