AMENDED AND RESTATED
FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of July 2, 2001 among Nations Fund Trust, Nations
Fund, Inc., Nations Reserves, Nations Separate Account Trust, Nations Master
Investment Trust and Nations Funds Trust on behalf of their respective mutual
funds identified on the Appendix hereto (each, a "Fund"; collectively, the
"Funds") and The Bank of New York ("BNY").
W I T N E S S E T H:
WHEREAS, each Fund has appointed BNY as a Foreign Custody Manager under
a Foreign Custody Manager Agreement dated December 1, 1997 as amended as of
August 6, 1998 (the "Prior Agreement");
WHEREAS, each Fund and BNY desire to amend and restate the Prior
Agreement;
WHEREAS, BNY desires to continue to serve as a Foreign Custody Manager
and perform the duties set forth herein on the terms and condition contained
herein;
NOW THEREFORE, in consideration of the mutual promises hereinafter
contained in this Agreement, each Fund and BNY hereby agrees as follows:
ARTICLE I.
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
1. "Board" shall mean the board of directors or board of trustees, as
the case may be, of the relevant Fund.
2. "Eligible Foreign Custodian" shall have the meaning provided in the
Rule (as defined below).
3. "Monitoring System" shall mean a system established by BNY to
fulfill the Responsibilities (as defined below) specified in clause (b) of
Section 1 of Article III of this Agreement.
4. "Responsibilities" shall mean the responsibilities delegated to BNY
as a Foreign Custody Manager with respect to each Specified Country (as defined
below) and each Eligible Foreign Custodian selected by BNY, as such
responsibilities are more fully described in Article III of this Agreement.
5. "Rule" shall mean Rule 17f-5 under the Investment Company Act of
1940, as amended on June 12, 2000.
6. "Specified Country" shall mean each country listed on Schedule I
attached hereto, and each country, other than the United States, with respect to
which an Authorized Person (as defined in one or more Custody Agreement(s)
between the relevant Fund and BNY as custodian (each, a "Custody Agreement"))
has given settlement instructions to BNY as custodian (the "Custodian") under
the Custody Agreement.
ARTICLE II.
BNY AS A FOREIGN CUSTODY MANAGER
1. Each Fund, by authority of its Board, hereby delegates to BNY with
respect to each Specified Country the Responsibilities.
2. BNY accepts the Board's delegation of Responsibilities with respect
to each Specified Country and agrees in performing the Responsibilities as a
Foreign Custody Manager to exercise reasonable care, prudence and diligence such
as a person having responsibility for the safekeeping of the Funds' Foreign
Assets (as defined in the Rule) would exercise.
3. BNY shall provide to the Board at such times as the Board deems
reasonable and appropriate based on the circumstances of the Fund's foreign
custody arrangements written reports notifying the Board of the placement of
assets of the Fund with a particular Eligible Foreign Custodian within a
Specified Country and of any material change in the arrangements (including, but
not limited to, the contract governing such arrangements) with respect to assets
of the Fund with any such Eligible Foreign Custodian and such additional
information regarding such matters as and when the Board may reasonably request
and containing such detail as the parties shall agree.
ARTICLE III.
RESPONSIBILITIES
1. (a) Subject to the provisions of this Agreement, BNY shall with
respect to each Specified Country select an Eligible Foreign Custodian. In
connection therewith, BNY shall: (i) determine that Foreign Assets of each Fund
held by such Eligible Foreign Custodian will be subject to reasonable care,
based on the standards applicable to custodians in the relevant market in which
such Eligible Foreign Custodian operates, after considering all factors relevant
to the safekeeping of such Foreign Assets, including, without limitation, those
contained in Section (c)(1) of the Rule; (ii) determine that each Fund's foreign
custody arrangements with each Eligible Foreign Custodian are governed by a
written contract with the Custodian which will provide reasonable care for the
Fund's Foreign Assets based on the standards specified in paragraph (c)(1) of
the Rule; and (iii) determine that each contract with an Eligible Foreign
Custodian shall include the provisions specified in paragraph (c)(2)(i)(A)
through (F) of the Rule or, alternatively, in
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lieu of any or all of such (c)(2)(i)(A) through (F) provisions, such other
provisions as BNY determines will provide, in their entirety, the same or a
greater level of care and protection for the Foreign Assets of each Fund as such
specified provisions in their entirety.
