Exhibit (g)(10)
AMENDMENT
TO
GLOBAL CUSTODY AGREEMENT
This Amendment, dated as of July 2, 2001, is entered into between The
Chase Manhattan Bank (successor to The Chase Manhattan Bank, N.A.) (the "Bank")
and The Galaxy Fund (the "Customer").
WHEREAS, the Bank and the Customer entered into a Global Custody
Agreement dated as of November 1, 1991, as subsequently amended (as so amended,
the "Agreement"); and
WHEREAS, the Bank and the Customer desire to amend certain provisions
of the Agreement to reflect revisions to Rule 17f-5 ("Rule 17f-5") and the
adoption of Rule 17f-7 ("Rule 17f-7") under the Investment Company Act of 1940,
as amended;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter contained, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Except as amended hereby, the Agreement is confirmed in all
respects. Capitalized terms used herein without definition shall have the
meanings described to them in the Agreement.
2. The Agreement is amended by deleting in its entirety the Amendment
to the Agreement dated December 2, 1998 relating to the 1997 revisions to Rule
17f-5.
3. The Agreement is amended by deleting in its entirety the Mutual Fund
Rider attached thereto and inserting in lieu thereof the following Rider:
A. Add the following after the first sentence of Section 3 of the
Agreement:
"At the request of the Customer, Bank may, but need not, add
to Schedule A an Eligible Foreign Custodian 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 to add any such entity."
B. Add the following language to the end of Section 3 of the Agreement:
"(a) The term Subcustodian as used herein shall mean the following:
(i) a "U.S. Bank," which shall mean a U.S. bank as defined in
SEC Rule 17f-5(a)(7); and
(ii) an "Eligible Foreign Custodian," which, as defined in
Rule 17f-5(a)(1) and (5), 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, and
(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. In addition, an Eligible Foreign Custodian shall also
mean any other entity that shall have been so qualified by
exemptive order, rule or other appropriate action of the SEC.
(b) The term "securities depository" as used herein shall mean the
following when referring to a securities depository located:
(i) outside the U.S., an "Eligible Securities Depository"
which, in turn, shall have the same meaning as in Rule
17f-7(b)(1)(i)-(vi), as the same may be amended from time to
time, or that has otherwise been made exempt by an SEC
exemptive order, rule, or other appropriate SEC action, except
that prior to the compliance date with Rule 17f-7 for a
particular securities depository the term "securities
depository" shall be as defined in (a)(1)(ii)-(iii) of the
1997 amendments to Rule 17f-5.
(ii) in the U.S., a "securities depository" as defined in SEC
Rule 17f-4(a).
(c) For purposes of clarity, it is understood and agreed that the term
Subcustodian shall not include any securities depository. For purposes of the
Agreement imposing liability on Bank, the term Subcustodian shall not include
any Eligible Foreign Custodian as to which Bank has not acted as Foreign Custody
Manager."
C. Add a new Section 15 to the Agreement as follows:
15. COMPLIANCE WITH SEC RULE 17f-5.
(a) Customer's board of trustees (or equivalent body) (hereinafter
"Board") hereby delegates to Bank, and Bank hereby accepts the delegation to it
of, the obligation to perform as Customer's "Foreign Custody Manager" (as that
term is defined in Rule 17f-5(a)(3)), including for the purposes of: (i)
selecting Eligible Foreign Custodians (as that term is defined in Rule
17f-5(a)(1), as the same may be amended from time to time, or that have
otherwise been exempted by SEC exemptive order, rule or other appropriate SEC
action) to hold Customer's foreign Securities and cash ("Foreign Assets"), (ii)
evaluating the contractual arrangements with such Eligible Foreign Custodians
(as set forth in Rule 17f-5(c)(2)), and (iii) monitoring such foreign custody
arrangements (as set forth in Rule 17f-5(c)(3)).
