Exhibit 8.2
Amendment to Global Custody Agreement
AMENDMENT, dated February 26, 1998 to the September 8, 1997 custody
agreement ("Agreement"), between The Analytic Series Fund ("Customer"), having a
place of business at 000 Xxxxx Xxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000 and The
Chase Manhattan Bank ("Bank"), having a place of business at 000 Xxxx Xxx., Xxx
Xxxx, X.X. 00000-0000.
It is hereby agreed as follows:
Section 1. Except as modified hereby, the Agreement is confirmed in all
respects. Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Agreement.
Section 2. The Agreement is amended by deleting the investment company
rider thereto and inserting, in lieu thereof, the following investment company
rider:
"A. Add a new Section 15 to the Agreement as follows:
15. Compliance with SEC rule 17f-5.
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(a) Customer's board of directors (or equivalent body)
(hereinafter "Board") hereby delegates to Bank, and, except as to the
country or countries as to which Bank may, from time to time, advise
Customer that it does not accept such delegation, Bank hereby accepts the
delegation to it, of the obligation to perform as Customer's "Foreign
Custody Manager" (as the term is defined in SEC rule 17f-5(a)(2), both for
the purpose of selecting Eligible Foreign Custodians (as that term is
defined in SEC rule 17f-5(a)(1), and as the same may be amended from time
to time, or that have otherwise been made exempt pursuant to an SEC
exemptive order) to hold Assets and of evaluating the contractual
arrangements with such Eligible Foreign Custodians (as set forth in SEC
rule 17f-5(c)(2)); provided that, the term Eligible Foreign Custodian shall
not include any "Compulsory Depository." For each Compulsory Depository
used or intended to be used by Customer of which Bank is advised, Bank
shall provide Customer from time to time with information addressing the
factors set forth in SEC Rule 17f-5(c)(1) to the extent reasonably
available to Bank, together with Bank's analysis of the same (as an example
of which is set forth in Appendix 1 hereto) to assist Customer in
determining the appropriateness of
placing Assets therein. A Compulsory Depository shall mean a securities
depository or clearing agency the use of which is compulsory because: (1)
its use is required by law or regulation, (2) securities cannot be
withdrawn from the depository, or (3) maintaining securities outside the
depository is not consistent with prevailing custodial practices in the
country which the depository serves. Compulsory Depositories used by Chase
as of the date hereof are set forth in Appendix 1-A hereto, and as the same
may be amended on notice to Customer from time to time.
(b) In connection with the foregoing, Bank shall:
(i) provide written reports notifying Customer's Board of
the placement of Assets with particular Eligible Foreign Custodians
and of any material change in the arrangements with such Eligible
Foreign Custodians, with such reports to be provided to Customer's
Board at such times as the Board deems reasonable and appropriate
based on the circumstances of Customer's foreign custody (and until
further notice from Customer such reports shall be provided not less
than quarterly with respect to the placement of Assets with particular
Eligible Foreign Custodians and with reasonable promptness, but not
less than quarterly, upon the occurrence of any material change in the
contracts, arrangements, procedures or practices with such Eligible
Foreign Custodians);
(ii) exercise such reasonable care, prudence and diligence in
performing as Customer's Foreign Custody Manager as a person having
responsibility for the safekeeping of Assets would exercise.
(iii) in selecting an Eligible Foreign Custodian, first have
determined that Assets placed and maintained in the safekeeping of
such Eligible Foreign Custodian shall be subject to reasonable care,
based on the standards applicable to custodians in the relevant
market, after having considered all factors relevant to the
safekeeping of such Assets, including, without limitation, those
factors set forth in SEC rule 17f-5(c)(1)(i)-(iv).
(iv) determine that the written contract with the Eligible
Foreign Custodian (or, in the case
of an Eligible Foreign Custodian that is a securities depository or
clearing agency, such contract, the rules or established practice or
procedures of the depository, or any combination of the foregoing)
requires that the Eligible Foreign Custodian will provide reasonable
care for Assets based on the standards applicable to custodians in the
relevant market. In making this determination, Bank shall consider the
provisions of Rule 17f-5(c)(2), together with whether Bank shall be
liable to Customer for any loss which shall occur as the result of the
failure of the Eligible Foreign Custodian to exercise reasonable care
with respect to the safekeeping of such Assets to the same extent that
Bank would be liable to Customer if Bank were holding such Assets in
New York; and
(v) have established a system to monitor the continued
appropriateness of maintaining Assets with particular Eligible Foreign
Custodians and of the governing contractual arrangements; it being
understood, however, that in that event that Bank shall have
determined that the existing Eligible Foreign Custodian in a given
country would no longer afford Assets reasonable care and that no
other Eligible Foreign Custodian in that country would afford
reasonable care, Bank shall promptly so advise Customer and shall then
act in accordance with the Instructions of Customer with respect to
the disposition of the affected Assets.
