FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of June 15, 2001, between The Bank of New York ("BNY")
and each Xxxxxx Xxxxxxx Xxxx Xxxxxx Fund having a Custody Agreement with BNY
and listed on Exhibit A hereto (each a "Fund").
W I T N E S S E T H:
WHEREAS, the Fund desires to appoint BNY as a Foreign Custody Manager on
the terms and conditions contained herein;
WHEREAS, BNY desires to serve as a Foreign Custody Manager and perform the
duties set forth herein on the terms and conditions contained herein;
NOW THEREFORE, in consideration of the mutual promises hereinafter
contained in this Agreement, the Fund and BNY hereby agree 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 Fund.
2. "ELIGIBLE FOREIGN CUSTODIAN" shall have the meaning provided in the
Rule.
3. "FOREIGN ASSETS" shall have the meaning provided in the Rule.
4. "MONITORING SYSTEM" shall mean a system established by BNY to fulfill
the Responsibilities specified in clauses 1(d) and 1(e) of Article III of this
Agreement, which system shall comply with paragraph (c)(3) of the Rule.
5. "RESPONSIBILITIES" shall mean the responsibilities delegated to BNY as
a Foreign Custody Manager with respect to each Specified Country and each
Eligible Foreign Custodian selected by BNY, as such responsibilities are more
fully described in Article III of this Agreement.
6. "RULE" shall mean Rule 17f-5 under the Investment Company Act of 1940,
as amended on June 12, 2000.
7. "SPECIFIED COUNTRY" shall mean each country listed on Schedule I
attached hereto, as amended from time to time by BNY, and each country, other
than the United States, constituting the primary market for a security with
respect to which the Fund has given settlement instructions to The Bank of New
York as custodian (the "Custodian") under its Custody Agreement with the Fund.
ARTICLE II.
BNY AS A FOREIGN CUSTODY MANAGER
1. The Fund on behalf 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 Fund's
Foreign Assets would exercise.
3. BNY shall provide to the Board and to the Fund's investment adviser 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 and the Fund's investment adviser 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 the
contract governing such arrangements) with respect to assets of the Fund with
any such Eligible Foreign Custodian.
ARTICLE III.
RESPONSIBILITIES
1. 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: (a) determine that Foreign Assets of the 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 assets, including, without limitation, those contained
in paragraph (c)(1) of the Rule; (b) determine that the 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
assets based on the standards specified in paragraph (c)(1) of the Rule; (c)
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 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 Foreign Assets
of the Fund as such specified provisions in their entirety; (d) monitor
pursuant to the Monitoring System the appropriateness of maintaining Foreign
Assets of the Fund with a particular Eligible Foreign Custodian pursuant to
paragraph (c)(1) of the Rule and the performance of the contract governing such
arrangement; and (e) advise the Fund and its investment adviser whenever BNY
determines under the Monitoring System that an arrangement (including, any
material change in the contract governing such arrangement) described in
preceding clause (d) no longer meets the requirements of the Rule, or that an
Eligible Foreign Custodian would no longer treat assets of the Fund it holds
with reasonable care based on the standards applicable to custodians in the
relevant market. In the event BNY shall have made either determination
described in the preceding sentence, BNY shall promptly select another Eligible
Foreign Custodian in the Specified Country and shall arrange for transfer of
the Fund's assets to that custodian as soon as practicable; it being
understood, however, that in the event BNY shall have determined that no other
Eligible Foreign Custodian in the Specified Country would afford reasonable
care based on the applicable standards in the relevant marketplace, BNY shall
promptly so advise the Fund and shall act in accordance with the instructions
of the Fund with respect to the disposition of any Fund assets held by that
custodian.
2. For purposes of clause (d) 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 or a transnational system for the central handling of
securities or any equivalent book-entries; (b) such country's, but not any
selected Eligible Foreign Custodian'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. The 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; and (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.
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 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,
2
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, the Fund except 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 the Fund,
the 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. The Fund shall indemnify BNY and hold it harmless from and against any
and all costs, expenses, damages, liabilities or claims, including reasonable
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, the Fund agrees to pay to BNY such
compensation and out-of-pocket expenses as shall be mutually agreed.
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 the Fund and
BNY as a foreign custody manager, and no provision in the Custody Agreement
between the Fund and the Custodian shall be construed so as to affect the
duties and obligations of BNY hereunder or conflict with the terms of this
Agreement, 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.
3. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Fund shall be sufficiently given if received
by it at 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. The Fund and BNY hereby consent to the exclusive jurisdiction of a
state or federal court situated in New York City, New York in connection with
any dispute arising hereunder. The 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. The 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.
