Exhibit (8)(a)
GLOBAL CUSTODY AGREEMENT
This AGREEMENT is effective November 1, 1991, and is between THE CHASE
MANHATTAN BANK, N.A. (the "Bank") and The Galaxy Fund, a Massachusetts business
trust (the "Customer").
WHEREAS, the parties desire to arrange for the custody of the assets of
certain portfolios of the Customer by the Bank and by foreign banks, selected by
the Bank on behalf of the Customer with the Customer's approval, acting as the
Customer's foreign custodians.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the Bank and the Customer hereby agree as follows:
1. CUSTOMER ACCOUNTS.
The Bank agrees to establish and maintain the following accounts
("Accounts"):
(a) One or more custody accounts (singly, a "Custody Account" and
collectively, the "Custody Accounts") for any and all stocks, shares, bonds,
debentures, notes, mortgages or other obligations for the payment of money,
bullion, coin and any certificates, receipts, warrants or other instruments
representing rights to receive, purchase or subscribe for the same or evidencing
or representing any other rights or interests therein and other similar property
whether certificated or uncertificated as may be received by the Bank or its
Subcustodian (as defined in Section 3) for the account of the Customer's
portfolios ("Securities"); and
(b) One or more deposit accounts (singly, a "Deposit Account" and
collectively, the "Deposit Accounts") for any and all cash in any currency
received by the Bank or its Subcustodian for the account of the Customer's
portfolios, which cash shall not be subject to withdrawal by draft or check.
The Customer warrants its authority to: 1) deposit the cash and securities
("Assets") received in the Accounts and 2) give Instructions (as defined in
Section 11) concerning the Accounts.
Upon written agreement between the Bank and the Customer, additional
Accounts may be established and separately accounted for as additional Accounts
under the terms of this Agreement.
(c) The Bank shall, upon receipt of Instructions, establish and maintain a
segregated account or accounts on its records for
and on behalf of the Customer, into which account or accounts may be transferred
cash and/or securities, including securities in the Book-Entry System (defined
in Section 3A below) (i) for the purposes of compliance by the Customer with the
procedures required by a securities or options exchange, and (ii) for other
proper corporate purposes, but only, in the case of clause (ii), upon receipt of
Instructions in writing.
(d) The Bank may enter into separate custodial agreements with various
futures commission merchants ("FCMs") that the Customer uses (each an "FCM
Procedural Agreement"), pursuant to which the Customer's margin deposits in any
transactions involving futures contracts and options on futures contracts will
be held by the Bank in accounts (each an "FCM Account") subject to the
disposition by the FCM involved in such contracts in accordance with the
customer contract between FCM and the Fund, SEC rules governing such segregated
accounts, CFTC rules and the rules of the applicable commodities exchange. Such
FCM Procedural Agreements shall only be entered into upon receipt of
Instructions from the Customer which state that (i) a customer agreement between
the FCM and the Customer has been entered into; and (ii) the Customer is in
compliance with all the rules and regulations of the CFTC. Transfers of initial
margin shall be made into an FCM Account only upon Instructions in writing;
transfers of premium and variation margin may be made into an FCM Account
pursuant to oral Instructions. Transfers of funds from an FCM Account to the
FCM for which the Bank holds such an account may only occur upon certification
by the FCM to the Bank that pursuant to the FCM Procedural Agreement and the
contract between the Bank and the FCM, all conditions precedent to its right to
give the Bank such instructions have been satisfied.
2. MAINTENANCE OF SECURITIES AND CASH AT BANK AND SUBCUSTODIAN LOCATIONS.
Unless Instructions specifically require another location acceptable to the
Bank:
(a) Securities will be held in the country or other jurisdiction in which
the principal trading market for such Securities is located, where such
Securities are to be presented for payment or where such Securities are
acquired; and
(b) Cash will be credited to an account in a country or other jurisdiction
in which such cash may be legally deposited or is the legal currency for the
payment of public or private debts.
Cash may be held pursuant to Instructions in either interest or
non-interest bearing accounts as may be available for the particular currency.
To the extent Instructions are issued and the Bank can comply with such
Instructions, the Bank is
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authorized to maintain cash balances on deposit for the Customer with itself or
one of its affiliates at such reasonable rates of interest as may from time to
time be paid on such accounts, or in non-interest bearing accounts as the
Customer may direct, if acceptable to the Bank.
3. SUBCUSTODIANS AND SECURITIES DEPOSITORIES.
The Bank may act under this Agreement through the subcustodians listed in
Schedule A of this Agreement with which the Bank has entered into subcustodial
agreements ("Subcustodians"). The Customer authorizes the Bank to hold Assets
in the Accounts in accounts which the Bank has established with one or more of
its branches or Subcustodians. The Bank and Subcustodians are authorized to
hold any of the Securities in their account with any securities depository in
which they participate.
