AMENDED AND RESTATED FOREIGN CUSTODY MANAGER AGREEMENT
AMENDED AND RESTATED
AGREEMENT made as
of July 2, 2001 among Nations Fund Trust, Nations Fund, Inc., Nations Reserves, Nations Separate Account Trust, Nations Master Investment Trust and Nations Funds Trust on behalf of their respective mutual funds identified on the Appendix hereto
(each, a “Fund”; collectively, the “Funds”) and The Bank of New York (“BNY”).
W I T N E
S S E T H:
WHEREAS, each Fund has appointed BNY as a Foreign Custody Manager under a Foreign Custody
Manager Agreement dated December 1, 1997 as amended as of August 6, 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 condition contained herein;
NOW THEREFORE, in consideration of the mutual promises hereinafter contained in this Agreement, each Fund and BNY hereby agrees 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 relevant Fund.
2. “Eligible Foreign
Custodian” shall have the meaning provided in the Rule (as defined below).
3. “
Monitoring System” shall mean a system established by BNY to fulfill the Responsibilities (as defined below) specified in clause (b) of Section 1 of Article III of this Agreement.
4. “Responsibilities” shall mean the responsibilities delegated to BNY as a Foreign Custody Manager with respect to each Specified Country
(as defined below) 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, with respect to which an Authorized Person (as defined in one or more Custody Agreement(s) between the relevant Fund and BNY as custodian (each, a “Custody
Agreement”)) has given settlement instructions to BNY as custodian (the “Custodian”) under the Custody Agreement.
ARTICLE II.
BNY AS A FOREIGN CUSTODY MANAGER
1. Each Fund, by authority 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 Funds’ 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,
but not limited to, the contract governing such arrangements) with respect to assets of the Fund with any such Eligible Foreign Custodian and such additional information regarding such matters as and when the Board may reasonably request and
containing such detail as the parties shall agree.
ARTICLE III.
RESPONSIBILITIES
1. (a) 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: (i) determine that Foreign Assets of each 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 Foreign Assets, including, without
limitation, those contained in Section (c)(1) of the Rule; (ii) determine that each 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 Foreign Assets based on the standards specified in paragraph (c)(1) of the Rule; and (iii) 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
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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
Foreign Assets of each Fund as such specified provisions in their entirety.
(b) In addition, subject to the
provisions of this Agreement, BNY shall with respect to each Eligible Foreign Custodian (i) monitor pursuant to the Monitoring System (x) the appropriateness of maintaining the Foreign Assets of the Funds with a particular Eligible Foreign Custodian
pursuant to paragraph (c)(1) of the Rule and (y) performance of the contract governing such arrangement under paragraph (c)(2) of the Rule; and (ii) advise the appropriate Fund(s) whenever an arrangement (including any material change in the
contract governing such arrangement) described in preceding clause (b)(i) no longer meets the requirements of the Rule.
2. For purposes of clause (b)(i) 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 for the central handling of securities or equivalent book-entries, or a transnational system for the central handling of securities or any equivalent book-entries in their respective countries of incorporation; (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 its investment adviser or investment sub-adviser pursuant to delegated authority 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 Specified 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) BNY is a U.S. Bank, as defined in Section (a)(7) of the Rule; (c) this Agreement has been
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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 (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, any Fund, except that BNY shall be liable for all such amounts 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 any Fund, such Fund’s 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. Each 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, each Fund agrees to pay to BNY such compensation and out-of-pocket expenses as shall be mutually agreed in
writing, it being understood that the parties have no present intention that BNY receive any compensation or out-of-pocket expenses under this Agreement.
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 each Fund and BNY with respect to the matters covered hereby, 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.
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3. Any notice or other instrument in writing, authorized or required by this
Agreement to be given to a Fund shall be sufficiently given if received by it at its offices at Xxxxxxx X. Xxxxx, Xx., Corporate Secretary, The Nations Funds, 000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxx 00000, with a copy to Xxxxxx X.
