Exhibit (g)(5)
AMENDED AND RESTATED
FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of June 6, 2001 between TD Waterhouse Family of
Funds, Inc. (the "Fund") and The Bank of New York ("BNY").
W I T N E S S E T H:
WHEREAS, the Fund has previously appointed BNY as a foreign custody
manager under a certain Foreign Custody Manager Agreement dated December 10,
1997 (the "Prior Agreement");
WHEREAS, the Fund and BNY desire to re-affirm such appointment and 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, the Fund and BNY hereby agrees as follows:
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
Capitalized terms used in this Agreement and not otherwise defined in this
Agreement shall have the meanings given such terms in the Rule.
"BOARD" shall mean the board of directors or board of trustees, as the case may
be, of the Fund.
"ELIGIBLE FOREIGN CUSTODIAN" shall have the meaning provided in the Rule.
"MONITORING SYSTEM" shall mean a system established by BNY to fulfill the
Responsibilities specified in (d) and (e) of Section 1 of Article III of this
Agreement.
"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.
"RULE" shall mean Rule 17f-5 under the Investment Company Act of 1940, as
amended, as such Rule became effective on June 12, 2000.
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"SPECIFIED COUNTRY" shall mean each country listed on Schedule I attached hereto
(as such Schedule may be amended by BNY from time to time) 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.
BNY AS A FOREIGN CUSTODY MANAGER
The Fund on behalf of its Board hereby delegates to BNY with respect to each
Specified Country the Responsibilities (the "Delegation").
BNY accepts the Delegation 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 (as such term is defined by the Rule) would exercise.
BNY shall provide to the Board and the Fund's investment adviser notice promptly
after the placement of Foreign Assets of the Fund with a particular Eligible
Foreign Custodian selected by BNY within a Specified Country, and 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 any material change in the arrangements (including
any material change in any contract governing such arrangements) with respect to
Foreign Assets of the Fund with any such Eligible Foreign Custodian.
RESPONSIBILITIES
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 Section (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 the assets of the Fund as such specified provisions in their
entirety; (d) monitor pursuant to the Monitoring System the appropriateness of
maintaining the Foreign Assets of the Fund
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with a particular Eligible Foreign Custodian pursuant to paragraph (c)(1) of the
Rule including the performance of the contract governing such arrangement; and
(e) promptly 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, and withdraw the Fund's Foreign
Assets from such Eligible Foreign Custodian as promptly as is reasonably
practicable.
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 transnational system for the central handling of securities or
equivalent book-entries; (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.
REPRESENTATIONS
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.
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) 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, regulation, rule, order, judgment or
contract binding on BNY prohibits BNY's execution or performance of this
Agreement; (c) BNY is a "U.S. bank" as defined in paragraph (a)(7) of the Rule;
and (d) BNY has established and will maintain the Monitoring System.
CONCERNING BNY
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,
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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. Anything contained herein to the
contrary notwithstanding, nothing contained herein shall affect or alter the
duties and responsibilities of BNY or the Fund under any other agreement between
BNY and the Fund, including without limitation, the Custody Agreement or any
Securities Lending Agreement.
The Fund agrees to 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.
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.
MISCELLANEOUS
This Agreement constitutes the entire agreement between the Fund and BNY with
respect to the subject matter. In the event of a conflict between the provisions
in the Custody Agreement between the Fund and the Custodian and the terms of
this Agreement, the terms of this Agreement shall govern.
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.
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 its offices at c/o TD Waterhouse Asset Management, 000 Xxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, ATTENTION: Xxxxxxx X. Xxxxxxxx, Senior Vice
President, or at such other place as the Fund may from time to time designate in
writing.
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.
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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.
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.
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.
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 sixty (60)
days after the date of such notice.
In consideration of the services provided by BNY hereunder, the Fund shall pay
to BNY such compensation and out-of-pocket expenses as may be agreed upon from
time to time.
For each Fund organized as a Massachusetts business trust, a copy of its
Declaration of Trust is on file with the Secretary of the Commonwealth of
Massachusetts. Notice is hereby given that each such instrument is executed on
behalf of the trustees of each such Fund and not individually, and that the
obligations of this Agreement are not binding upon any of the trustees or
shareholders individually but are binding only upon the respective Fund. The
parties expressly agree that BNY and its assignees and affiliates shall look
solely to the respective Fund's assets and property with respect to enforcement
of any claim.
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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.
/s/ Xxxxxxxxxxx X. Xxxxxx, Secretary
on behalf of each Fund identified on
Schedule I attached hereto individually and
severally, and not jointly and severally
THE BANK OF NEW YORK
By: Xxxxxx X. XxXxxx
Title: Vice President
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FOREIGN CUSTODY MANAGER AGREEMENT
SCHEDULE I
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