FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of
_________________, 2010 by and between each entity listed on Annex I attached
hereto (the “Fund”) and The Bank of New York Mellon (“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
Mellon 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 are in accordance with the Rule
and 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 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. In no
event shall the Fund be liable to BNY or any third party for special, indirect
or consequential damages, or for lost profits or loss of business, arising in
connection with this Agreement.
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 Xxx Xxxx 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 000 Xxxx Xxx., 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.
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.
EACH
OF THE FUNDS OR SERIES IDENTIFIED IN ANNEX I
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By:
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Title:
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THE
BANK OF NEW YORK MELLON
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By:
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Title:
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ANNEX
I
Fund
Name
GLG
International Small Cap Fund
.
SCHEDULE
I
Specified
Countries
Argentina
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Australia
|
Austria
|
Bahrain
|
Bangladesh
|
Belgium
|
Benin
|
Bermuda
|
Botswana
|
Brazil
|
Bulgaria
|
Canada
|
Cayman
Islands
|
Channel
Islands
|
Chile
|
China
|
Colombia
|
Costa
Rica
|
Croatia
|
Cyprus
|
Czech
Republic
|
Denmark
|
Ecuador
|
Egypt
|
Estonia
|
Euromarkets
(Euroclear - Eurobonds only)
|
Euromarkets
(Clearstream - Eurobonds only)
|
Finland
|
France
|
Germany
|
Greece
|
Hong
Kong
|
Hungary
|
Iceland
|
India
|
Indonesia
|
Ireland
|
Israel
|
Italy
|
Jamaica
|
Japan
|
Jordan
|
Kazakhstan
|
Kenya
|
Kuwait
|
Latvia
|
Lebanon
|
Lithuania
|
Luxembourg
|
Malaysia
|
Malta
|
Mauritius
|
Mexico
|
Morocco
|
Namibia
|
Netherlands
|
New
Zealand
|
Nigeria
|
Norway
|
Oman
|
Pakistan
|
Palestinian
Autonomous Area
|
Panama
|
Peru
|
Philippines
|
Poland
|
Portugal
|
Qatar
|
Romania
|
Russia
|
Singapore
|
Xxxxxx
Xxxxxxxx
|
Xxxxxxxx
|
Xxxxx
Xxxxxx
|
Xxxxx
Xxxxx
|
Xxxxx
|
Sri
Lanka
|
Sweden
|
Switzerland
|
Taiwan
|
Thailand
|
Togo
|
Trinidad
& Tobago
|
Tunisia
|
Turkey
|
UAE
|
UK
|
Ukraine
|
Uruguay
|
Venezuela
|
Vietnam
|
Zambia
|
Zimbabwe
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