Xxxxxx, Bank of America Advisors, LLC, One Bank of America Plaza, 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx 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 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. Each 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. Each 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.
Each 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 Funds and no contractual or service relationship shall be deemed to be established hereby between BNY and
any other person.
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. As to any Fund this
Agreement shall terminate simultaneously with the termination of the Custody Agreement between such 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.
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IN WITNESS WHEREOF, each Fund on behalf of its mutual funds identified on
the Appendix hereto and BNY have caused this Agreement to be executed by their respective officers, thereunto duly authorized, as of the date first above written.
| NATIONS FUND TRUST | ||
| By: |
/s/ A. XXX XXXXXX
| |
| A. Xxx Xxxxxx President and
Chairman of the Board of Trustees | ||
| NATIONS FUND, INC. | ||
| By: |
/s/ A. XXX XXXXXX
| |
| A. Xxx Xxxxxx President and
Chairman of the Board of Directors | ||
| NATIONS RESERVES | ||
| By: |
/s/ A. XXX XXXXXX
| |
| A. Xxx Xxxxxx President and
Chairman of the Board of Trustees | ||
| By: |
/s/ A. XXX XXXXXX
| |
| A. Xxx Xxxxxx President and
Chairman of the Board of Trustees | ||
6
| NATIONS MASTER INVESTMENT TRUST | ||
| By: |
/s/ A. XXX XXXXXX
| |
| A. Xxx Xxxxxx President and
Chairman of the Board of Trustees | ||
| NATIONS FUNDS TRUST | ||
| By: |
/s/ A. XXX XXXXXX
| |
| A. Xxx Xxxxxx President and
Chairman of the Board of Trustees | ||
| THE BANK OF NEW YORK | ||
| By: |
/s/ XXX XXXXXX
| |
| Xxx Xxxxxx Vice
President | ||
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APPENDIX
| NATIONS FUNDS TRUST | ||
| 1. |
Nations Tax-Exempt Reserves | |
| 2. |
Nations Value Fund | |
| 3. |
Nations Strategic Growth Fund | |
| 4. |
Nations Capital Growth Fund | |
| 5. |
Nations MidCap Growth Fund | |
| 6. |
Nations LargeCap Index Fund | |
| 7. |
Nations Managed Index Fund | |
| 8. |
Nations SmallCap Index Fund | |
| 9. |
Nations Short-Intermediate Government Fund | |
| 10. |
Nations Short-Term Income Fund | |
| 11. |
Nations Strategic Income Fund | |
| 12. |
Nations Bond Fund | |
| 13. |
Nations Municipal Income Fund | |
| 14. |
Nations Short-Term Municipal Income Fund | |
| 15. |
Nations Intermediate Municipal Bond Fund | |
| 16. |
Nations Florida Intermediate Municipal Bond Fund | |
| 17. |
Nations Florida Municipal Bond Fund | |
| 18. |
Nations Georgia Intermediate Municipal Bond Fund | |
| 19. |
Nations Maryland Intermediate Municipal Bond Fund | |
| 20. |
Nations North Carolina Intermediate Municipal Bond Fund | |
| 21. |
Nations South Carolina Intermediate Municipal Bond Fund | |
| 22. |
Nations Tennessee Intermediate Municipal Bond Fund | |
| 23. |
Nations Texas Intermediate Municipal Bond Fund | |
| 24. |
Nations Virginia Intermediate Municipal Bond Fund | |
| 25. |
Nations Small Company Fund | |
| 26. |
Nations Government Reserves | |
| 27. |
Nations Municipal Reserves | |
