AMENDED AND RESTATED FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of May 16, 2001 between Each Investment Company Listed
on Schedule 1 attached hereto (each a "Fund") and The Bank of New York ("BNY").
W I T N E S S E T H:
WHEREAS, each Fund appointed BNY as a Foreign Custody Manager on the terms
and conditions contained in a certain Foreign Custody Agreement made as of July
30, 1998 or May 7, 1998, and effective as of February 27, 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 conditions contained
herein;
NOW THEREFORE, in consideration of the mutual promises hereinafter
contained in this Agreement, each 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. "MONITORING SYSTEM" shall mean a system established by BNY to fulfill the
Responsibilities (as herein defined) specified in clauses (d) and (e) of Section
1 of Article III of this Agreement.
4. "RESPONSIBILITIES" shall mean the responsibilities delegated to BNY under the
Rule (as herein defined) as a Foreign Custody Manager with respect to each
Specified Country (as herein defined) 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 2 attached
hereto 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 BNY as custodian (the "Custodian") under its Custody Agreement
with the Fund.
ARTICLE II.
BNY AS A FOREIGN CUSTODY MANAGER
1. Each 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
(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 the contract governing
such arrangements) with respect to Foreign Assets (as defined in the Rule) 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 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 the assets of the Fund as such specified provisions; (d)
monitor pursuant to the Monitoring System the appropriateness of maintaining the
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 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.
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 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 the Fund's
investment advisor 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 such
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) 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; and (c) 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 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.
LIMITED LIABILITY OF EACH FUND
BNY acknowledges that is has received notice of and accepts the
limitations of liability as set forth in each Fund's Agreement and Declaration
of Trust, Articles of Incorporation, or Agreement of Limited Partnership. BNY
agrees that each Fund's obligation hereunder shall be limited to the assets of
the Fund, and that BNY shall not seek satisfaction of any such obligation from
the shareholders of the Fund nor from any Board Member, officer, employee, or
agent of the Fund.
ARTICLE VII.
MISCELLANEOUS
1. This Agreement shall be deemed a separate agreement between each Fund
and BNY and constitutes the entire agreement between each Fund and BNY as a
foreign
custody manager, and no provision in the Custody Agreement between a 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 with a Fund.
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 its offices at 000 Xxxxxxxx' Xxxxxx Xxxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000,
Attention: Secretary, 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 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.
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 thirty (30) 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 INVESTMENT COMPANY LISTED ON SCHEDULE 1
HERETO
By: /S/ XXXXXX X. XXXXXXX
Title: Vice President
THE BANK OF NEW YORK
By: /S/ XXX X. XXXXXX
Title: Vice President
