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").
WITNESSETH:
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
- 2 -
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
- 3 -
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.
- 4 -
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.
- 5 -
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
- 6 -
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
- 7 -
APPENDIX
NATIONS FUND TRUST
1. Nations Government Money Market Fund
2. Nations Tax Exempt Fund
3. Nations Value Fund
4. Nations Strategic Growth Fund
5. Nations Capital Growth Fund
6. Nations MidCap Growth Fund
7. Nations LargeCap Index Fund
8. Nations Managed Index Fund
9. Nations SmallCap Index Fund
10. Nations Aggressive Growth Fund
11. Nations Short-Intermediate Government Fund
12. Nations Short-Term Income Fund
13. Nations Strategic Income Fund
14. Nations Bond Fund
15. Nations Municipal Income Fund
16. Nations Short-Term Municipal Income Fund
17. Nations Intermediate Municipal Bond Fund
18. Nations Florida Intermediate Municipal Bond Fund
19. Nations Florida Municipal Bond Fund
20. Nations Georgia Intermediate Municipal Bond Fund
21. Nations Georgia Municipal Bond Fund
22. Nations Maryland Intermediate Municipal Bond Fund
23. Nations Maryland Municipal Bond Fund
24. Nations North Carolina Intermediate Municipal Bond Fund
25. Nations North Carolina Municipal Bond Fund
26. Nations South Carolina Intermediate Municipal Bond Fund
27. Nations South Carolina Municipal Bond Fund
28. Nations Tennessee Intermediate Municipal Bond Fund
29. Nations Tennessee Municipal Bond Fund
30. Nations Texas Intermediate Municipal Bond Fund
31. Nations Texas Municipal Bond Fund
32. Nations Virginia Intermediate Municipal Bond Fund
33. Nations Virginia Municipal Bond Fund
NATIONS FUND, INC.
1. Nations Prime Fund
2. Nations Treasury Fund
3. Nations Equity Income Fund
4. Nations Small Company Fund
NATIONS RESERVES
1. Nations Government Reserves
2. Nations Municipal Reserves
3. Nations Cash Reserves
4. Nations Treasury Reserves
5. Nations Money Market Reserves
6. Nations California Tax-Exempt Reserves
7. Nations International Equity Fund
8. Nations International Value Fund
9. Nations Emerging Markets Fund
10. Nations Convertible Securities Fund
11. Nations California Municipal Bond Fund
12. Nations Intermediate Bond Fund
13. Nations Blue Chip Fund
NATIONS SEPARATE ACCOUNT TRUST (FORMERLY NATIONS ANNUITY TRUST)
1. Nations Value Portfolio
2. Nations Xxxxxxx International Opportunities Portfolio
3. Nations Marisco 21st Century Portfolio
4. Nations Xxxxxxx Focused Equities Portfolio
5. Nations Xxxxxxx Growth & Income Portfolio
6. Nations Capital Growth Portfolio
7. Nations Small Company Portfolio
8. Nations Asset Allocation Portfolio
9. Nations High Yield Bond Portfolio
10. Nations International Value Portfolio
11. Nations MidCap Growth Portfolio
NATIONS MASTER INVESTMENT TRUST
1. Nations Intermediate Bond Master Portfolio
2. Nations Blue Chip Master Portfolio
3. Nations International Equity Master Portfolio
4. Nations Xxxxxxx Focused Equities Master Portfolio
5. Nations Xxxxxxx Growth & Income Master Portfolio
6. Nations International Value Master Portfolio
7. Nations High Yield Bond Master Portfolio
8. Nations Xxxxxxx 21st Century Master Portfolio
9. Nations Xxxxxxx International Opportunities Master Portfolio
10. High Yield Portfolio
11. International Bond Portfolio
NATIONS FUNDS TRUST
1. Nations High Yield Bond Fund
2. Nations MidCap Index Fund
3. Nations Kansas Municipal Income Fund
4. Nations Xxxxxxx 21st Century Fund
5. Nations Xxxxxxx International Opportunities Fund
6. Nations Financial Services Fund
7. Nations Classic Value Fund
8. Nations Global Value Fund
9. Nations Asset Allocation Fund
10. Nations Government Securities Fund
11. Nations Xxxxxxx Focused Equities Fund
12. Nations Xxxxxxx Growth & Income Fund
13. Nations MidCap Value Fund
14. Nations LargeCap Value Fund
Last amended: November 19, 2001
IN WITNESS WHEREOF, the parties hereto have caused the amended Appendix to
be executed by their officers designated below as of the 19th day of November,
2001.
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
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/ A. Xxx Xxxxxx
--------------------------------
Xxx Xxxxxx
Vice President