| 28. |
Nations Cash Reserves | |
| 29. |
Nations Treasury Reserves | |
| 30. |
Nations Money Market Reserves | |
| 31. |
Nations California Tax-Exempt Reserves | |
| 32. |
Nations International Equity Fund | |
| 33. |
Nations International Value Fund | |
| 34. |
Nations Emerging Markets Fund | |
| 35. |
Nations Convertible Securities Fund | |
| 36. |
Nations California Municipal Bond Fund | |
| 37. |
Nations Intermediate Bond Fund | |
| 38. |
Nations High Yield Bond Fund | |
| 39. |
Nations MidCap Index Fund | |
| 40. |
Nations Kansas Municipal Income Fund | |
| 41. |
Nations Xxxxxxx 21st Century Fund | |
| 42. |
Nations Xxxxxxx International Opportunities Fund | |
| 43. |
Nations Financial Services Fund | |
| 44. |
Nations Classic Value Fund | |
| 45. |
Nations Global Value Fund | |
| 46. |
Nations Asset Allocation Fund | |
| 47. |
Nations Government Securities Fund | |
| 48. |
Nations Xxxxxxx Focused Equities Fund | |
| 49. |
Nations Xxxxxxx Growth Fund | |
| 50. |
Nations MidCap Value Fund | |
| 51. |
Nations LargeCap Value Fund | |
| 52. |
Nations New York Tax-Exempt Reserves | |
| 53. |
Nations Research Fund | |
| 54. |
Nations SmallCap Value Fund | |
| 55. |
Nations California Intermediate Municipal Bond Fund | |
| 56. |
Corporate Bond Portfolio | |
| 57. |
Mortgage- and Asset-Backed Portfolio | |
| 58. |
High Income Portfolio | |
| NATIONS SEPARATE ACCOUNT TRUST
(FORMERLY NATIONS ANNUITY TRUST) | ||
| 1. |
Nations Value Portfolio | |
| 2. |
Nations Xxxxxxx International Opportunities Portfolio | |
| 3. |
Nations Xxxxxxx 21st Century Portfolio | |
| 4. |
Nations Xxxxxxx Focused Equities Portfolio | |
| 5. |
Nations Xxxxxxx Growth Portfolio | |
| 6. |
Nations Capital Growth Portfolio | |
| 7. |
Nations Small Company Portfolio | |
| 8. |
Nations Asset Allocation Portfolio | |
| 9. |
Nations High Yield Bond Portfolio | |
| 10. |
Nations International Value Portfolio | |
| 11. |
Nations MidCap Growth Portfolio | |
| NATIONS MASTER INVESTMENT
TRUST | ||
| 1. |
Nations Intermediate Bond Master Portfolio | |
| 2. |
Nations International Equity Master Portfolio | |
| 3. |
Nations Xxxxxxx Focused Equities Master Portfolio | |
| 4. |
Nations Xxxxxxx Growth Master Portfolio | |
| 5. |
Nations International Value Master Portfolio | |
| 6. |
Nations High Yield Bond Master Portfolio | |
| 7. |
Nations Xxxxxxx 21st Century Master Portfolio | |
| 8. |
Nations Xxxxxxx International Opportunities Master Portfolio | |
| 9. |
High Yield Portfolio | |
| 10. |
International Bond Portfolio | |
| 11. |
Nations SmallCap Value Master Portfolio | |
| 12. |
Nations Strategic Growth Master Portfolio | |
Last amended: August 28, 2002
IN WITNESS WHEREOF, the parties hereto have caused the amended Appendix to
be executed by their officers designated below as of the 28th day of August, 2002.
| By: |
/s/ XXXXXXX X. XXXXX, XX. | |
| Xxxxxxx X. Xxxxx, Xx. | ||
| Secretary | ||
| NATIONS MASTER INVESTMENT TRUST | ||
| By: |
/s/ XXXXXXX X. XXXXX, XX. | |
| Xxxxxxx X. Xxxxx, Xx. | ||
| Secretary | ||
| NATIONS FUNDS TRUST | ||
| By: |
/s/ XXXXXXX X. XXXXX, XX. | |
| Xxxxxxx X. Xxxxx, Xx. | ||
| Secretary | ||
| THE BANK OF NEW YORK | ||
| By: |
/s/ XXX XXXXXX | |
| Xxx Xxxxxx | ||
| Vice President | ||
