EXHIBIT (G)(4)
AMENDED AND RESTATED
FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of June 6, 2001 between National Investors Cash
ManagementFund, 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 February 26,
1998 (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:
2. Capitalized terms used in this Agreement and not otherwise defined in
this Agreement shall have the meanings given such terms in the Rule.
3. "BOARD" shall mean the board of directors or board of trustees, as
the case may be, of the Fund.
4. "ELIGIBLE FOREIGN CUSTODIAN" shall have the meaning provided in the
Rule.
5. "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.
6. "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.
7. "RULE" shall mean Rule 17f-5 under the Investment Company Act of
1940, as amended, as such Rule became effective on June 12, 2000.
8. "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
9. The Fund on behalf of its Board hereby delegates to BNY with respect to
each Specified Country the Responsibilities (the "Delegation").
10. 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.
11. 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
12. 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 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.
13. 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
14. 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.
15. 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
16. 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. 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.
17. 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.
18. 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
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.
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
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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: /S/ XXXXXX X. XXXXXX
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Title: Vice President
FOREIGN CUSTODY MANAGER AGREEMENT
SCHEDULE I