The Bank reserves the right to add new, replace or remove Subcustodians.
The Customer will be given reasonable notice by the Bank of any amendment to
Schedule A. Upon request by the Customer, the Bank will identify the name,
address and principal place of business of any Subcustodian of the Customer's
Assets and the name and address of the governmental agency or other regulatory
authority that supervises or regulates such Subcustodian.
3A. USE OF BOOK-ENTRY SYSTEM.
The Customer shall deliver to the Bank a certified resolution of the Board
of Trustees of the Customer approving, authorizing and instructing the Bank on a
continuous and on-going basis until instructed to the contrary by Instructions
actually received by the Bank (i) to deposit in the Book-Entry System (defined
below) all securities of the Customer eligible for deposit therein and (ii) to
utilize the Book-Entry System to the extent possible in connection with
settlements of purchases and sales of securities by the Customer, and deliveries
and returns of securities collateral in connection with borrowings. Without
limiting the generality of such use, it is agreed that the following provisions
shall apply thereto:
(a) Securities and any cash of the Customer deposited in the Book-Entry
System will at all times be segregated from any assets and cash controlled by
the Bank in other than a fiduciary or custodian capacity but may be commingled
with other assets held in such capacities. The Bank and its Subcustodians will
pay out money only upon receipt of securities and will deliver securities only
upon the receipt of money unless otherwise instructed.
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(b) All books and records maintained by the Bank which relate to the
Customer's participation in the Book-Entry System will at all times during the
Bank's regular business hours be open to the inspection of the Customer's duly
authorized employees or agents and the Customer will be furnished with
information in respect of the services rendered to it as it may reasonably
require.
(c) The Bank will provide the customer with copies of any report obtained
by the Bank on the System of internal accounting control of the Book-Entry
System as soon as practicable after receipt of such a report by the Bank. The
Bank will also provide the Customer with such reports on its own system of
internal control as the Customer may reasonably request from time to time.
(d) As used in this Agreement, the term "Book-Entry System" means the
Federal Reserve/Treasury book-entry system for United States and federal agency
securities, its successor or successors and its nominee or nominees and any
book-entry system maintained by a clearing agency registered with the SEC
pursuant to Section 17A of the Securities and Exchange Act of 1934, use of which
has been approved by resolutions adopted by the Customer's Board of Trustees.
4. USE OF SUBCUSTODIAN.
With respect to Assets credited to the Accounts in the custody of a
Subcustodian:
(a) The Bank will identify such Assets on its books as belonging to the
Customer.
(b) A Subcustodian will hold such Assets together with assets belonging to
other customers of the Bank in accounts identified on such Subcustodian's books
as special custody accounts for the exclusive benefit of customers of the Bank.
(c) Any Assets in the Accounts held by a Subcustodian will be subject only
to the instructions of the Bank or its agent. Any Securities held in a
securities depository for the account of a Subcustodian will be subject only to
the instructions of such Subcustodian acting in accordance with instructions of
the Bank.
(d) Any agreement the Bank enters into with a Subcustodian for holding its
customer's assets shall provide that such assets will not be subject to any
right, charge, security interest, lien or claim of any kind in favor of such
Subcustodian or its creditors including a receiver or trustee in bankruptcy
except for safe custody or administration, and that the beneficial ownership of
such assets will be freely transferable without the payment of money or value
other than for safe custody or
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administration.
5. DEPOSIT ACCOUNT TRANSACTIONS.
(a) The Bank or its Subcustodians will make payments from the Deposit
Account upon receipt of Instructions which include all information required by
the Bank.
(b) In the event that any payment to be made under this Section 5 exceeds
the funds available in the Deposit Account, the Bank, in its discretion, may
advance the Customer such excess amount which shall be deemed a loan payable on
demand, bearing interest at the rate customarily charged by the Bank on similar
loans.
(c) If the Bank credits the Deposit Account on a payable date, or at any
time prior to actual collection and reconciliation to the Deposit Account, with
interest, dividends, redemptions or any other amount due, the Customer will
promptly return any such amount upon oral or written notification: (i) that
such amount has not been received in the ordinary course of business or (ii)
that such amount was incorrectly credited. If the Customer does not promptly
return any amount upon such notification, the Bank shall be entitled, upon oral
or written notification to the Customer, to reverse such credit by debiting the
Deposit Account for the amount previously credited. The Bank or its
Subcustodian shall have no duty or obligation to institute legal proceedings,
file a claim or a proof of claim in any insolvency proceeding or take any other
action with respect to the collection of such amount, but may act for the
Customer upon Instructions after consultation with the Customer.