(b) In addition, subject to the provisions of this Agreement, BNY shall
with respect to each Eligible Foreign Custodian (i) monitor pursuant to the
Monitoring System (x) the appropriateness of maintaining the Foreign Assets of
the Funds with a particular Eligible Foreign Custodian pursuant to paragraph
(c)(1) of the Rule and (y) performance of the contract governing such
arrangement under paragraph (c)(2) of the Rule; and (ii) advise the appropriate
Fund(s) whenever an arrangement (including any material change in the contract
governing such arrangement) described in preceding clause (b)(i) no longer meets
the requirements of the Rule.
2. For purposes of clause (b)(i) of preceding Section 1 of this
Article, BNY's determination of appropriateness shall not include, nor be deemed
to include, any evaluation of Country Risks associated with investment in a
particular country. For purposes hereof, "Country Risks" shall mean systemic
risks of holding, assets in a particular country including, but not limited to,
(a) an Eligible Foreign Custodian's use of any depositories that act as or
operate a system for the central handling of securities or equivalent
book-entries, or a transnational system for the central handling of securities
or any equivalent book-entries in their respective countries of incorporation;
(b) such country's financial infrastructure, (c) such country's prevailing
custody and settlement practices, (d) nationalization, expropriation or other
governmental actions, (e) regulation of the banking or securities industry, (f)
currency controls, restrictions, devaluations or fluctuations, and (g) market
conditions which affect the orderly execution of securities transactions or
affect the value of securities.
ARTICLE IV.
REPRESENTATIONS
1. Each Fund hereby represents that: (a) this Agreement has been duly
authorized, executed and delivered by the Fund, constitutes a valid and legally
binding obligation of the Fund enforceable in accordance with its terms, and no
statute, regulation, rule, order, judgment or contract binding on the Fund
prohibits the Fund's execution or performance of this Agreement; (b) this
Agreement has been approved and ratified by the Board at a meeting duly called
and at which a quorum was at all times present; and (c) the Board or its
investment adviser or investment sub-adviser pursuant to delegated authority has
considered the Country Risks associated with investment in each Specified
Country and will have considered such risks prior to any settlement instructions
being given to the Custodian with respect to any other Specified Country.
2. BNY hereby represents that: (a) BNY is duly organized and existing
under the laws of the State of New York, with full power to carry on its
businesses as now conducted, and to enter into this Agreement and to perform its
obligations hereunder; (b) BNY is a U.S. Bank, as defined in Section (a)(7) of
the Rule; (c) this Agreement has been
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duly authorized, executed and delivered by BNY, constitutes a valid and legally
binding obligation of BNY enforceable in accordance with its terms, and no
statute, regulation, rule, order, judgment or contract binding on BNY prohibits
BNY's execution or performance of this Agreement; and (d) BNY has established
the Monitoring System.
ARTICLE V.
CONCERNING BNY
1. BNY shall not be liable for any costs, expenses, damages,
liabilities or claims, including attorneys' and accountants' fees, sustained or
incurred by, or asserted against, any Fund, except that BNY shall be liable for
all such amounts to the extent the same arises out of the failure of BNY to
exercise the care, prudence and diligence required by Section 2 of Article II
hereof. In no event shall BNY be liable to any Fund, such Fund's Board, or any
third party for special, indirect or consequential damages, or for lost profits
or loss of business, arising in connection with this Agreement.
2. Each Fund shall indemnify BNY and hold it harmless from and against
any and all costs, expenses, damages, liabilities or claims, including
attorneys' and accountants' fees, sustained or incurred by, or asserted against,
BNY by reason or as a result of any action or inaction, or arising out of BNY's
performance hereunder, provided that the Fund shall not indemnify BNY to the
extent any such costs, expenses, damages, liabilities or claims arises out of
BNY's failure to exercise the reasonable care, prudence and diligence required
by Section 2 of Article II hereof.
