AMENDMENT TO THE CUSTODIAN AGREEMENT
THIS AMENDMENT, dated as of June 30, 2001, between U.S. GLOBAL ACCOLADE
FUNDS, a Massachusetts Business Trust with one or more series of shares (the
"Trust"), and an open-end management investment company registered with the
Securities and Exchange Commission ("SEC") under the Investment Company Act of
1940, as amended (the "1940 Act"), on behalf of each of the portfolios listed on
Appendix A hereto as the same may be amended from time to time (each a "Fund"
and collectively the "Funds"), and BROWN BROTHERS HARRIMAN & CO., a limited
partnership formed under the laws of the State of New York (BBH&CO. or the
CUSTODIAN), amends the Custodian Agreement by and between the parties dated as
of November 1, 1997 (the "Custodian Agreement").
W I T N E S S E T H:
WHEREAS, the Fund has employed BBH&Co. to act as custodian for the Fund and
to provide related services, all as provided in the Custodian Agreement;
WHEREAS, the SEC has promulgated Rules 17f-5 and 17f-7 under the 1940 Act
which establish rules regarding the Fund's Investments held outside the United
States at Subcustodians or through Securities Depositories; and
WHEREAS, BBH&CO is willing to provide services in connection with such
Rules in accordance with the terms of this Amendment to the Custodian Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Trust and BBH&Co. hereby agree, as follows:
1
1. That Section 7 of the Custodian Agreement shall be amended and restated in
its entirety as follows:
"7. Subcustodians and Securities Depositories. The Trust hereby authorizes
the Custodian to utilize Securities Depositories to act on behalf of a Fund
and to appoint from time to time and to utilize Subcustodians. With respect
to securities and funds held by a Subcustodian, either directly or
indirectly (including by a Securities Depository or clearing agency),
notwithstanding any provisions of this Amendment to the Custodian Agreement
to the contrary, payment for securities purchased and delivery of
securities sold may be made prior to receipt of securities or payment,
respectively, and securities or payment may be received in a form, in
accordance with (a) governmental regulations, (b) rules of Securities
Depositories and clearing agencies, (c) generally accepted trade practice
in the applicable local market, (d) the terms and characteristics of the
particular Investment, or (e) the terms of Proper Instructions.
7.1 Domestic Subcustodians and Securities Depositories. The
Custodian may deposit and/or maintain, either directly or through one
or more agents appointed by the Custodian, Investments of a Fund in
any Securities Depository in the United States, including The
Depository Trust Company, provided such depository meets applicable
requirements of the Federal Reserve Bank or of the SEC. The Custodian
may, at any time and from time to time, appoint any bank as defined in
Section 2(a)(5) of the 1940 Act meeting the requirements of a
custodian under Section 17(f) of the 1940 Act and the rules and
regulations thereunder, to act on behalf of a Fund as a Subcustodian
for purposes of holding Investments of a Fund in the United States.
7.2 Foreign Subcustodians and Securities Depositories. Unless
instructed otherwise by the Trust, the Custodian may deposit and/or
maintain Foreign Assets of the Fund in any non-U.S. Securities
Depository provided that the Custodian has determined that such
Securities Depository meets the requirements of an "eligible
securities depository" under Rule 17f-7 promulgated under the 1940
Act, or any successor rule or regulation ("Rule 17f-7") or which
2
by order of the SEC is exempted therefrom. Prior to the time that
securities are placed with such depository, the Custodian shall have
prepared an analysis of the custody risks associated with maintaining
assets with the Securities Depository and shall have established a
system to monitor such risks on a continuing basis in accordance with
subsection 7.2.3 of this Section. Additionally, the Custodian may, in
accordance with the terms of the 17f-5 Delegation Schedule to this
Agreement together with any amendments thereto at any time and from
time to time, appoint (a) any bank, trust company or other entity
meeting the requirements of an "eligible foreign custodian" under Rule
17f-5 or which by order of the SEC is exempted therefrom, or (b) any
bank as defined in Section 2(a)(5) of the 1940 Act meeting the
requirements of a custodian under Section 17(f) of the 1940 Act and
the rules and regulations thereunder, to act on behalf of a Fund as a
Subcustodian for purposes of holding Investments of the Fund outside
the United States. Such appointment of foreign Subcustodians shall be
subject to approval of the Fund in accordance with Subsections 7.2.1
and 7.2.2 hereof, and use of non-U.S. Securities Depositories shall be
subject to the terms of Subsections 7.2.3 hereof. A Proper Instruction
to open an account in a given country shall comprise authorization of
the Custodian to hold assets in such country in accordance with the
terms of this Agreement. The Custodian shall not be required to make
independent inquiry as to the authorization of the Fund to invest in
such country.
