EXHIBIT G(2)
AMENDED AND RESTATED
FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of June 6, 2001 between TD Waterhouse Trust (the
"Fund") and The Bank of New York ("BNY").
W I T N E S S E T H:
WHEREAS, the Fund has previously appointed BNY as a foreign custody
manager under a certain Foreign Custody Manager Agreement dated November 5, 1999
(the "Prior Agreement");
WHEREAS, the Fund and BNY desire to re-affirm such appointment and 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, the 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. Capitalized terms used in this Agreement and not otherwise defined
in this Agreement shall have the meanings given such terms in the Rule.
2. "BOARD" shall mean the board of directors or board of trustees, as
the case may be, of the Fund.
3. "ELIGIBLE FOREIGN CUSTODIAN" shall have the meaning provided in the
Rule.
4. "MONITORING SYSTEM" shall mean a system established by BNY to
fulfill the Responsibilities specified in (d) and (e) of Section 1 of Article
III of this Agreement.
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 amended, as such Rule became effective on June 12, 2000.
7. "SPECIFIED COUNTRY" shall mean each country listed on Schedule I
attached hereto (as such Schedule may be amended by BNY from time to time) 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 (the "Delegation").
2. BNY accepts the Delegation 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 such term is defined by the Rule)
would exercise.
3. BNY shall provide to the Board and the Fund's investment adviser
notice promptly after the placement of Foreign Assets of the Fund with a
particular Eligible Foreign Custodian selected by BNY within a Specified
Country, and 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 and the Fund's investment adviser of any material change in
the arrangements (including any material change in any contract governing such
arrangements) with respect to Foreign 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 Foreign 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
Section (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,
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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 in their entirety; (d) monitor pursuant to
the Monitoring System the appropriateness of maintaining the Foreign Assets of
the Fund with a particular Eligible Foreign Custodian pursuant to paragraph
(c)(1) of the Rule including the performance of the contract governing such
arrangement; and (e) promptly advise the Fund and its investment adviser
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 withdraw the Fund's Foreign Assets from such Eligible Foreign Custodian as
promptly as is reasonably practicable.
2. 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) an Eligible Foreign Custodian's use of any depositories that act as or
operate a system or transnational system for the central handling of securities
or 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.
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; and (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.
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 is a "U.S. bank" as defined in paragraph
(a)(7) of the Rule; and (d) BNY has established and will maintain the Monitoring
System.
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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.
Anything contained herein to the contrary notwithstanding, nothing contained
herein shall affect or alter the duties and responsibilities of BNY or the Fund
under any other agreement between BNY and the Fund, including without
limitation, the Custody Agreement or any Securities Lending Agreement.
2. The Fund agrees to indemnify BNY and hold it harmless from and
against any and all costs, expenses, damages, liabilities or claims, including
reasonable 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. 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 with respect to the subject matter. In the event of a conflict between the
provisions in the Custody Agreement between the Fund and the Custodian and the
terms of this Agreement, the terms of this Agreement shall govern.
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 c/o TD Waterhouse Asset Management, 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxxx, Senior
Vice President, or at such other place as the Fund may from time to time
designate in writing.
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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 exclusive 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 sixty (60)
days after the date of such notice.
9. In consideration of the services provided by BNY hereunder, the Fund
shall pay to BNY such compensation and out-of-pocket expenses as may be agreed
upon from time to time.
10. For each Fund organized as a Massachusetts business trust, a copy
of its Declaration of Trust is on file with the Secretary of the Commonwealth of
Massachusetts. Notice is hereby given that each such instrument is executed on
behalf of the trustees of each such Fund and not individually, and that the
obligations of this Agreement are not binding upon any of the trustees or
shareholders individually but are binding only upon the respective Fund. The
parties expressly agree that BNY and its assignees and affiliates shall look
solely to the respective Fund's assets and property with respect to enforcement
of any claim.
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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.
/s/ Xxxxxxxxxxx X. Xxxxxx, Secretary
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on behalf of each Fund identified on Schedule I attached
hereto individually and severally, and not jointly and
severally
THE BANK OF NEW YORK
By:/s/ Xxxxxx X. XxXxxx
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Title: Vice President
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FOREIGN CUSTODY MANAGER AGREEMENT
SCHEDULE I
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