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EXHIBIT (g)(6)
FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of December 15, 1999, 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, intending to be legally bound,
hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases 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 the system established by BNY to
fulfill the Responsibilities specified in clauses 1(d) and 1(e) of Article III
of this Agreement.
4. "QUALIFIED FOREIGN BANK" shall have the meaning provided in the
Rule.
5. "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.
6. "RULE" shall mean Rule 17f-5 under the Investment Company Act of
1940, as the Rule became effective on June 16, 1997.
7. "SECURITIES DEPOSITORY" shall mean any securities depository or
clearing agency within the meaning of Section (a)(1)(ii) or (a)(1)(iii) of the
Rule.
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8. "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.
ARTICLE II
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 assets would
exercise.
3. BNY shall provide to the Board at least quarterly 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, in the case of Qualified Foreign Banks, any
material change in any contract governing such arrangements and in the case of
Securities Depositories, any material change in the established practices or
procedures of such Securities Depositories) with respect to assets 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 Qualified Foreign Bank are governed by a written contract
with the Custodian (or, in the case of a Securities Depository, by such a
contract, by the rules or established practices or procedures of the Securities
Depository, or by any combination of the foregoing) 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 a Qualified
Foreign Bank 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 in the case of a Qualified Foreign Bank, any material
change in the contract governing such
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arrangement and in the case of a Securities Depository, any material change in
the established practices or procedures of such Securities Depository; and (e)
advise the Fund whenever an arrangement (including, in the case of a Qualified
Foreign Bank, any material change in the contract governing such arrangement and
in the case of a Securities Depository, any material change in the established
practices or procedures of such Securities Depository) described in preceding
clause (d) no longer meets the requirements of the Rule. Anything in this
Agreement to the contrary notwithstanding, BNY shall in no event be deemed to
have selected any Securities Depository the use of which is mandatory by law or
regulation or because securities cannot be withdrawn from such Securities
Depository, or because maintaining securities outside the Securities Depository
is not consistent with prevailing custodial practices in the relevant market
(each, a "Compulsory Depository"); it being understood however, that for each
Compulsory Depository utilized or intended to be utilized by the Fund, BNY may
provide the Fund from time to time with information addressing the factors set
forth in Section (c)(1) of the Rule and BNY's opinions with respect thereto in
order to assist the Fund in determining the appropriateness of placing Fund
assets therein.
2. (a) For purposes of Clauses (a) and (b) of preceding Section 1 of
this Article, with respect to Securities Depositories, it is understood that
such determination shall be made on the basis of, and limited by, information
gathered through BNY's subcustodian network, or through publicly available
information otherwise obtained with respect to each such Securities Depository.
(b) 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) the use of Compulsory Depositories, (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. 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 its
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
Specified Country.
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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 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.
ARTICLE VI
MISCELLANEOUS
1. This Agreement constitutes the entire agreement between the Fund and
BNY, 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 00 Xxxxxxxxxx Xxxxxx, 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 the Fund shall be sufficiently given if received
by it at its offices at 000 00xx 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 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.
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. BNY warrants that it will use commercially reasonable efforts to
ensure that the computer software and hardware systems ("Systems") that are
owned by BNY and used to provide the Services under this Agreement are Year 2000
Compliant or will be made Year 2000 Compliant before December 31, 1999. With
respect to software that BNY licenses from third parties and uses in providing
the Services ("Third Party Software"), BNY warrants that it has used
commercially reasonable efforts to test the same by September 30, 1999 to
certify, in accordance with BNY's standard practices, that the Third Party
Software is Year 2000 Compliant. If BNY cannot certify any Third Party Software
as Year 2000 compliant, BNY will use commercially reasonable efforts to replace
such Third Party Software with software that is
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warranted or certified by its vendor as Year 2000 Compliant, if such replacement
is available, compatible with BNY's Systems and deemed by BNY as appropriate
under the circumstances. In the event that BNY uses third party service
providers to provide the Services or any portion thereof ("Third Party
Services"), BNY warrants that it has in place a program under which it will use
commercially reasonable efforts to contact such service providers and obtain
from them assurances that the Systems that they use in providing Services are
Year 2000 Compliant. As used herein, the term "Year 2000 Compliant" means that
the Systems will function without material error caused by the introduction of
dates falling on or after January 1, Year 2000. Notwithstanding the foregoing,
Customer acknowledges and agrees that BNY cannot and does not warrant that the
Systems, Third Party Software or Third Party Services will continue to interface
with the hardware, firmware, software (including operating systems), records or
data used by Customer or third parties, nor does BNY make any warranties
hereunder with respect to any public utility, communications service provider,
correspondent bank, securities depository, securities or commodities exchange,
or funds transfer network.