7.2.1. Board Approval of Foreign Subcustodians. Unless and except
to the extent that the Board has delegated to, and the Custodian has
accepted delegation of, review of certain matters concerning the
appointment of Subcustodians pursuant to Subsection 7.2.2, the
Custodian shall, prior to the appointment of any Subcustodian for
purposes of holding Foreign Assets of the Fund, obtain written
confirmation of the approval of the Board of Trustees of the Trust
with respect to (a) the identity of a Subcustodian, and (b) the
subcustodian agreement which shall govern such appointment, such
approval to be signed by an authorized person.
7.2.2. Delegation of Board Review of Subcustodians. The
Custodian's duties and obligations with respect to the review of
Subcustodians and subcustodian contracts will be performed in
accordance with the terms of the attached 17f-5 Delegation Schedule to
this Agreement.
7.2.3. Monitoring and Risk Assessment of Non-U.S. Securities
Depositories. Prior to the placement of any assets of a Fund with a
non-U.S. Securities Depository, the Custodian: (a) shall determine
that the non-U.S. Securities Depository is an Eligible Securities
Depository; (b) shall provide to the Fund or its Investment Adviser an
assessment of the custody risks associated with maintaining assets
within such Securities Depository in accordance with Rule
17f-7(a)(1)(i)(A); and (c) shall have established a system to monitor
the custody risks associated with maintaining assets with such
Securities Depository on a continuing basis and to promptly notify the
Fund or its Investment Adviser of any material changes in such risk in
accordance with rule 17f-7(a)(1)(i)(B) or the qualification of such
Securities Depository as an Eligible Securities Depository. In
performing its duties under this subsection, the Custodian shall
exercise reasonable care, prudence and diligence and consistent with
the exercise of reasonable care, prudence and diligence may reasonably
rely on such reasonable sources of information as may be available
including but not limited
3
to: (i) published ratings; (ii) information supplied by a Subcustodian
that is a participant in such Securities Depository; (iii) industry
surveys or publications; (iv) information supplied by the depository
itself, by its auditors (internal or external) or by the relevant
Foreign Financial Regulatory Authority. It is acknowledged that
information procured through some or all of these sources may not be
independently verifiable by the Custodian and that direct access to
Securities Depositories is limited under most circumstances.
Accordingly, the Custodian shall not be responsible for errors or
omissions in its duties hereunder provided that it has performed its
monitoring and assessment duties with reasonable care, prudence and
diligence. The risk assessment shall be provided to the Fund or its
Investment Adviser by such means as the parties shall agree. Advice of
material change in such assessment may be provided by the Custodian in
the manner established as customary between the Trust and the
Custodian for transmission of material market information.
