Exhibit (g)(6)
FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of July 2, 2001 between Westcore Trust (the "Fund") and
The Bank of New York ("BNY").
WITNESSETH:
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:
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 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 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.
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,
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
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 (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 assets of the
Fund with any such Eligible Foreign Custodian.
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; (e) advise the Fund
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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 (f) determine that the Fund may, without penalty of any kind,
withdraw its assets from the Eligible Foreign Custodian and cease to place
its assets with such Eligible Foreign Custodian as soon as reasonably
practicable following a determination by the Fund that the arrangement with
such Eligible Foreign Custodian no longer meets the requirements of the
Rule.
2. For purposes 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.
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; (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 any other 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; (c) BNY has
established the Monitoring System; and (d) BNY is a U.S. Bank as defined in
the Rule.
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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 arise 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.
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 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.
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 0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, 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
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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.
9. The names "Westcore Trust" and "Trustees of Westcore Trust" refer
respectively to the trust created and the Trustees, as trustees but not
individually or personally, acting from time to time under an Amended and
Restated Declaration of Trust dated November 19, 1987 which is hereby
referred to and a copy of which is on file at the office of State Secretary
of the Commonwealth of Massachusetts and the principal office of the
Company. The obligations of "Westcore Trust" entered into in the name or on
behalf thereof by any of the Trustees, shareholders, or representatives of
the Fund are not made personally, but in such capacities, and bind only the
Fund's property, and all persons dealing with any class of shares of the
Fund must look solely to the Fund's property belonging to such class for
the enforcement of any claims against the Fund.
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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.
WESTCORE TRUST
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Tax Identification No.:
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. XxXxxx
Name: Xxxxxx X. XxXxxx
Title: Vice President
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SCHEDULE I
SPECIFIED COUNTRIES
COUNTRY/
MARKET SUBCUSTODIAN(S)
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ARGENTINA Banco Rio de la Plata
AUSTRALIA National Australia Bank Ltd.
AUSTRIA Bank Austria AG
BAHRAIN HSBC Bank Middle East
BANGLADESH Standard Chartered Bank
BELGIUM Banque Bruxelles Xxxxxxx
BENIN Societe Generale de Banques en Cote d'Ivoire
BERMUDA Bank of Bermuda Limited
BOLIVIA Citibank, N.A.
BOTSWANA Barclays Bank of Botswana Ltd.
BRAZIL BankBoston, N.A.
BULGARIA ING Bank
BURKINA FASO Societe Generale de Banques en Cote d'Ivoire
CANADA Royal Bank of Canada
CHILE BankBoston, N.A.
CHINA Standard Chartered Bank
COLOMBIA Cititrust Colombia X.X.
XXXXX RICA Banco BCT
CROATIA Privredna Banka Zagreb d.d.
CYPRUS Bank of Cyprus
CZECH REPUBLIC Ceskoslovenska Obchodni Banka A.S.
DENMARK Den Danske Bank
ECUADOR Citibank, N.A.
EGYPT Citibank, N.A.
ESTONIA Hansabank Limited
EUROMARKET Clearstream
EUROMARKET Euroclear
FINLAND Xxxxxx Bank plc
FRANCE BNP Paribas / Credit Agricole Indosuez
GERMANY Dresdner Bank AG
GHANA Barclays Bank of Ghana Ltd.
GREECE BNP Paribas Securities Services
GUINEA BISSAU Societe Generale de Banques en Cote d'Ivoire
HONG KONG HSBC
HUNGARY Citibank Budapest Rt.
ICELAND Landsbanki Islands
INDIA HSBC / Deutsche Bank AG
INDONESIA HSBC
IRELAND Allied Irish Banks, plc
ISRAEL Bank Leumi LE - Israel B.M.
ITALY IntesaBCI S.p.A./ BNP Paribas Securities Services
IVORY COAST Societe Generale - Abidjan
JAMAICA CIBC Trust & Merchant Bank Jamaica Ltd.
JAPAN The Bank of Tokyo-Mitsubishi Limited/
The Fuji Bank, Limited
HSBC Bank Middle East
KAZAKHSTAN ABN/AMRO
KENYA Barclays Bank of Kenya Ltd.
LATVIA Hansabanka Limited
LEBANON HSBC Bank Middle East
LITHUANIA Vilniaus Bankas
LUXEMBOURG Banque et Caisse d'Epargne de l'Etat
MALAYSIA HongKong Bank Malaysia Berhad
MALI Societe Generale de Banques en Cote d'Ivoire
MALTA HSBC Bank Malta p.l.c.
MAURITIUS HSBC
MEXICO Banco Nacional de Mexico
MOROCCO Banque Commerciale du Maroc
NAMIBIA Stanbic Bank Namibia Limited
NASDAQ EUROPE Banque Bruxelles Xxxxxxx
NETHERLANDS Fortis Bank (Nederland) N.V.
NEW ZEALAND National Australia Bank Ltd. (National Nominees Ltd.)
NIGER Societe Generale de Banques en Cote d'Ivoire
NIGERIA Stanbic Merchant Bank Nigeria Limited
NORWAY Den norske Bank ASA
OMAN HSBC Bank Middle East
PAKISTAN Standard Chartered Bank
PALESTINIAN
AUTONOMOUS AREA HSBC Bank Middle East
PANAMA BankBoston, N.A.
PERU Citibank, N.A.
PHILIPPINES HSBC
POLAND Bank Handlowy W Warszawie S.A.
PORTUGAL Banco Comercial Portugues
QATAR HSBC Bank Middle East
ROMANIA ING Bank
Vneshtorgbank (Min Fin Bonds only)/
Credit Suisse First Boston AO
SENEGAL Societe Generale de Banques en Cote d'Ivoire
SINGAPORE United Overseas Bank Limited/
The Development Bank of Singapore Ltd.
SLOVAK REPUBLIC Ceskoslovenska Obchodni Banka, a.s.
SLOVENIA Bank Austria Creditanstalt d.d. Ljubljana
SOUTH AFRICA Societe Generale, Johannesburg/
The Standard Bank of South Africa Limited
SOUTH KOREA Standard Chartered Bank
SPAIN Banco Bilbao Vizcaya Argentaria S.A. (BBVA) /
Banco Santander Central Hispano (BSCH)
SRI LANKA Standard Chartered Bank
SWAZILAND Standard Bank Swaziland Ltd.
SWEDEN Skandinaviska Enskilda Banken
SWITZERLAND Credit Suisse First Boston
TAIWAN HSBC
THAILAND Standard Chartered Bank/
Bangkok Bank Public Company Limited
TOGO Societe Generale de Banques en Cote d'Ivoire
TRINIDAD & TOBAGO Republic Bank Limited
TUNISIA Banque Internationale Arabe de Tunisie
TURKEY Osmanli Bankasi A.S. (Ottoman Bank)
UNITED ARAB EMIRATES HSBC Bank Middle fEast, Dubai
UKRAINE ING Bank
The Bank of New York /
UNITED KINGDOM The Depository & Clearing Centre (DCC)
UNITED STATES The Bank of New York
URUGUAY BankBoston, N.A.
VENEZUELA Citibank, N.A.
VIETNAM HSBC
ZAMBIA Barclays Bank of Zambia Ltd.
ZIMBABWE Barclays Bank of Zimbabwe Ltd.