(b) In connection with the foregoing, Bank shall:
(i) provide written reports notifying Customer's Board of the placement
of Foreign 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
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Customer's Board at such times as the Board deems reasonable and
appropriate based on the circumstances of Customer's foreign custody
arrangements but, until further notice from Customer requesting a
different schedule, such reports shall be provided not less than
quarterly in summary form, with a more detailed report annually;
(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 Foreign Assets would exercise;
(iii) in selecting an Eligible Foreign Custodian, first have determined
that Foreign 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
Foreign Assets, including, without limitation, those factors set forth
in Rule 17f-5(c)(1)(i)-(iv);
(iv) determine that the written contract with the Eligible Foreign
Custodian requires that the Eligible Foreign Custodian will provide
reasonable care for Foreign Assets based on the standards applicable to
custodians in the relevant market as provided in Rule 17f-5(c)(2); and
(v) have established a system to monitor the continued appropriateness
of maintaining Foreign Assets with particular Eligible Foreign
Custodians and performance of the governing contractual arrangements;
it being understood, however, that in the event that Bank shall have
determined that the existing Eligible Foreign Custodian in a given
country would no longer afford Foreign 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 Foreign Assets.
Subject to (b)(i)-(v) above, Bank is hereby authorized to place and maintain
Foreign Assets on behalf of Customer with Eligible Foreign Custodians pursuant
to a written contract deemed appropriate by Bank.
(c) Except as expressly provided herein and in Section 16 hereof,
Customer shall be solely responsible to assure that the maintenance of Foreign
Assets hereunder complies with the rules, regulations, interpretations and
exemptive orders as 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 (the "1940 Act), as the same may be amended from time to time; (2) its
Board (or other governing body) has determined that it is reasonable to rely on
Bank to perform as Customer's Foreign Custody Manager; and (3) its Board (or
other governing body) or its investment adviser shall have determined that
Customer may maintain Foreign Assets in each country in which Customer's Foreign
Assets shall be held hereunder and
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determined to accept the risks arising therefrom (including but not limited to,
a country's financial infrastructure, prevailing custody and settlement
practices, laws applicable to the safekeeping and recovery of Foreign Assets
held in custody, and the likelihood of nationalization, currency controls and
the like (collectively, "Country Risk")). Nothing contained herein shall require
Bank to make any selection on behalf of Customer that would entail consideration
of Country Risk and, except as provided in (e) below, to engage in any
monitoring of Country Risk.
(e) Bank shall provide to Customer such information relating to Country
Risk as is specified in Appendix 1-A hereto. Customer hereby acknowledges that:
(i) such information is solely designed to inform Customer of market conditions
and procedures and is not intended as a recommendation to invest or not invest
in particular markets; and (ii) Bank has gathered the information from sources
it considers reliable, but that Bank shall have no responsibility for
inaccuracies or incomplete information.
D. Add the following language to the end of the first sentence of
Section 4(d) of the Agreement:
"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. Add a new Section 16 to the Agreement as follows:
"16. COMPLIANCE WITH SEC RULE 17f-7 .
(a) Bank shall, for consideration by Customer, provide an analysis in
accordance with Rule 17f-7(a)(1)(i)(A) of the custody risks associated with
maintaining Customer's Foreign Assets with each Eligible Securities Depository
used by Bank as of the date hereof (or, in the case of an Eligible Securities
Depository not used by Bank as of the date hereof, prior to the initial
placement of Customer's Foreign Assets at such Depository) and at which any
Foreign Assets of Customer are held or are expected to be held. The foregoing
analysis will be provided to Customer at Bank's Website. In connection with the
foregoing, Customer shall notify Bank of any Eligible Securities Depositories at
which it does not choose to have its Foreign Assets held. Bank shall monitor the
custody risks associated with maintaining Customer's Foreign Assets at each such
Eligible Securities Depository on a continuing basis and shall promptly notify
Customer or its adviser of any material changes in such risks.
(b) Bank shall exercise reasonable care, prudence and diligence in
performing the requirements set forth in Section 16(a) above.
(c) Based on the information available to it in the exercise of
diligence, Bank shall determine the eligibility under Rule 17f-7 of each
depository before including it on Appendix 1-B hereto and shall promptly advise
Customer if any Eligible Securities Depository ceases to be
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eligible. (Eligible Securities Depositories used by Bank as of the date hereof
are set forth in Appendix 1-B hereto, and as the same may be amended on notice
to Customer from time to time.)"
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the day and year first above written.
THE CHASE MANHATTAN BANK
By: /s/ XXXXX X. XXXXXX, XX.
------------------------
Name: Xxxxx X. Xxxxxx, Xx.
Title: Vice President
THE GALAXY FUND
By: /s/ XXXXXXX XXXXXXXX
------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
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