7.3 Responsibility for Subcustodians. The Fund shall be
responsible for informing the Custodian sufficiently in advance of a
proposed Investment which is to be held in a country in which no
Subcustodian is authorized to act in order that the Custodian shall,
if it deems appropriate to do so, have sufficient time to establish a
subcustodial arrangement in accordance herewith. In the event,
however, the Custodian is unable to establish such arrangements prior
to the time such Investment is to be acquired, the Custodian shall so
notify the Trust and, upon receipt of Proper Instructions, appoint any
person designated by the Trust in such instruction to hold such
security or other asset. In the absence of such Proper Instructions,
the security or Foreign Asset may be left at its settlement location
or moved to another agent for the purpose of safekeeping, provided
that the Custodian shall be responsible to the Fund for the actions of
such agent if and only to the extent the Custodian shall have
recovered from such agent for any damages caused the Fund by such
agent.
In the event the Custodian receives a claim from a Subcustodian under the
indemnification provisions of any subcustodian agreement, the Custodian shall
promptly give written notice to the Trust of such claim. No more than thirty
(30) calendar days after written notice to the Trust of the Custodian's
intention to make such payment, the Fund will reimburse the Custodian the amount
of such payment except in respect of any negligence or misconduct of the
Custodian or any Subcustodian.
The Custodian may at any time or times in its discretion appoint (and may
at any time remove) any other bank or trust company as its agent (an "Agent") to
carry out such of the provisions of this Agreement as the Custodian may from
time to time direct, provided, however,
4
that the appointment of such Agent shall not relieve the Custodian of any of its
responsibilities under this Agreement. The Custodian shall be responsible for
the actions of any Agent other than a Subcustodian as if it performed such
action itself.
Except as provided in the last sentence of this Paragraph, the Custodian
shall be liable to the Fund for any loss or damage to the Fund caused by or
resulting from the acts or omissions of any Subcustodian to the extent that such
acts or omissions would be deemed to be negligence, gross negligence or willful
misconduct in accordance with the terms of the relevant subcustodian agreement
under the laws, circumstances and practices prevailing in the place where the
act or omission occurred. The liability of the Custodian in respect of the
countries and Subcustodians listed on the Global Custody Network listing and
such countries and Subcustodians which the Custodian may from time to time
designate, shall be subject to the additional condition that the Custodian
actually recovers such loss or damage from the Subcustodian."
2. In addition, that the definitions under Section 2 of the Custodian Agreement
shall be amended with the additional modification of the following:
"FOREIGN FINANCIAL REGULATORY AUTHORITY shall have the meaning given by
Section 2(a)(50) of the 1940 Act.
GLOBAL CUSTODY NETWORK LISTING shall mean the Countries and Subcustodians
approved for Investments in non-U.S. Markets.
SECURITIES DEPOSITORY shall mean a central or book entry system or agency
established under Applicable Law for purposes of recording the ownership
and/or entitlement to investment securities for a given market that, if a
non-U.S. Securities Depository, meets the definition of Rule 17f-7 under
the 1940 Act, and (ii) if a domestic Securities Depository, meets the
definition of Rules 17f-4 and 17f-7 under the 1940 Act.
5
ELIGIBLE FOREIGN CUSTODIAN means an entity that is incorporated or
organized under the laws of a country other than the United States and that
is a Qualified Foreign Bank (as defined herein) or a majority-owned direct
or indirect subsidiary of a U.S. Bank (as defined herein) or bank-holding
company.
FOREIGN ASSETS means any Investments (including foreign currencies) for
which the primary market is outside the United States, and any cash and
cash equivalents that are reasonable necessary to effect the Fund's
transactions in those Investments.
FOREIGN CUSTODY MANAGER means a Fund's board of trustees or any person
serving as the board's delegate under paragraphs (b) or (d) of Rule 17f-5.
QUALIFIED FOREIGN BANK means 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 the country's government or an agency
of the country's government.