6. CUSTODY ACCOUNT TRANSACTIONS.
(a) Securities will be transferred, exchanged or delivered by the Bank or
its Subcustodian upon receipt by the Bank of Instructions which include all
information required by the Bank. Settlement and payment for Securities
received for, and delivery of Securities out of, the Custody Account may be made
in accordance with the customary or established securities trading or securities
processing practices and procedures in the jurisdiction or market in which the
transaction occurs, including, without limitation, delivery of Securities to a
purchaser, dealer or their agents against a receipt with the expectation of
receiving later payment and free delivery. Delivery of Securities out of the
Custody Account may also be made in any manner specifically required by
Instructions acceptable to the Bank.
(b) The Bank, in its discretion, may credit or debit the Accounts on a
contractual settlement date with cash or Securities
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with respect to any sale, exchange or purchase of Securities. Otherwise, such
transactions will be credited or debited to the Accounts on the date cash or
Securities are actually received by the Bank and reconciled to the Account.
(i) The Bank may reverse credits or debits made to the Accounts in
its discretion if the related transaction fails to settle within
a reasonable period, determined by the Bank in its discretion,
after the contractual settlement date for the related
transaction.
(ii) If any Securities delivered pursuant to this Section 6 are
returned by the recipient thereof, the Bank may reverse the
credits and debits of the particular transaction at any time.
7. ACTIONS OF THE BANK.
The Bank shall follow Instructions received regarding Assets held in the
Accounts. However, until it receives Instructions to the contrary, the Bank
will and will instruct each Subcustodian to:
(a) Deposit all cash received by the Bank in a Deposit Account and all
cash received by a Subcustodian in a deposit account maintained in the name of
the Bank with the Subcustodian for credit to a Deposit Account.
(b) Accept, open and act appropriately with respect to all mail directed
to the Customer in care of the Bank or a Subcustodian.
(c) Disclose the Customer's name, address and securities position to the
issuers of securities when requested to do so by them and approved by the
Customer.
(d) Present for payment any Securities which are called, redeemed or
retired or otherwise become payable and all coupons and other income items which
call for payment upon presentation, to the extent that the Bank or Subcustodian
is actually aware of such opportunities and hold monies received upon such
presentations for credit to a Deposit Account.
(e) Execute in the name of the Customer such ownership and other
certificates as may be required to obtain payments in respect of Securities.
(f) Exchange interim receipts or temporary Securities for definitive
Securities.
(g) Appoint brokers and agents for any transaction
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involving the Securities, including, without limitation, affiliates of the Bank
or any Subcustodian.
(h) At least monthly and from time to time, issue statements to the
Customer identifying the Assets in the Accounts. Promptly after the close of
business each day, the Bank will send the Customer an advice or notification of
any transfers of Assets to or from the Accounts during the said day. Such
statements, advice or notifications shall indicate the identity of the entity
having custody of the Assets. Unless the Customer sends the Bank a written
exception or objection to the contents of any Bank statement within sixty (60)
days of receipt, the Customer shall be deemed to have approved such statement.
In such event, or where the Customer has otherwise approved any such statement,
the Bank shall, to the extent permitted by law, be released, relieved and
discharged with respect to all matters set forth in such statement or reasonably
implied therefrom as though it had been settled by the decree of a court of
competent jurisdiction in an action where the Customer and all persons having or
claiming an interest in the Customer or the Customer's Accounts were parties.
(i) At such times reasonably requested by the Customer (it is agreed that
annual requests are reasonable), provide information with respect to the
Subcustodians including, but not limited to, information regarding corporate
structure and capital adequacy.
(j) Promptly provide the Customer with notice of any significant amendment
of any subcustodian agreement pursuant to which the assets of the Customer are
held.
(k) Promptly notify the Customer if, to the Bank's knowledge, any
Subcustodian ceases to be an "Eligible Foreign Custodian" within the meaning of
paragraph (c)(2) of Rule 17f5 under the Investment Company Act of 1940 (or any
successor provision).
All collections of funds or other property paid or distributed in respect
of Securities in the Custody Account shall be made at the risk of the Customer.
The Bank shall have no liability for any loss occasioned by delay in the actual
receipt of notice by the Bank or by its Subcustodians of any payment, redemption
or other transaction regarding Securities in the Custody Account in respect of
which the Bank has agreed to take any action under this Agreement.