Subject to (b)(i)-(v) above, Bank is hereby authorized to place and maintain
Assets on behalf of Customer with Eligible Foreign Custodians pursuant to a
written contract deemed appropriate by Bank.
(c) Except as expressly provided herein, Customer shall be
solely responsible to assure that the maintenance of Assets hereunder
complies with the rules, regulation, interpretations and exemptive orders
promulgated by or under the authority of the SEC.
(d) Bank represents to Customer that it is a U.S. Bank as
defined in Rule 17f-5(a)(7). Customer represents to Bank that: (1) the
Assets being placed and maintained in Bank's custody are subject to the
Investment Company Act of 1940, as amended (the "1940 Act"), as the same
may be amended from time to time; (2) its Board: (i)
has determined that it is reasonable to rely on Bank to perform as
Customer's Foreign Custody Manager (ii) or its Foreign Custody Manager
(other than Bank) shall have determined that Customer may maintain Assets
in each country in which Customer's Assets shall be held hereunder and
determined to accept the risks arising therefrom (including, but not
limited to, a country's financial infrastructure (and including any
Compulsory Depository operating in such country), prevailing custody and
settlement practices, laws applicable to the safekeeping and recovery of
Assets held in custody, and the likelihood of nationalization, currency
controls and the like).
B. Add the following after the first sentence of Section 3 of the
Agreement:
At the request of Customer, Bank may, but need not, add to Schedule A
an Eligible Foreign Custodian that is either a bank or a non-Compulsory
Depository where Bank has not acted as Foreign Custody Manager with respect
to the selection thereof. Bank shall notify Customer in the event that it
elects not to add any such entity.
C. Add the following language to the end of Section 3 of the
Agreement:
(a) a "U.S. Bank," which shall mean a U.S. bank as defined in
SEC rule 17f-5(a)(7); and
(b) an "Eligible Foreign Custodian," which shall mean (i) a
banking institution or trust company, incorporated or organized under the
laws of a country other than the United States, that is regulated as such
by that country's government or an agency thereof, (ii) a majority-owned
direct or indirect subsidiary of a U.S. bank or bank holding company which
subsidiary is incorporated or organized under the laws of a country other
than the United States; (iii) a securities depository or clearing agency,
incorporated or organized under the laws of a country other than the United
States, that acts as a system for the central handling of securities or
equivalent book-entries in that country and that is regulated by a foreign
financial regulatory authority as defined under section 2(a)(5) of the 1940
Act, (iv) a securities depository or clearing agency organized under the
laws of a country other than the United States to the extent acting as a
transnational system for the central handling of securities
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or equivalent book-entries, and (v) any other entity that shall have been
so qualified by exemptive order, rule or other appropriate action of the
SEC.
For purposes of clarity, it is agreed that as used in Section 12(a)(i), the term
Subcustodian shall include neither any Eligible Foreign Custodian as to which
Bank has not acted as Foreign Custody Manager nor any Compulsory Depository.
D. Insert the following language at the beginning of the second
sentence of Section 4(d): "or, in the case of cash deposits, except for
liens or rights in favor of creditors of the Subcustodian arising under
bankruptcy, insolvency or similar laws."
E. Insert the following language at the beginning of the second
sentence of Section 12(a)(i):
Except with respect to those countries as to which the parties may
from time to time agree in writing otherwise."
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
THE ANALYTIC SERIES FUND
By:
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Title:
THE CHASE MANHATTAN BANK
By:
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Title:
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Appendix 1-A
Compulsory Depositories
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Appendix 1-B
Information Regarding Country Risk
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1. To aid Customer's investment advisers in their determinations
regarding Country Risk, Bank shall furnish Customer annually and upon the
initial placing of Assets into a country the following information (check items
applicable):
A. Opinions of local counsel concerning:
i. Whether applicable foreign law would restrict the access afforded
____ Customer's independent public accountants to books and records kept by
an eligible foreign custodian located in that country.
ii. Whether applicable foreign law would restrict the Customer's ability
____ to recover its assets in the event of the bankruptcy of an Eligible
Foreign Custodian located in that country.
iii. Whether applicable foreign law would restrict the Customer's ability
____ to recover assets that are lost while under the control of an Eligible
foreign Custodian located in the country.
B. Written information concerning:
i. The likelihood of expropriation, nationalization, freezes, or
____ confiscation of Customer's assets.
ii. Whether difficulties in converting Customer's cash and cash
____ equivalents to U.S. dollars are reasonably foreseeable.
C. A market report with respect to the following topics:
(i) securities regulatory environment, (ii) foreign ownership restrictions,
(iii) foreign exchange, (iv) securities settlement and registration, (v)
taxation, and (vi) compulsory depositories (including depository
evaluation).
2. To aid Customer's investment advisers in monitoring Country Risk, Bank
shall furnish Customer the following additional information:
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Market flashes, including with respect to changes in the information in market
reports.
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