FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of __________________, 2001 between MW Capital Management
Funds (each "the Fund") and The Bank of New York ("BNY").
W I T N E S S E T H:
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 hereby agree 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 Fund.
2. "Eligible Foreign Custodian" shall have the meaning provided in the Rule.
3. "Monitoring System" shall mean a system established by BNY to fulfill the
Responsibilities specified in clauses (d) and (e) of Section 1 of Article
III of this Agreement.
4. "Responsibilities" shall mean the responsibilities delegated to BNY under
the Rule 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.
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, 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 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 the
contract governing such arrangements) 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 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, 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 the
performance of the contract governing such arrangement; and (e) advise the
Fund 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.
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 a transnational system for the central
handling of securities or any 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; (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 the Fund's 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 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) 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 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, the Fund agrees to pay to BNY such compensation
and out-of-pocket expenses payable under the Custody Agreement dated
November 30, 2001.
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 as
a foreign custody manager, 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.
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 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx
Xxxxx, Xxxxxxxxxx 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.
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.
MW Capital MANAGEMENT Funds
By:
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Title:
Tax Identification No.: 00-0000000
THE BANK OF NEW YORK
By:
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Title:
SCHEDULE I
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Country/ Country/
Market Subcustodian(s) Market Subcustodian(s)
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Argentina BankBoston, N.A. Iceland Landsbanki Islands
Australia Commonwealth Bank of Australia/ India HSBC / Deutsche Bank AG
National 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 Barclays Bank of Botswana Ltd. 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 Barclays Bank of Kenya Ltd.
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
l'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 Mauritius HSBC
A.S.
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 Clearstream 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 Barclays Bank of Ghana Ltd. 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
Romania ING Bank Taiwan HSBC
Russia Vneshtorgbank (Min Fin Bonds Thailand Standard Chartered Bank/
only)/ Bangkok Bank Public Company
Credit Suisse First Boston AO Limited
Singapore United Overseas Bank Limited/ Trinidad & Tobago Republic Bank Limited
The Development Bank of
Singapore Ltd.
Slovakia Ceskoslovenska Obchodni Banka, Tunisia Banque Internationale Arabe de
a.s. Tunisie
Slovenia Bank Austria Creditanstalt d.d. Turkey Osmanli Bankasi A.S. (Ottoman
Ljubljana Bank)
South Africa The Standard Bank of South Ukraine ING Bank
Africa Limited
South Korea Standard Chartered Bank United Kingdom The Bank of New York /
The Depository & Clearing
Centre (DCC)
Spain Banco Bilbao Vizcaya Argentaria United States The Bank of New York
S.A. (BBVA)
Sri Lanka Standard Chartered Bank Uruguay BankBoston, N.A.
Swaziland Stanbic Bank Swaziland Limited Venezuela Citibank, N.A.
Sweden Skandinaviska Enskilda Banken Zambia Barclays Bank of Zambia Ltd.
Switzerland Credit Suisse First Boston Zimbabwe Barclays Bank of Zimbabwe Ltd.
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