3
6. The parties hereto agree that in performing hereunder, BNY is acting
solely on behalf of the Fund and no contractual or service relationship shall
be deemed to be established hereby between BNY and any other person by reason
of this Agreement.
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. This Agreement shall terminate simultaneously with the termination of
the Custody Agreement between the 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.
IN WITNESS WHEREOF, the Fund and BNY have caused this Agreement to be
executed by their respective officers, thereunto duly authorized, as of the
date first above written.
EACH XXXXXX XXXXXXX XXXX
XXXXXX FUND LISTED ON EXHIBIT
A HERETO
By: /s/ Xxxxx Xxxx
------------------------------
Xxxxx Xxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. XxXxxx
------------------------------
Xxxxxx X. XxXxxx
Title: Vice President
4
SCHEDULE 1
SPECIFIED COUNTRIES
COUNTRY/ COUNTRY/
MARKET SUBCUSTODIAN(S) MARKET SUBCUSTODIAN(S)
ARGENTINA Banco Rio de la Plata LITHUANIA Vilniaus Bankas
AUSTRALIA National Australia Bank Ltd. LUXEMBOURG Banque et Caisse d'Epargne de l'Etat
AUSTRIA Bank Austria AG MALAYSIA HongKong Bank Malaysia Berhad
BAHRAIN HSBC Bank Middle East MALI Societe Generale de Banques en Cote d'Ivoire
BANGLADESH Standard Chartered Bank MALTA HSBC Bank Malta p.l.c
BELGIUM Banque Bruxelles Xxxxxxx MAURITIUS HSBC
BENIN Societe Generale de Banques en Cote d'Ivoire MEXICO Banco Nacional de Mexico
BERMUDA Bank of Bermuda Limited MOROCCO Banque Commerciale du Maroc
BOLIVIA Citibank, N.A. NAMIBIA Stanbic Bank Namibia Limited
BOTSWANA Barclays Bank of Botswana Ltd. NETHERLANDS Fortis Bank (Nederland) N.V.
BRAZIL BankBoston, N.A. NEW ZEALAND National Australia Bank Ltd. (National
Nominees Ltd.)
BULGARIA ING Bank NIGER Societe Generale de Banques en Cote d'Ivoire
BURKINA FASO Societe Generale de Banques en Cote d'Ivoire NIGERIA Stanbic Merchant Bank Nigeria Limited
CANADA Royal Bank of Canada NORWAY Den norske Bank ASA
CHILE BankBoston, N.A. OMAN HSBC Bank Middle East
CHINA Standard Chartered Bank PAKISTAN Standard Chartered Bank
COLOMBIA Cititrust Colombia S.A. PALESTINIAN HSBC Bank Middle East
AUTONOMOUS AREA
COSTA RICA Banco BCT PANAMA BankBoston, N.A.
CROATIA Privredna Banka Zagreb d.d. PERU Citibank, N.A.
CYPRUS Bank of Cyprus PHILIPPINES HSBC
CZECH REPUBLIC Ceskoslovenska Obchodni Banka A.S. POLAND Bank Handlowy W Warszawie S.A.
DENMARK Den Danske Bank PORTUGAL Banco Comercial Portugues
EASDAQ Banque Bruxelles Xxxxxxx QATAR HSBC Bank Middle East
ECUADOR Citibank, N.A. ROMANIA ING Bank
EGYPT Citibank, N.A. RUSSIA Vneshtorgbank (Min Fin Bonds only)/
Credit Suisse First Boston AO
ESTONIA Hansabank Limited SENEGAL Societe Generale de Banques en Cote d'Ivoire
EUROMARKET Clearstream SINGAPORE United Overseas Bank Limited/
The Development Bank of Singapore Ltd.
EUROMARKET Euroclear SLOVAK REPUBLIC Ceskoslovenska Obchodni Banka, a.s.