U.S. BANK means an entity that is:
(i) A banking institution organized under the laws of the United States;
(ii) A member bank of the Federal Reserve System;
(iii) Any other banking institution or trust company organized under the
laws of any state or of the United States, whether incorporated or
not, doing business under the laws of any state or of the United
States, a substantial portion of the business of which consists of
receiving deposits or exercising fiduciary powers similar to those
permitted to national banks under the authority of the Comptroller of
the Currency, and which is supervised and examined by state or federal
authority having supervision over banks, and which is not operated for
the purpose of evading the provisions of Rule 17f-5;
(iv) A receiver, conservator, or other liquidating agent of any institution
or firm included in paragraphs (i), (ii), or (iii) above; or
(v) A banking institution in accordance with Section 17(f) of the 1940
Act."
3. All defined terms used herein shall have the meaning given in the Custodian
Agreement as amended by this Amendment.
4. Other than as amended and appended hereby, all terms and provisions of the
Custodian Agreement are hereby ratified and affirmed as of the date hereof and
are hereby extended to give effect to the terms hereof.
6
5. By signing below, the Trust ratifies and affirms that all of its
representations and warranties set forth in the Custodian Agreement each remain
true and correct as of the date hereof.
6. Upon receipt by the Custodian of a fully executed copy of this Amendment,
this Amendment shall be deemed to be executed as an instrument under seal and
governed by such laws as provided in Section 14.6 of the Custodian Agreement.
This Amendment may be executed in original counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
Amendment.
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be
duly executed as of the date first above written.
U.S. GLOBAL ACCOLADE FUNDS
By:/s/ Frank E. Holmes
-----------------------
Name: Frank E. Holmes
Title: Chief Executive Officer
BROWN BROTHERS HARRIMAN & CO.
By: /s/ Susan C. Livingston
-----------------------
Name: Susan C. Livingston
Title: Partner
7
APPENDIX A
List of Funds
8
17f-5 DELEGATION SCHEDULE
By its execution of this Delegation Schedule as of June 30, 2001, U.S.
GLOBAL ACCOLADE FUNDS (the "Trust"), a Massachusetts Business Trust with one or
more series of shares, and an open-end management investment company registered
with the Securities and Exchange Commission ("SEC") under the Investment Company
Act of 1940 as amended (the "1940 Act"), on behalf of each of the portfolios
listed on Appendix A hereto as the same may be amended from time to time (each a
"Fund" and collectively the "Funds"), acting through its Board of Trustees or
its duly authorized representative, hereby appoints BROWN BROTHERS HARRIMAN &
CO., a New York limited partnership with an office in Boston, Massachusetts (the
"Delegate") as its delegate to perform certain functions with respect to the
custody of the Funds' Assets.
WHEREAS, the Trust has appointed the Delegate as Custodian of the Trust's
Property in a Custodian Agreement dated as of November 1, 1997 by and between
the Delegate and the Trust (as amended, the "Custodian Agreement");
WHEREAS, the Board of Trustees of the Trust (the "Board") wishes to
implement arrangements under Rule 17f-5 of the 1940 Act for the safekeeping of
Foreign Assets;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Trust and the Delegate agree as follows. Capitalized terms
which are not defined in Section 12 of this Delegation Schedule shall have the
meanings ascribed to them in the Custodian Agreement.
1. Maintenance of Funds' Assets Abroad. Delegate may place and maintain the
Funds' Foreign Assets in the countries listed on the Global Custody Network
Listing hereto only pursuant to Proper Instructions under the terms of the
Custodian Agreement and in accordance with this Delegation Schedule. The Global
Custody Network Listing may be amended upon the mutual written agreement of the
parties. With respect to amendments to the Global Custody Network Listing, the
Trust acknowledges that, depending on the conditions in the particular country,
advance notice may be required before the Delegate is able to perform its duties
9
hereunder in or with respect to such country (such advance notice to be
reasonable in light of the specific facts and circumstances attendant to
performance of duties in such country).