8. CORPORATE ACTIONS; PROXIES.
Whenever the Bank receives information concerning the Securities which
requires discretionary action by the beneficial
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owner of the Securities (other than a proxy), such as subscription rights, bonus
issues, stock repurchase plans and rights offerings, or legal notices or other
material intended to be transmitted to securities holders ("Corporate Actions"),
the Bank will:
(a) Give the Customer notice of such Corporate Actions to the extent that
the Bank's central corporate actions department has actual knowledge of a
Corporate Action in time to notify its customers.
(b) Take such steps as may reasonably be necessary to secure or otherwise
prevent the loss of rights relating to any Securities; PROVIDED that it shall be
understood that the timely monitoring of investment data provided by a
recognized international investment data service by the Bank will be deemed to
fulfill the Bank's obligations under this Section 8(b); and further PROVIDED
that the Bank acts promptly in respect thereof.
When a rights entitlement or a fractional interest resulting from a rights
issue, stock dividend, stock split or similar Corporate Action is received which
bears an expiration date, the Bank will endeavor to obtain Instructions from the
Customer or its Authorized Person, but if Instructions are not received in time
for the Bank to take timely action, or actual notice of such Corporate Action
was received too late to seek Instructions, the Bank is authorized to sell such
rights entitlement or fractional interest and to credit the Deposit Account with
the proceeds or take any action it deems, in good faith, to be appropriate in
which case it shall be held harmless for any such action.
The Bank will deliver proxies to the Customer or its designated agent
pursuant to special arrangements which may have been agreed to in writing. Such
proxies shall be executed in the appropriate nominee name relating to Securities
in the Custody Account registered in the name of such nominee but without
indicating the manner in which such proxies are to be voted; and where bearer
Securities are involved, proxies will be delivered in accordance with
Instructions.
9. NOMINEES.
Securities which are ordinarily held in registered form may be registered
in a nominee name of the Bank. Subcustodian or securities depository, as the
case may be. The Bank may without notice to the Customer cause any such
Securities to cease to be registered in the name of any such nominee and to be
registered in the name of the Customer. In the event that any Securities
registered in a nominee name are called for partial redemption by the issuer,
the Bank may allot the called portion to the respective beneficial holders of
such class of security in any
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manner the Bank deems to be fair and equitable. The Customer agrees to hold the
Bank, Subcustodians, and their respective nominees harmless from any liability
arising directly or indirectly from their status as a mere record holder of
Securities in the Custody Account.
10. AUTHORIZED PERSONS.
As used in this Agreement, the term "Authorized Person" means employees or
agents including investment managers as have been designated in resolutions of
the Board of Trustees of the Customer, certified to the Bank from time to time
by the Customer's Secretary or Assistant Secretary, to act on behalf of the
Customer under this Agreement. Such persons shall continue to be Authorized
Persons until such time as the Bank receives Instructions from the Customer that
any such employee or agent is no longer an Authorized Person.
11. INSTRUCTIONS.
The term "Instructions" means instructions of any Authorized Person
received by the Bank, via telephone, telex, TWX, facsimile transmission, bank
wire or other teleprocess or electronic instruction or trade information system
acceptable to the Bank which the Bank believes in good faith to have been given
by Authorized Persons or which are transmitted with proper testing or
authentication pursuant to terms and conditions which the Bank may specify.
Unless otherwise expressly provided, all Instructions shall continue in full
force and effect until cancelled or superseded.
Any Instructions delivered to the Bank by telephone shall promptly
thereafter be confirmed in writing by an Authorized Person (which confirmation
may bear the facsimile signature of such Person), but the Customer will hold the
Bank harmless for the failure of an Authorized Person to send such confirmation
in writing, the failure of such confirmation to conform to the telephone
instructions received or the Bank's failure to produce such confirmation at any
subsequent time. The Bank may electronically record any Instructions given by
telephone, and any other telephone discussions with respect to the Custody
Account. The Customer shall be responsible for safeguarding any testkeys,
identification codes or other security devices which the Bank shall make
available to the Customer or its Authorized Persons.
12. STANDARD OF CARE; LIABILITIES.
(a) The Bank shall be responsible for the performance of only such duties
as are set forth in this Agreement or expressly contained in Instructions which
are consistent with the
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provisions of this Agreement as follows:
(i) The Bank will use reasonable care with respect to its obligations
under this Agreement and the safekeeping of Assets. The Bank
shall be liable to the Customer for any loss which shall
occur as the result of the failure of a Subcustodian to exercise
reasonable care with respect to the safekeeping of such Assets to
the same extent that the Bank would be liable to the Customer if
the Bank were holding such Assets in New York. In the event of
any loss to the Customer by reason of the failure of the Bank or
its Subcustodian to utilize reasonable care, the Bank shall be
liable to the Customer only to the extent of the Customer's
direct damages plus interest at the Fed Funds rate of interest
from the date of the loss, to be determined based on the market
value of the property which is the subject of the loss at the
date of discovery of such loss and without reference to any
special conditions or circumstances.