FINLAND Xxxxxx Bank plc SLOVENIA Bank Austria Creditanstalt d.d. Ljubljana
FRANCE BNP Paribas / Credit Agricole Indosuez SOUTH AFRICA Societe Generale, Johannesburg /
The Standard Bank of South Africa Limited
GERMANY Dresdner Bank AG SOUTH KOREA Standard Chartered Bank
GHANA Barclays Bank of Ghana Ltd. SPAIN Banco Bilbao Vizcaya Argentaria
S.A. (BBVA) / Banco Santander Central
Hispano (BSCH)
GREECE BNP Paribas SRI LANKA Standard Chartered Bank
GUINEA BISSAU Societe Generale de Banques en Cote d'Ivoire SWAZILAND Standard Bank Swaziland Limited
HONG KONG HSBC SWEDEN Skandinaviska Enskilda Banken
HUNGARY Citibank Budapest Rt. SWITZERLAND Credit Suisse First Boston
ICELAND Landsbanki Islands TAIWAN HSBC
INDIA HSBC / Deutsche Bank AG THAILAND Standard Chartered Bank/
Bangkok Bank Public Company Limited
INDONESIA HSBC TOGO Societe Generale de Banques en Cote d'Ivoire
IRELAND Allied Irish Banks, plc TRINIDAD & TOBAGO Republic Bank Limited
ISRAEL Bank Leumi LE - Israel B.M. TUNISIA Banque Internationale Arabe de Tunisie
ITALY Banca Commerciale Italiana / BNP Paribas TURKEY Osmanli Bankasi A.S. (Ottoman Bank)
IVORY COAST Societe Generale - Abidjan UNITED ARAB HSBC Bank Middle East, Dubai
EMIRATES
JAMAICA CIBC Trust & Merchant Bank Jamaica Ltd. UKRAINE ING Bank
JAPAN The Bank of Tokyo-Mitsubishi Limited/ UNITED KINGDOM The Bank of New York /
The Fuji Bank, Limited The Depository & Clearing Centre (DCC)
JORDAN HSBC Bank Middle East UNITED STATES The Bank of New York
KAZAKHSTAN ABN/AMRO URUGUAY BankBoston, N.A.
KENYA Barclays Bank of Kenya Ltd. VENEZUELA Citibank, N.A.
LATVIA Hansabanka Limited ZAMBIA Barclays Bank of Zambia Ltd.
LEBANON HSBC Bank Middle East ZIMBABWE Barclays Bank of Zimbabwe Ltd.
