AMENDED AND RESTATED
FOREIGN CUSTODY MANAGER AGREEMENT
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
NATIONS SEPARATE ACCOUNT
TRUST
By: /s/ A. Xxx Xxxxxx
------------------------
A. Xxx Xxxxxx
President and Chairman of the Board of
Trustees
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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 FUND TRUST:
1. Nations Government Money Market Fund
2. Nations Tax Exempt Fund
3. Nations Value Fund
4. Nations Strategic Growth Fund
5. Nations Capital Growth Fund
6. Nations MidCap Growth Fund
7. Nations LargeCap Index Fund
8. Nations Managed Index Fund
9. Nations SmallCap Index Fund
10. Nations Aggressive Growth Fund
11. Nations Short-Intermediate Government Fund
12. Nations Short-Term Income Fund
13. Nations Strategic Income Fund
14. Nations Bond Fund
15. Nations Municipal Income Fund
16. Nations Short-Term Municipal Income Fund
17. Nations Intermediate Municipal Bond Fund
18. Nations Florida Intermediate Municipal Bond Fund
19. Nations Florida Municipal Bond Fund
20. Nations Georgia Intermediate Municipal Bond Fund
21. Nations Georgia Municipal Bond Fund
22. Nations Maryland Intermediate Municipal Bond Fund
23. Nations Maryland Municipal Bond Fund
24. Nations North Carolina Intermediate Municipal Bond Fund
25. Nations North Carolina Municipal Bond Fund
26. Nations South Carolina Intermediate Municipal Bond Fund
27. Nations South Carolina Municipal Bond Fund
28. Nations Tennessee Intermediate Municipal Bond Fund
29. Nations Tennessee Municipal Bond Fund
30. Nations Texas Intermediate Municipal Bond Fund
31. Nations Texas Municipal Bond Fund
32. Nations Virginia Intermediate Municipal Bond Fund
33. Nations Virginia Municipal Bond Fund
NATIONS FUND, INC.
1. Nations Prime Fund
2. Nations Treasury Fund
3. Nations Equity Income Fund
4. Nations Small Company Fund
NATIONS RESERVES:
1. Nations Government Reserves
2. Nations Municipal Reserves
3. Nations Cash Reserves
4. Nations Treasury Reserves
5. Nations Money Market Reserves
6. Nations California Tax-Exempt Reserves
7. Nations International Equity Fund
8. Nations International Value Fund
9. Nations Emerging Markets Fund
10. Nations Convertible Securities Fund
11. Nations California Municipal Bond Fund
12. Nations Intermediate Bond Fund
13. Nations Blue Chip Fund
NATIONS SEPARATE ACCOUNT TRUST (FORMERLY NATIONS ANNUITY TRUST):
1. Nations Value Portfolio
2. Nations Xxxxxxx International Opportunities Portfolio
3. Nations Marisco 21st Century Portfolio
4. Nations Xxxxxxx Focused Equities Portfolio
5. Nations Xxxxxxx Growth & Income 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 Blue Chip Master Portfolio
3. Nations International Equity Master Portfolio
4. Nations Xxxxxxx Focused Equities Master Portfolio
5. Nations Xxxxxxx Growth & Income Master Portfolio
6. Nations International Value Master Portfolio
7. Nations High Yield Bond Master Portfolio
8. Nations Xxxxxxx 21st Century Master Portfolio
9. Nations Xxxxxxx International Opportunities Master Portfolio
10. High Yield Portfolio
11. International Bond Portfolio
NATIONS FUNDS TRUST:
1. Nations High Yield Bond Fund
2. Nations MidCap Index Fund
3. Nations Kansas Municipal Income Fund
4. Nations Xxxxxxx 21st Century Fund
5. Nations Xxxxxxx International Opportunities Fund
6. Nations Financial Services Fund
7. Nations Classic Value Fund
8. Nations Global Value Fund
9. Nations Asset Allocation Fund
10. Nations Government Securities Fund
11. Nations Xxxxxxx Focused Equities Fund
12. Nations Xxxxxxx Growth & Income Fund