(ii) The Bank will not be responsible for any act, omission, default
or for the solvency of any broker or agent which it or a
Subcustodian appoints unless such appointment was made
negligently or in bad faith.
(iii) The Bank shall be indemnified by, and without liability to the
Customer for any action taken or omitted by the Bank whether
pursuant to Instructions or otherwise within the scope of this
Agreement if such act or omission was in good faith, without
negligence. In performing its obligations under this Agreement,
the Bank may rely on the genuineness of any document which it
believes in good faith to have been validly executed.
(iv) The Customer agrees to pay for and hold the Bank harmless from
any liability or loss resulting from the imposition or
assessment of any taxes or other governmental charges, and any
related expenses with respect to income from or Assets in the
Accounts.
(v) The Bank shall be entitled to rely, and may act, upon the
advice of counsel (who may be counsel for the Customer) on all
matters and shall be without liability for any action reasonably
taken or omitted pursuant to such advice.
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(vi) The Bank need not maintain any insurance for the benefit of the
Customer.
(vii) Without limiting the foregoing, the Bank shall not be liable for
any loss which results from: 1) the general risk of investing,
or 2) investing or holding Assets in a particular country
including, but not limited to, losses resulting from
nationalization, expropriation or other governmental actions;
regulation of the banking or securities industry; currency
restrictions, devaluations or fluctuations; and market conditions
which prevent the orderly execution of securities transactions or
affect the value of Assets.
(viii) Neither party shall be liable to the other for any loss due to
forces beyond their control including, but not limited to strikes
or work stoppages, acts of war or terrorism, insurrection,
revolution, nuclear fusion, fission or radiation, or acts of God.
(b) Consistent with and without limiting the first paragraph of this
Section 12, it is specifically acknowledged that the Bank shall have no duty or
responsibility to:
(i) question Instructions or make any suggestions to the Customer or
an Authorized Person regarding such Instructions;
(ii) supervise or make recommendations with respect to investments or
the retention of Securities;
(iii) advise the Customer or an Authorized Person regarding any default
in the payment of principal or income of any security other than
as provided in Section 5(c) of this Agreement;
(iv) evaluate or report to the Customer or an Authorized Person
regarding the financial condition of any broker, agent or other
party to which Securities are delivered or payments are made
pursuant to this Agreement; and
(v) review or reconcile trade confirmations received from brokers.
The Customer or its Authorized Persons (as defined in Section 10)
issuing Instructions shall bear any responsibility to review such
confirmations against Instructions
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issued to and statements issued by the Bank.
(c) The Customer authorizes the Bank to act under this Agreement
notwithstanding that the Bank or any of its divisions or affiliates may have a
material interest in a transaction, or circumstances are such that the Bank may
have a potential conflict of duty or interest including the fact that the Bank
or any of its affiliates may provide brokerage services to other customers, act
as financial advisor to the issuer of Securities, act as a lender to the issuer
of Securities, act in the same transaction as agent for more than one customer,
have a material interest in the issue of Securities, or earn profits from any of
the activities listed herein.
13. FEES AND EXPENSES.
The Customer and the Bank hereby agree that (i) 440 Financial Group of
Worcester, Inc. ("440 Financial"), the Customer's administrator, shall be
responsible for the payment of all fees and out-of-pocket or incidental expenses
charged by the Bank for its services under this Agreement and (ii) the Customer
shall have no obligation with respect to the payment of such fees and expenses.
14. MISCELLANEOUS.
(a) FOREIGN EXCHANGE TRANSACTIONS. To facilitate the administration of
the Customer's trading and investment activity, the Bank is authorized, at the
request of the Customer, which may include standing instructions, to enter into
spot or forward foreign exchange contracts with the Customer or an Authorized
Person for the Customer and may also provide foreign exchange through its
subsidiaries, affiliates or Subcustodians. Instructions, including standing
instructions, may be issued with respect to such contracts but the Bank may
establish rules or limitations concerning any foreign exchange facility made
available. In all cases where the Bank, its subsidiaries, affiliates or
Subcustodians enter into a foreign exchange contract related to Accounts, the
terms and conditions of the then current foreign exchange contract of the Bank,
its subsidiary, affiliate or Subcustodian and, to the extent not inconsistent,
this Agreement shall apply to such transaction.
(b) CERTIFICATION OF RESIDENCY, ETC. The Customer certifies that it is a
resident of the United States and agrees to notify the Bank of any changes in
residency. The Bank may rely upon this certification or the certification of
such other facts as may be required to administer the Bank's obligations under
this Agreement. The Customer will indemnify the Bank against all losses,
liability, claims or demands arising directly or indirectly from any such
certifications.
