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Exhibit 8(b)
FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of _______________, between EUREKA FUNDS (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 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 provide in the
Rule, except that it shall not include any Securities Depository the use of
which is mandatory (i) by law or regulation, (ii) because securities cannot be
withdrawn from such Securities Depository, or (iii) because maintaining
securities outside such Securities Depository is not consistent with prevailing
custodial practices.
4. "Monitoring System" shall mean a system established by BNY to fulfill
the Responsibilities specified in clauses (d) and (e) 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, 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 16, 1997.
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7. "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 selected by BNY and of any material change in the arrangements
with respect to assets of the Fund with any such Eligible Foreign Custodian.
ARTICLE III
RESPONSIBILITIES
1. BNY shall with respect to each Specified Country and each Eligible
Foreign Custodian selected by BNY: (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
Section (c)(1) of the Rule; (b) determine that the Fund's foreign custody
arrangements with each Eligible Foreign Custodian selected by BNY are governed
by a written contract with the Custodian (or, in the case of an Eligible Foreign
Custodian selected by BNY which is 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 described in
preceding clause (b) (or, in the case of an Eligible Foreign Custodian selected
by BNY which is 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) 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
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particular Eligible Foreign Custodian selected by BNY and the contract
governing the arrangement; and (e) advise the Fund whenever an arrangement
described in preceding clause (d) no longer meets the requirements of the Rule
that the Fund must withdraw its assets from such Eligible Foreign Custodian as
soon as reasonably practicable.
2. For purposes of clause (d) of preceding Section 1 of this
Article, appropriateness shall not include, nor be deemed to include, any risks
associated with investment in a particular country. Maintaining assets of the
Fund with an Eligible Foreign Custodian selected by BNY will on any day be
considered appropriate if BNY on such day would select such Eligible Foreign
Custodian in accordance with Articles II and III of this Agreement.
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 has
considered the risks associated with investment in each Specified Country
listed on Schedule 1 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) 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 agrees to indemnify BNY and holds 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
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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.
Without limiting the generality of the foregoing, in no event shall BNY be
liable for any risks associated with investments in a particular country, but
shall only be liable for the risks associated in placing assets of the Fund with
a particular Eligible Foreign Custodian selected by BNY.
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.
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 __________________________________________________ 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.
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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. 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.
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.
EUREKA FUNDS
_______________________________________
BY:
____________________________________
Title:
Tax Identification No.:
THE BANK OF NEW YORK
By:
____________________________________
Title:
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SCHEDULE 1
Specified Countries
