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 FUNDS TRUST
1. Corporate Bond Portfolio
2. High Income Portfolio
3. Mortgage- and Asset-Backed Portfolio
4. Nations Asset Allocation Fund
5. Nations Bond Fund
6. Nations California Intermediate Municipal Bond Fund
7. Nations California Municipal Bond Fund
8. Nations California Tax-Exempt Reserves
9. Nations Capital Growth Fund
10. Nations Cash Reserves
11. Nations Convertible Securities Fund
12. Nations Florida Intermediate Municipal Bond Fund
13. Nations Florida Municipal Bond Fund
14. Nations Georgia Intermediate Municipal Bond Fund
15. Nations Global Value Fund
16. Nations Government Reserves
17. Nations Government Securities Fund
18. Nations High Yield Bond Fund
19. Nations Intermediate Bond Fund
20. Nations Intermediate Municipal Bond Fund
21. Nations International Equity Fund
22. Nations International Value Fund
23. Nations Kansas Municipal Income Fund
24. Nations LargeCap Index Fund
25. Nations LargeCap Enhanced Core Fund
26. Nations Xxxxxxx 21st Century Fund
27. Nations Xxxxxxx Focused Equities Fund
28. Nations Xxxxxxx Growth Fund
29. Nations Xxxxxxx International Opportunities Fund
30. Nations Maryland Intermediate Municipal Bond Fund
31. Nations MidCap Growth Fund
32. Nations MidCap Index Fund
33. Nations MidCap Value Fund
34. Nations Money Market Reserves
35. Nations Municipal Income Fund
36. Nations Municipal Reserves
37. Nations New York Tax-Exempt Reserves
38. Nations North Carolina Intermediate Municipal Bond Fund
39. Nations Short-Intermediate Government Fund
40. Nations Short-Term Income Fund
41. Nations Short-Term Municipal Income Fund
42. Nations SmallCap Index Fund
43. Nations SmallCap Value Fund
44. Nations Small Company Fund
45. Nations South Carolina Intermediate Municipal Bond Fund
46. Nations Strategic Growth Fund
47. Nations Strategic Income Fund
48. Nations Tax-Exempt Reserves
49. Nations Tennessee Intermediate Municipal Bond Fund
50. Nations Texas Intermediate Municipal Bond Fund
51. Nations Treasury Reserves
52. Nations Value Fund
53. Nations Virginia Intermediate Municipal Bond Fund
NATIONS SEPARATE ACCOUNT TRUST (FORMERLY NATIONS ANNUITY TRUST)
1. Nations Asset Allocation Portfolio
2. Nations Capital Growth Portfolio
3. Nations High Yield Bond Portfolio
4. Nations International Value Portfolio
5. Nations Xxxxxxx Focused Equities Portfolio
6. Nations Xxxxxxx Growth Portfolio
7. Nations Xxxxxxx International Opportunities Portfolio
8. Nations Xxxxxxx 21st Century Portfolio
9. Nations MidCap Growth Portfolio
10. Nations Small Company Portfolio
11. Nations Value Portfolio
NATIONS MASTER INVESTMENT TRUST
1. High Yield Portfolio
2. Nations High Yield Bond Master Portfolio
3. Nations Intermediate Bond Master Portfolio
4. Nations International Equity Master Portfolio
5. Nations International Value Master Portfolio
6. Nations Xxxxxxx Focused Equities Master Portfolio
7. Nations Xxxxxxx Growth Master Portfolio
8. Nations Xxxxxxx International Opportunities Master Portfolio
9. Nations Xxxxxxx 21st Century Master Portfolio
10. Nations SmallCap Value Master Portfolio
11. Nations Strategic Growth Master Portfolio
Last amended: August 1, 2003
IN WITNESS WHEREOF, the parties hereto have caused the amended Appendix
to be executed by their officers designated below as of the 1st day of August,
2003.
NATIONS SEPARATE ACCOUNT TRUST
NATIONS MASTER INVESTMENT TRUST
NATIONS FUNDS TRUST
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Xxxxxx X. Xxxxxxx
Secretary
THE BANK OF NEW YORK
By: /s/ Xxx Xxxxxx
---------------------------
Xxx Xxxxxx
Vice President