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(c) ACCESS TO RECORDS. The Bank shall allow the Customer's independent
public accountant reasonable access to the records of the Bank relating to the
Assets as is required in connection with their examination of books and records
pertaining to the Customer's affairs. Subject to restrictions under applicable
law, the Bank shall also obtain an undertaking to permit the Customer's
independent public accountants reasonable access to the records of any
Subcustodian which has physical possession of any Assets as may be required in
connection with the examination of the Customer's books and records.
(d) GOVERNING LAW; SUCCESSORS AND ASSIGNS. This Agreement shall be
governed by the laws of the State of New York and shall not be assignable by
either party, but shall bind the successors in interest of the Customer and the
Bank.
(e) ENTIRE AGREEMENT; APPLICABLE RIDERS. Customer represents that the
Assets deposited in the Accounts are (Check one):
Employee Benefit Plan or other assets subject to the Employment
----- Retirement Income Security Act of 1974, as amended ("ERISA");
X Mutual Fund assets subject to certain Securities and Exchange
----- Commission ("SEC") rules and regulations;
Neither of the above.
-----
This Agreement consists exclusively of this document together with Schedule
A, Exhibits [ - _______ and the following Rider(s) (Check applicable rider(s)]:
ERISA
-----
X MUTUAL FUND
-----
SPECIAL TERMS AND CONDITIONS
-----
There are no other provisions of this Agreement and this Agreement
supersedes any other agreements, whether written or oral, between the parties.
Any amendment to this Agreement must be in writing, executed by both parties.
(f) SEVERABILITY. In the event that one or more provisions of this
Agreement are held invalid, illegal or enforceable in any respect on the basis
of any particular circumstances or in any jurisdiction, the validity, legality
and enforceability of such provision or provisions under other circumstances or
in other
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jurisdictions and of the remaining provisions will not in any way be affected or
impaired.
(g) WAIVER. Except as otherwise provided in this Agreement, no failure or
delay on the part of either party in exercising any power or right under this
Agreement operates as a waiver, nor does any single or partial exercise of any
power or right preclude any other or further exercises, or the exercise of any
other power or right. No waiver by a party of any provision of this Agreement,
or waiver of any breach or default, is effective unless in writing and signed by
the party against whom the waiver is to be enforced.
(h) NOTICES. All notices under this Agreement shall be effective when
actually received. Any notices or other communications which may be required
under this Agreement are to be sent to the parties at the following addresses or
such other addresses as may subsequently be given to the other party in writing:
Bank: The Chase Manhattan Bank, N.A.
1211 Avenue of the Americas 39th Fl.
Xxx Xxxx, XX 00000
Attention: Global Custody Division
or telex:
--------------------------
Customer: The Galaxy Fund
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Legal Counsel
or telex:
--------------------------
(i) TERMINATION. This Agreement may be terminated by the Customer or the
Bank by giving sixty (60) days written notice to the other, provided that such
notice to the Bank shall specify the names of the persons to whom the Bank shall
deliver the Assets in the Accounts. If notice of termination is given by the
Bank, the Customer shall, within sixty (60) days following receipt of the
notice, deliver to the Bank Instructions specifying the names of the persons to
whom the Bank shall deliver the Assets. In either case the Bank will deliver
the Assets to the persons so specified.
If within sixty (60) days following receipt of a notice of termination by
the Bank, the Bank does not receive Instructions from the Customer specifying
the names of the persons to whom the Bank shall deliver the Assets, the Bank, at
its election, may deliver the Assets to a bank or trust company doing business
in the State of New York to be held and disposed of pursuant to the provisions
of this Agreement, or to Authorized Persons, or may
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continue to hold the Assets until Instructions are provided to the Bank. The
obligations of the parties hereto regarding indemnities shall survive the
termination of this Agreement.
(j) RELEASES. The name "The Galaxy Fund" and "Trustees of the Galaxy
Fund" refer respectively to the Trust created and the Trustee, as trustees but
not individually or personally, acting from time to time under a Declaration of
Trust dated March 31, 1986, which is hereby referred to and a copy of which is
on file at the Office of the State Secretary of the Commonwealth of
Massachusetts and at the principal Office of the Trust. The obligations of "The
Galaxy Fund" entered into in the name or on behalf thereof by any of the
Trustees, representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees, shareholders or
representatives of the Trust personally, but bind only the Trust Property, and
all persons dealing with any class of shares of the Trust must look solely to
the Trust Property belonging to such class for the enforcement of any claims
against the Trust.