3. For its services hereunder, each Fund agrees to pay to BNY such
compensation and out-of-pocket expenses as shall be mutually agreed in writing,
it being understood that the parties have no present intention that BNY receive
any compensation or out-of-pocket expenses under this Agreement.
4. BNY shall have only such duties as are expressly set forth herein.
In no event shall BNY be liable for any Country Risks associated with
investments in a particular country.
ARTICLE VI.
MISCELLANEOUS
1. This Agreement constitutes the entire agreement between each Fund
and BNY with respect to the matters covered hereby, and no provision in the
Custody Agreement between the Fund and the Custodian shall affect the duties and
obligations of BNY hereunder, nor shall any provision in this Agreement affect
the duties or obligations of the Custodian under the Custody Agreement.
2. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to BNY, shall be sufficiently given if received by it
at its offices at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other place as BNY may from time to time designate in writing.
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3. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to a Fund shall be sufficiently given if received by
it at its offices at Xxxxxxx X. Xxxxx, Xx., Corporate Secretary, The Nations
Funds, 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxx 00000, with a copy to
Xxxxxx X. Xxxxxx, Bank of America Advisors, LLC, One Bank of America Plaza, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or at such other place as
the Fund may from time to time designate in writing.
4. In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
thereby. This Agreement may not be amended or modified in any manner except by a
written agreement executed by both parties. This Agreement shall extend to and
shall be binding upon the parties hereto, and their respective successors and
assigns; provided however, that this Agreement shall not be assignable by either
party without the written consent of the other.
5. This Agreement shall be construed in accordance with the substantive
laws of the State of New York, without regard to conflicts of laws principles
thereof. Each Fund and BNY hereby consent to the jurisdiction of a state or
federal court situated in New York City, New York in connection with any dispute
arising hereunder. Each Fund hereby irrevocably waives, to the fullest extent
permitted by applicable law, any objection which it may now or hereafter have to
the laying of venue of any such proceeding brought in such a court and any claim
that such proceeding brought in such a court has been brought in an inconvenient
forum. Each Fund and BNY each hereby irrevocably waives any and all rights to
trial by jury in any legal proceeding arising out of or relating to this
Agreement.
6. The parties hereto agree that in performing hereunder, BNY is acting
solely on behalf of the Funds and no contractual or service relationship shall
be deemed to be established hereby between BNY and any other person.
7. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
8. As to any Fund this Agreement shall terminate simultaneously with
the termination of the Custody Agreement between such Fund and the Custodian,
and may otherwise be terminated by either party giving to the other party a
notice in writing specifying the date of such termination, which shall be not
less than ninety (90) days after the date of such notice.
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IN WITNESS WHEREOF, each Fund on behalf of its mutual funds identified
on the Appendix hereto and BNY have caused this Agreement to be executed by
their respective officers, thereunto duly authorized, as of the date first above
written.
NATIONS FUND TRUST
By: /s/ A. Xxx Xxxxxx
---------------------------------------
A. Xxx Xxxxxx
President and Chairman of the Board of
Trustees
NATIONS FUND, INC.
