Exhibit (g)(2)
FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of August 1, 2001 between Whitehall Funds Trust (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.
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2. For purposes 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.
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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 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 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 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 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.
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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 by reason of this Agreement.
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.
WHITEHALL FUNDS TRUST
By: /S/ XXXXXX X. XXXXXXX
Title: President
Tax Identification No.:
THE BANK OF NEW YORK
By: /S/ XXX X. XXXXXX
Title: Vice President
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COUNTRY/ COUNTRY/
MARKET SUBCUSTODIAN(S) MARKET SUBCUSTODIAN(S)
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ARGENTINA Banco Rio de la Plata LITHUANIA Vilniaus Bankas
AUSTRALIA National Australia Bank Ltd. LUXEMBOURG Banque et Caisse d'Epargne de l'Etat
AUSTRIA Bank Austria AG MALAYSIA HongKong Bank Malaysia Berhad
BAHRAIN HSBC Bank Middle East MALI Societe Generale de Banques en Cote d'lvoire
BANGLADESH Standard Chartered Bank MALTA HSBC Bank Malta p.l.c.
BELGIUM Banque Bruxelles Xxxxxxx MAURITIUS HSBC
BENIN Societe Generale de Banques en Cote MEXICO Banco Nacional de Mexico
d'lvoire
BERMUDA Bank of Bermuda Limited MOROCCO Banque Commerciale du Maroc
BOLIVIA Citibank, N.A. NAMIBIA Stanbic Bank Namibia Limited
BOTSWANA Barclays Bank of Botswana Ltd. NETHERLANDS Fortis Bank (Nederland) N.V.
BRAZIL BankBoston, N.A. NEW ZEALAND National Australia Bank Ltd. (National Nominees Ltd.)
BULGARIA ING Bank NIGER Societe Generale de Banques en Cote d'lvoire
BURKINA FASO Societe Generale de Banques en Cote NIGERIA Stanbic Merchant Bank Nigeria Limited
d'lvoire
CANADA Royal Bank of Canada NORWAY Den norske Bank ASA
CHILE BankBoston, N.A. OMAN HSBC Bank Middle East
CHINA Standard Chartered Bank PAKISTAN Standard Chartered Bank
COLOMBIA Cititrust Colombia S.A. PALESTINIAN HSBC Bank Middle East
AUTONOMOUS AREA
COSTA RICA Banco BCT PANAMA BankBoston, N.A.
CROATIA Privredna Banka Zagreb d.d. PERU Citibank, N.A.
CYPRUS Bank of Cyprus PHILIPPINES HSBC
CZECH REPUBLIC Ceskoslovenska Obchodni Banka A.S. POLAND Bank Handlowy W Warszawie S.A.
DENMARK Den Danske Bank PORTUGAL Banco Commercial Portugues
EASDAQ Banque Bruxelles Xxxxxxx QATAR HSBC Bank Middle East
ECUADOR Citibank, N.A. ROMANIA ING Bank
EGYPT Citibank, N.A. RUSSIA Vneshtorgbank (Min Fin Bonds only)/Credit Suisse
First Boston AO
ESTONIA Hansabank Limited SENEGAL Societe Generale de Banques en Cote d'lvoire
EUROMARKET Clearstream SINGAPORE United Overseas Bank Limited/ The Development Bank
of Singapore Ltd.
EUROMARKET Euroclear SLOVAK REPUBLIC Ceskoslovenska Obchodni Banka, a.s.
FINLAND Xxxxxx Bank plc SLOVENIA Bank Austria Creditanstalt d.d. Ljubljana
FRANCE BNP Paribas / Credit Agricole SOUTH AFRICA Societe Generale, Johannesburg / The Standard Bank
Indosuez of South Africa Limited
GERMANY Dresdner Bank AG SOUTH KOREA Standard Chartered Bank
GHANA Barclays Bank of Ghana Ltd. SPAIN Banco Bilbao Vizcaya Argentaria S.A. (BBVA)/
Banco Santander Central Hispano (BSCH)
GREECE BNP Paribas SRI LANKA Standard Chartered Bank
GUINEA BISSAU Societe Generale de Banques en Cote SWAZILAND Standard Bank Swaziland Limited
d'lvoire
HONG KONG HSBC SWEDEN Skandinaviska Enskilda Banken
HUNGARY Citibank Budapest Rt. SWITZERLAND Credit Suisse First Boston
ICELAND Landsbanki Islands TAIWAN HSBC
INDIA HSBC/ Deutsche Bank AG THAILAND Standard Chartered Bank/ Bangkok Bank Public
Company Limited
INDONESIA HSBC TOGO Societe Generale de Banques en Cote d'lvoire
IRELAND Allied Irish Banks, plc TRINIDAD & TOBAGO Republic Bank Limited
ISRAEL Bank Leumi LE - Israel B.M. TUNISIA Banque Internationale Arabe de Tunisie
ITALY Banca Commerciale Italiana / BNP TURKEY Omanli Bankasi A.S. (Ottoman Bank)
Paribas
IVORY COAST Societe Generale - Abidjan UNITED ARAB HSBC Bank Middle East, Dubai
EMIRATES
JAMAICA CIBC Trust & Merchant Bank Jamaica UKRAINE ING Bank
Ltd.
JAPAN The Bank of Tokyo-Mitsubishi UNITED KINGDOM Bank of New York/The Depository Clearing Centre
Limited/ (DCC)
The Fuji Bank, Limited
JORDAN HSBC Bank Middle East UNITED STATES The Bank of New York
KAZAKHSTAN ABN/AMRO URUGUAY BankBoston, N.A.
KENYA Barclays Bank of Kenya Ltd. VIETNAM HSBC - Ho Chi Minh City
LATVIA Hansabanka Limited VENEZUELA Citibank, N.A.
LEBANON HSBC Bank Middle East ZAMBIA Barclays Bank of Zambia Ltd.
ZIMBABWE Barclays Bank of Zimbabwe Ltd.
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SCHEDULE
TO THE
FOREIGN CUSTODY MANAGER AGREEMENT
BETWEEN
THE BANK OF NEW YORK
AND
WHITEHALL FUNDS TRUST
SERIES AS LISTED
DATED: AUGUST 1, 2001
PORTFOLIO TAX ID EFFECTIVE DATE
WHITEHALL GROWTH AND INCOME FUND 00-0000000 02/01/1995
WHITEHALL GROWTH FUND 00-0000000 02/01/1995
WHITEHALL INCOME FUND 00-0000000 02/01/1995
WHITEHALL HIGH YIELD FUND 00-0000000 04/02/01