10. 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 as amended July 16, 1990
and as may be further amended from time to time which is hereby referred to and
a copy of which is on file at the office of the State Secretary of the
Commonwealth of Massachusetts and the principal office of the Trust. The
obligations of "Westcore Trust" entered into in the name or on behalf thereof by
any of the Trustees, representatives or agents are made not individually, but in
such capacities, and are not binding upon any of the Trustees, shareholders, or
representatives of the Trust personally, but bind only the Trust Property, and
all persons dealing with any class of shares of the Trust must look solely to
the Trust Property belonging to such class for the enforcement of any claims
against the Trust.
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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. Xxxxx
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Xxxxxx X. Xxxxx
Title: Treasurer
Tax Identification No.:
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Grunston
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Xxxxxxx X. Grunston
Title: Vice President
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SCHEDULE I
Specified Countries
COUNTRY/ COUNTRY/
MARKET SUBCUSTODIAN(S) MARKET SUBCUSTODIAN(S)
-------- --------------- -------- ---------------
Argentina BankBoston, N.A. Iceland Landsbanki Islands
Australia Commonwealth Bank of Australia/National India HSBC/Deutsche Bank AG
Australia Bank Limited
Austria Bank Austria AG Indonesia HSBC
Bahrain HSBC Bank Middle East Ireland Allied Irish Banks, plc
Bangladesh Standard Chartered Bank Israel Bank Leumi LE - Israel B.M.
Belgium Banque Bruxelles Xxxxxxx Italy Banca Commerciale Italiana/Paribas
Bermuda Bank of Bermuda Limited Ivory Coast Societe Generale de Banques en Cote d'Ivoire
Bolivia Citibank, N.A. Jamaica CIBC Trust & Merchant Bank Jamaica Ltd.
Botswana Stanbic Bank Botswana Limited Japan The Bank of Tokyo-Mitsubishi Limited/The Fuji
Bank, Limited
Brazil BankBoston, X.X. Xxxxxx HSBC Bank Middle East
Bulgaria ING Bank Kazakhstan ABN/AMRO
Canada Royal Bank of Canada Kenya Stanbic Bank Kenya Limited
Chile BankBoston, N.A. Latvia Hansabanka Limited
China Standard Chartered Bank Lebanon HSBC Bank Middle East
Colombia Cititrust Colombia S.A. Lithuania Vilniaus Bankas
Costa Rica Banco BCT Luxembourg Banque et Caisse d'Epargne de I'Etat
Croatia Privredna Banka Zagreb d.d. Malaysia HongKong Bank Malaysia Berhad
Cyprus Bank of Cyprus Malta HSBC Bank Malta p.l.c.
Czech Republic Ceskoslovenska Obchodni Banka A.S. Mauritius HSBC
Denmark Den Danske Xxxx Xxxxxx Banco Nacional de Mexico
EASDAQ Banque Bruxelles Xxxxxxx Morocco Banque Commerciale du Maroc
Ecuador Citibank, N.A. Namibia Stanbic Bank Namibia Limited
Egypt Citibank, N.A. Netherlands MeesPierson
Estonia Hansabank Limited New Zealand Australia and New Zealand Banking Group
Euromarket Cedelbank Nigeria Stanbic Merchant Bank Nigeria Limited
Euromarket Euroclear Norway Den norske Bank ASA
Finland Xxxxxx Bank plc Oman HSBC Bank Middle East
France Paribas Pakistan Standard Chartered Bank
Germany Dresdner Bank AG Panama BankBoston, N.A.
Ghana Merchant Bank (Ghana) Limited Peru Citibank, N.A.
Greece Paribas Philippines HSBC
Hong Kong HSBC Poland Bank Handlowy W Warszawie S.A.
Hungary Citibank Budapest Rt. Portugal Banco Comercial Portugues
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COUNTRY/ COUNTRY/
MARKET SUBCUSTODIAN(S) MARKET SUBCUSTODIAN(S)
-------- --------------- -------- ---------------
Romania ING Bank Taiwan HSBC
Russia Vneshtorgbank (Min Fin Bonds only)-Credit Thailand Standard Chartered Bank/Bangkok Bank Public
Suisse First Boston AO Company Limited
Singapore United Overseas Bank Limited/The Development Trinidad & Tobago Republic Bank Limited
Bank of Singapore Ltd.
Slovakia Ceskoslovenska Obchodni Banka, a.s. Tunisia Banque Internationale Arabe de Tunisie
Slovenia Bank Austria Creditanstalt d.d. Ljubljana Turkey Osmanli Bankasi A.S. (Ottoman Bank)
South Africa The Standard Bank of South Africa Limited Ukraine ING Bank
South Korea Standard Chartered Bank United Kingdom The Bank of New York/First Chicago Clearing
Center
Spain Banco Bibao Vizcaya United States The Bank of New York
Sri Lanka Standard Chartered Bank Uruguay BankBoston, N.A.
Swaziland Stanbic Bank Swaziland Limited Venezuela Citibank, N.A.
Sweden Skandinaviska Enskilda Banken Zambia Stanbic Bank Zambia Limited
Switzerland Union Bank of Switzerland/Credit Suisse Zimbabwe Stanbic Bank Zimbabwe Limited
First Boston