CUSTOMER
By: /s/ Xxxx X. X'Xxxxx
----------------------------------
Title President
THE CHASE MANHATTAN BANK, N.A.
By: /s/ illegible
----------------------------------
Title
-00-
XXXXX XX Xxxxx Xxxxxx )
: ss.
COUNTY OF )
On this day of November, 1991 before me personally came Xxxx X.
X'Xxxxx, to me known, who being by me duly sworn, did depose and say that he/she
resides in East Greenwich R.I. at
illegible ;
that he/she is President of The Galaxy Fund , the entity described in and
which executed the foregoing instrument; that he/she knows the seal of said
entity, that the seal affixed to said instrument is such seal, that it was so
affixed by order of said entity, and that he/she signed his/her name thereto by
like order.
/s/ Xxxx X. X'Xxxxx
--------------------------------
Sworn to before me this 19th
day of Nov., 1991.
/s/ illegible
-----------------------
Notary
-00-
XXXXX XX XXX XXXX )
: ss.
COUNTY OF NEW YORK )
On this 14th day of November, 1991, before me personally came
Xxxxxxxx X. Xxxxx, to me known, who being by me duly sworn, did depose and
say that he/she resides in Xxxxxxxx, New York at 00 Xxxxxxxx Xxxx; that
he/she is a Vice President of THE CHASE MANHATTAN BANK, (National
Association), the corporation described in and which executed the foregoing
instrument; that he/she knows the seal of said corporation, that the seal
affixed to said instrument is such corporate seal, that it was so affixed by
order of the Board of Directors of said corporation, and that he/she signed
his/her name thereto by like order.
----------------------------------
Sworn to before me this 14th
day of November, 1991.
/s/ Xxxxxxx Xxxxx
----------------------------
Notary
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Mutual Fund Rider to Global Custody Agreement
Between The Chase Manhattan Bank, N.A. and
The Galaxy Fund, effective
November 1, 1991
Customer represents that the Assets being placed in the Bank's custody are
subject to the Investment Company Act of 1940 (the "Act"), as the same may be
amended from time to time.
Except to the extent that the Bank has specifically agreed to comply with a
condition of a rule, regulation, interpretation promulgated by or under the
authority of the SEC or the Exemptive Order applicable to accounts of this
nature issued to the Bank (Investment Company Act of 1940, Release No. 12053,
November 20, 1981), as amended, or unless the Bank has otherwise specifically
agreed, the Customer shall be solely responsible to assure that the maintenance
of Assets under this Agreement complies with such rules, regulations,
interpretations or exemptive order promulgated by or under the authority of the
Securities Exchange Commission.
The following modifications are made to the Agreement:
Section 3. SUBCUSTODIANS AND SECURITIES DEPOSITORIES.
Add the following language to the end of Section 3:
The terms Subcustodian and securities depositories as used in this Agreement
shall mean a branch of a qualified U.S. bank, an eligible foreign custodian or
an eligible foreign securities depository, which are further defined as follows:
(a) "qualified U.S. Bank" shall mean a qualified U.S. bank as defined in Rule
17f-5(c)(3) under the Investment Company Act of 1940;
(b) "eligible foreign custodian" 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 that has shareholders' equity in excess of $200 million in
U.S. currency (or a foreign currency equivalent thereof), (ii) a majority owned
direct or indirect subsidiary of a qualified U.S. bank or bank holding company
that is incorporated or organized under the laws of a country other than the
United States and that has shareholders' equity in excess of $100 million in
U.S. currency (or a foreign currency equivalent thereof), (iii) a banking
institution or trust company incorporated or organized under the laws of a
country other than the United States or a majority owned direct or indirect
subsidiary of a qualified U.S.
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bank or bank holding company that is incorporated or organized under the laws of
a country other than the United States which has such other qualifications as
shall be specified in Instructions and approved by the Bank; or (iv) any other
entity that shall have been so qualified by exemptive order, rule or other
appropriate action of the SEC; and
(c) "eligible foreign securities depository" shall mean a securities depository
or clearing agency, incorporated or organized under the laws of a country other
than the United States, which operates (i) the central system for handling
securities or equivalent book-entries in that country, (ii) a transnational
system for the central handling of securities or equivalent book-entries, or
(iii) any entity that shall have been so qualified by exemptive order, rule or
other appropriate action of the SEC.
The Customer represents that its Board of Directors has approved each of
the Subcustodians listed in Schedule A to this Agreement and the terms of the
standard form of subcustody agreement between the Bank and its Subcustodians and
further represents that its Board has determined that the use of each
Subcustodian and the terms of the standard form of subcustody agreement are
consistent with the best interests of the Customer and its shareholders. The
Bank will supply the Customer with any amendment to Schedule A for approval.