By: /s/ A. Xxx Xxxxxx
---------------------------------------
A. Xxx Xxxxxx
President and Chairman of the Board of
Directors
NATIONS RESERVES
By: /s/ A. Xxx Xxxxxx
---------------------------------------
A. Xxx Xxxxxx
President and Chairman of the Board of
Trustees
NATIONS SEPARATE ACCOUNT TRUST
By: /s/ A. Xxx Xxxxxx
---------------------------------------
A. Xxx Xxxxxx
President and Chairman of the Board of
Trustees
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NATIONS MASTER INVESTMENT TRUST
By: /s/ A. Xxx Xxxxxx
---------------------------------------
A. Xxx Xxxxxx
President and Chairman of the Board of
Trustees
NATIONS FUNDS TRUST
By: /s/ A. Xxx Xxxxxx
---------------------------------------
A. Xxx Xxxxxx
President and Chairman of the Board of
Trustees
THE BANK OF NEW YORK
By: /s/ Xxx Xxxxxx
---------------------------------------
Xxx Xxxxxx
Vice President
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APPENDIX
NATIONS FUNDS TRUST
1. Corporate Bond Portfolio
2. High Income Portfolio
3. Mortgage- and Asset-Backed Portfolio
4. Nations Asset Allocation Fund
5. Nations Bond Fund
6. Nations California Intermediate Municipal Bond Fund
7. Nations California Municipal Bond Fund
8. Nations California Tax-Exempt Reserves
9. Nations Capital Growth Fund
10. Nations Cash Reserves
11. Nations Convertible Securities Fund
12. Nations Florida Intermediate Municipal Bond Fund
13. Nations Florida Municipal Bond Fund
14. Nations Georgia Intermediate Municipal Bond Fund
15. Nations Global Value Fund
16. Nations Government Reserves
17. Nations Government Securities Fund
18. Nations High Yield Bond Fund
19. Nations Intermediate Bond Fund
20. Nations Intermediate Municipal Bond Fund
21. Nations International Equity Fund
22. Nations International Value Fund
23. Nations Kansas Municipal Income Fund
24. Nations LargeCap Index Fund
25. Nations LargeCap Enhanced Core Fund
26. Nations Xxxxxxx 21st Century Fund
27. Nations Xxxxxxx Focused Equities Fund
28. Nations Xxxxxxx Growth Fund
29. Nations Xxxxxxx International Opportunities Fund
30. Nations Maryland Intermediate Municipal Bond Fund
31. Nations MidCap Growth Fund
32. Nations MidCap Index Fund
33. Nations MidCap Value Fund
34. Nations Money Market Reserves
35. Nations Municipal Income Fund
36. Nations Municipal Reserves
37. Nations New York Tax-Exempt Reserves
38. Nations North Carolina Intermediate Municipal Bond Fund
39. Nations Short-Intermediate Government Fund
40. Nations Short-Term Income Fund
41. Nations Short-Term Municipal Income Fund
42. Nations SmallCap Index Fund
43. Nations SmallCap Value Fund
44. Nations Small Company Fund
45. Nations South Carolina Intermediate Municipal Bond Fund
46. Nations Strategic Growth Fund
47. Nations Strategic Income Fund
48. Nations Tax-Exempt Reserves
49. Nations Tennessee Intermediate Municipal Bond Fund
50. Nations Texas Intermediate Municipal Bond Fund
51. Nations Treasury Reserves
52. Nations Value Fund
53. Nations Virginia Intermediate Municipal Bond Fund
NATIONS SEPARATE ACCOUNT TRUST (FORMERLY NATIONS ANNUITY TRUST)
1. Nations Asset Allocation Portfolio
2. Nations Capital Growth Portfolio
3. Nations High Yield Bond Portfolio
4. Nations International Value Portfolio
5. Nations Xxxxxxx Focused Equities Portfolio
6. Nations Xxxxxxx Growth Portfolio
7. Nations Xxxxxxx International Opportunities Portfolio
8. Nations Xxxxxxx 21st Century Portfolio
9. Nations MidCap Growth Portfolio
10. Nations Small Company Portfolio
11. Nations Value Portfolio
NATIONS MASTER INVESTMENT TRUST
1. High Yield Portfolio
2. Nations High Yield Bond Master Portfolio
3. Nations Intermediate Bond Master Portfolio
4. Nations International Equity Master Portfolio
5. Nations International Value Master Portfolio
6. Nations Xxxxxxx Focused Equities Master Portfolio
7. Nations Xxxxxxx Growth Master Portfolio
8. Nations Xxxxxxx International Opportunities Master Portfolio
9. Nations Xxxxxxx 21st Century Master Portfolio
10. Nations SmallCap Value Master Portfolio
11. Nations Strategic Growth Master Portfolio
Last amended: August 1, 2003
IN WITNESS WHEREOF, the parties hereto have caused the amended Appendix
to be executed by their officers designated below as of the 1st day of August,
2003.
NATIONS SEPARATE ACCOUNT TRUST
NATIONS MASTER INVESTMENT TRUST
NATIONS FUNDS TRUST
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Secretary
THE BANK OF NEW YORK
By: /s/ Xxx Xxxxxx
-----------------------------
Xxx Xxxxxx
Vice President