EXHIBIT A
1. Active Assets California Tax-Free Trust
2. Active Asset Government Securities Trust
3. Active Assets Institutional Money Trust
4. Active Assets Money Trust
5. Active Assets Premier Money Trust
6. Active Assets Tax-Free Trust
7. Xxxxxx Xxxxxxx 21st Century Trend Fund
8. Xxxxxx Xxxxxxx Aggressive Equity Fund
9. Xxxxxx Xxxxxxx All Star Growth Fund
10. Xxxxxx Xxxxxxx American Opportunities Fund
11. Xxxxxx Xxxxxxx Balanced Growth Fund
12. Xxxxxx Xxxxxxx Balanced Income Fund
13. Xxxxxx Xxxxxxx Xxxx Xxxxxx California Insured Municipal Income Trust
14. Xxxxxx Xxxxxxx Xxxx Xxxxxx California Quality Municipal Securities
15. Xxxxxx Xxxxxxx California Tax-Free Daily Income Trust
16. Xxxxxx Xxxxxxx California Tax-Free Income Fund
17. Xxxxxx Xxxxxxx Capital Growth Securities
18. Xxxxxx Xxxxxxx Competitive Edge Fund
19. Xxxxxx Xxxxxxx Convertible Securities Trust
20. Xxxxxx Xxxxxxx Developing Growth Securities Trust
21. Xxxxxx Xxxxxxx Diversified Income Trust
22. Xxxxxx Xxxxxxx Dividend Growth Securities Inc.
23. Xxxxxx Xxxxxxx Equity Fund
24. Xxxxxx Xxxxxxx Federal Securities Trust
25. Xxxxxx Xxxxxxx Financial Services Trust
26. Xxxxxx Xxxxxxx Fund of Funds:
Domestic Portfolio
International Portfolio
27. Xxxxxx Xxxxxxx Global Utilities Fund
28. Xxxxxx Xxxxxxx Xxxx Xxxxxx Government Income Trust
29. Xxxxxx Xxxxxxx Growth Fund
30. Xxxxxx Xxxxxxx Hawaii Municipal Trust
31. Xxxxxx Xxxxxxx Health Sciences Trust
32. Xxxxxx Xxxxxxx Xxxx Xxxxxx High Income Advantage Trust
33. Xxxxxx Xxxxxxx Xxxx Xxxxxx High Income Advantage Trust II
34. Xxxxxx Xxxxxxx Xxxx Xxxxxx High Income Advantage Trust III
35. Xxxxxx Xxxxxxx High Yield Securities Inc.
36. Xxxxxx Xxxxxxx Income Builder Fund
37. Xxxxxx Xxxxxxx Income Securities Inc.
38. Xxxxxx Xxxxxxx Xxxx Xxxxxx Insured California Municipal Securities
39. Xxxxxx Xxxxxxx Xxxx Xxxxxx Insured Municipal Bond Trust
40. Xxxxxx Xxxxxxx Xxxx Xxxxxx Insured Municipal Income Trust
41. Xxxxxx Xxxxxxx Xxxx Xxxxxx Insured Municipal Securities
42. Xxxxxx Xxxxxxx Xxxx Xxxxxx Insured Municipal Trust
43. Xxxxxx Xxxxxxx Intermediate Income Securities Inc.
44. Xxxxxx Xxxxxxx KLD Social Index Fund
45. Xxxxxx Xxxxxxx Limited Term Municipal Trust
46. Xxxxxx Xxxxxxx Liquid Asset Fund Inc.
47. Xxxxxx Xxxxxxx Market Leader Trust
48. Xxxxxx Xxxxxxx Mid-Cap Equity Trust
49. Xxxxxx Xxxxxxx Mid-Cap Value Fund
50. Xxxxxx Xxxxxxx Multi-State Municipal Series Trust:
The Arizona Series
The Florida Series
The New Jersey Series
The Pennsylvania Series
51. Xxxxxx Xxxxxxx Xxxx Xxxxxx Municipal Income Opportunities Trust
52. Xxxxxx Xxxxxxx Xxxx Xxxxxx Municipal Income Opportunities Trust II
53. Xxxxxx Xxxxxxx Xxxx Xxxxxx Municipal Income Opportunities Trust III
54. Xxxxxx Xxxxxxx Xxxx Xxxxxx Municipal Premium Income Trust
55. Xxxxxx Xxxxxxx NASDAQ-100 Index Fund
56. Xxxxxx Xxxxxxx Natural Resource Development Securities Inc.
57. Xxxxxx Xxxxxxx New Discoveries Fund
58. Xxxxxx Xxxxxxx New York Municipal Money Market Trust
59. Xxxxxx Xxxxxxx Xxxx Xxxxxx New York Quality Municipal Securities
60. Xxxxxx Xxxxxxx New York Tax-Free Income Fund
61. Xxxxxx Xxxxxxx Next Generation Trust
62. Xxxxxx Xxxxxxx North American Government Income Trust
63. Xxxxxx Xxxxxxx Prime Income Trust
64. Xxxxxx Xxxxxxx Xxxx Xxxxxx Quality Municipal Income Trust
65. Xxxxxx Xxxxxxx Xxxx Xxxxxx Quality Municipal Investment Trust
66. Xxxxxx Xxxxxxx Xxxx Xxxxxx Quality Municipal Securities
67. Xxxxxx Xxxxxxx Real Estate Fund
68. Xxxxxx Xxxxxxx S&P 500 Index Fund
69. Xxxxxx Xxxxxxx S&P 500 Select Fund
70. Xxxxxx Xxxxxxx Select Dimensions Investment Series:
The American Opportunities Portfolio
The Balanced Growth Portfolio
The Developing Growth Portfolio
The Diversified Income Portfolio
The Dividend Growth Portfolio
The Global Equity Portfolio
The Growth Portfolio
The Mid-Cap Equity Portfolio
The Money Market Portfolio
The North American Government Portfolio
The Utilities Portfolio
The Value-Added Portfolio
71. Xxxxxx Xxxxxxx Select Municipal Reinvestment Fund
72. Xxxxxx Xxxxxxx Xxxxx-Term Bond Fund
73. Xxxxxx Xxxxxxx Xxxxx-Term U.S. Treasury Trust
74. Xxxxxx Xxxxxxx Small Cap Growth Fund
75. Xxxxxx Xxxxxxx Special Value Fund
76. Xxxxxx Xxxxxxx Strategist Fund
77. Xxxxxx Xxxxxxx Tax-Exempt Securities Trust
78. Xxxxxx Xxxxxxx Tax-Free Daily Income Trust
79. Xxxxxx Xxxxxxx Tax-Managed Growth Fund
80. Xxxxxx Xxxxxxx Technology Fund
81. Xxxxxx Xxxxxxx Total Market Index Fund
82. Xxxxxx Xxxxxxx Total Return Bond Fund
83. Xxxxxx Xxxxxxx Total Return Trust
84. Xxxxxx Xxxxxxx U.S. Government Money Market Trust
85. Xxxxxx Xxxxxxx U.S. Government Securities Trust
86. Xxxxxx Xxxxxxx Utilities Fund
87. Xxxxxx Xxxxxxx Value Fund
88. Xxxxxx Xxxxxxx Value-Added Market Series
89. Xxxxxx Xxxxxxx Variable Investment Series:
The Aggressive Equity Portfolio
The Capital Growth Portfolio
The Competitive Edge Portfolio
The Dividend Growth Portfolio
The Equity Portfolio
The High Yield Portfolio
The Income Builder Portfolio
The Money Market Portfolio
The Quality Income Plus Portfolio
The S&P 500 Index Portfolio
The Short-Term Bond Portfolio
The Strategist Portfolio
The Utilities Portfolio
90. TCW/DW Term Trust 2002
91. TCW/DW Term Trust 2003