The Customer has supplied or will supply the Bank with certified copies of its
Board of Directors resolution(s) with respect to the foregoing prior to placing
Assets with any Subcustodian so approved.
Section 11. INSTRUCTIONS.
Add the following language to the end of Section 11:
Deposit Account Payments and Custody Account Transactions made pursuant to
Section 5 and 6 of this Agreement may be made only for the purposes listed
below. Instructions must specify the purpose for which any transaction is
to be made and Customer shall be solely responsible to assure that
Instructions are in accord with any limitations or restrictions applicable
to the Customer by law or as may be set forth in its prospectus.
(a) In connection with the purchase or sale of Securities at prices as
confirmed by Instructions;
(b) When Securities are called, redeemed or retired, or otherwise become
payable;
(c) In exchange for or upon conversion into other securities alone or
other securities and cash pursuant to
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any plan of merger, consolidation, reorganization, recapitalization or
readjustment;
(d) Upon conversion of Securities pursuant to their terms into other
securities;
(e) Upon exercise of subscription, purchase or other similar rights
represented by Securities;
(f) For the payment of interest, taxes, management or supervisory fees,
distributions or operating expenses on behalf of the Customer;
(g) In connection with any borrowings by the Customer requiring a pledge
of Securities, but only against receipt of amounts borrowed;
(h) In connection with any loans, but only against receipt of adequate
collateral as specified in Instructions which shall reflect any
restrictions applicable to the Customer;
(i) For the purpose of redeeming shares of the capital stock of the
Customer and the delivery to, or the crediting to the account of, the Bank,
its Subcustodian or the Customer's transfer agent, such shares to be
purchased or redeemed;
(j) For the purpose of redeeming in kind shares of the Customer against
delivery to the Bank, its Subcustodian or the Customer's transfer agent of
such shares to be so redeemed;
(k) For delivery in accordance with the provisions of any agreement among
the Customer, the Bank and a broker-dealer registered under the Securities
Exchange Act of 1934 (the "Exchange Act") and a member of The National
Association of Securities Dealers, Inc. ("NASD"), relating to compliance
with the rules of The Options Clearing Corporation and of any registered
national securities exchange, or of any similar organization or
organizations, regarding escrow or other arrangements in connection with
transactions by the Customer.
(l) For release of Securities to designated brokers under covered call
options, provided, however, that such Securities shall be released only
upon payment to the Bank of monies for the premium due and a receipt for
the Securities which are to be held in escrow. Upon exercise of the
option, or at expiration, the Bank will receive from brokers the Securities
previously deposited. The Bank will act strictly in accordance with
Instructions in the delivery
-20-
of Securities to be held in escrow and will have no responsibility or
liability for any such Securities which are not returned promptly when due
other than to make proper request for such return;
(m) For spot or forward foreign exchange transactions to facilitate
security trading, receipt of income from Securities or related
transactions;
(n) For other proper purposes as may be specified in Instructions issued
by an officer of the Customer which shall include a statement of the
purpose for which the delivery or payment is to be made, the amount of the
payment or specific Securities to be delivered, the name of the person or
persons to whom delivery or payment is to be made, and a certification that
the purpose is a proper purpose under the instruments governing the
Customer; and
(o) Upon the termination of this Agreement as set forth in Section 14(i).
Section 12. STANDARD OF CARE; LIABILITIES.
Add the following subsection (c) to Section 12:
(c) The Bank hereby warrants to the Customer that in its opinion, after
due inquiry, the established procedures to be followed by each of its
branches, each branch of a qualified U.S. bank, each eligible foreign
custodian and each eligible foreign securities depository holding the
Customer's Securities pursuant to this Agreement afford protection for such
Securities at least equal to that afforded by the Bank's established
procedures with respect to similar securities held by the Bank and its
securities depositories in New York.
Section 14. ACCESS TO RECORDS.
Add the following language to the end of Section 14(c):
Upon reasonable request from the Customer, the Bank shall furnish the
Customer such reports (or portions thereof) of the Bank's system of
internal accounting controls applicable to the Bank's duties under this
Agreement. The Bank shall endeavor to obtain and furnish the Customer with
such similar reports as it may reasonably request with respect to each
Subcustodian and securities depository holding the Customer's assets.
-21-
JOINDER
440 Financial Group of Worcester, Inc. hereby joins in the foregoing Global
Custody Agreement between The Galaxy Fund and The Chase Manhattan Bank, N.A.
effective as of November 1, 1991 for the sole purpose of and in connection with
its obligations contained in Section 13 thereof.
440 FINANCIAL GROUP OF WORCESTER, INC.
By: /s/ illegible
----------------------------------
Title Vice President
----------------------------------
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