2. Appointment. Pursuant to the provisions of Rule 17f-5, the Trust hereby
appoints the Delegate as "Foreign Custody Manager" as defined under Rule 17f-5
and the Delegate hereby accepts such appointment and agrees to perform, only
those duties set forth in this Delegation Schedule concerning the safekeeping of
each Fund's Foreign Assets in each of the countries set forth in the Global
Custody Network Listing, as amended from time to time, in accordance with
Section 1of this Delegation Schedule. The Delegate is hereby authorized to take
such actions as are reasonably required to discharge its duties under this
Delegation Schedule, including, without limitation, to cause a Fund's Foreign
Assets to be placed with a particular Eligible Foreign Custodian in accordance
herewith.
3. Selection of Eligible Foreign Custodian and Contract Administration. The
Delegate shall perform the following duties with respect to the selection of
Eligible Foreign Custodians and administration of certain contracts governing
the Trust's foreign custodial arrangements:
(a) Selection of Eligible Foreign Custodians. Subject to the
provisions of this Delegation Schedule and the requirements of Rule 17f-5,
the Delegate shall place and maintain a Fund's Foreign Assets with an
Eligible Foreign Custodian in accordance with the Global Custody Network
Listing PROVIDED that the Delegate shall have determined that the Fund's
Assets will be subject to reasonable care based on the standards applicable
to custodians in the relevant market after considering all factors relevant
to the safekeeping of such assets, including, without limitation:
(i) The Eligible Foreign Custodian's practices, procedures, and
internal controls, including, but not limited to, the physical
protections available for certificated securities (if applicable), the
controls and procedures for dealing with any Securities Depository,
the method of keeping custodial records, and the security and data
protection practices;
(ii) Whether the Eligible Foreign Custodian has the requisite
financial strength to provide reasonable care for the Fund's Foreign
Assets including, but not limited to, the adequacy of the Eligible
Foreign Custodian's capital with regard to protecting a Fund's assets
against the risk of loss due to such Eligible Foreign
10
Custodian's insolvency;
(iii) The Eligible Foreign Custodian's general reputation and
standing; and
(iv) Whether the Fund will have jurisdiction over and be able to
enforce judgments against the Eligible Foreign Custodian, such as by
virtue of the existence of any offices of such Eligible Foreign
Custodian in the United States or such Eligible Foreign Custodian's
consent to services of process in the United States, appointment of an
agent for service of process in the United States or consent to
jurisdiction in the United States.
The Delegate shall be required to make the foregoing determinations to the best
of its knowledge and belief based only on information reasonably available to it
in accordance with the standard of care set forth in Section 8 of this
Delegation Schedule.
(b) Contract Administration. For each Eligible Foreign Custodian
selected by the Delegate pursuant to this Section 3, the Delegate shall
enter into a written contract governing each Fund's foreign custody
arrangements. The Delegate shall determine that each such written contract
with an Eligible Foreign Custodian provides reasonable care for the Fund's
Foreign Assets based on the standard of care specified in subsection (a) of
this Section 3. Each written contract with an Eligible Foreign Custodian
shall, except as set forth in the last paragraph of this subsection (b),
include provisions that provide:
(i) For indemnification or insurance arrangements (or any
combination of the foregoing) such that the Trust will be adequately
protected against the risk of loss of a Fund's Foreign Assets held in
accordance with such contract;
(ii) That each Fund's Foreign Assets will not be subject to any
right, charge, security interest, lien or claim of any kind in favor
of the Eligible Foreign Custodian or its creditors except, a claim of
payment for their safe custody or administration or, in the case of
cash deposits, liens or rights in favor of creditors of such Eligible
Foreign Custodian arising under bankruptcy, insolvency or similar
laws;
(iii) That beneficial ownership of each Fund's Foreign Assets
will be freely transferable without the payment of money or value
other than for safe custody or administration;
11
(iv) That adequate records will be maintained by the Eligible
Foreign Custodian identifying each Fund's Foreign Assets as belonging
to the Fund or as being held by a third party for the benefit of the
Fund;
(v) That the Trust's independent public accountants will be given
access to those records described in (iv) above or confirmation of the
contents of those records; and
(vi) That the Trust will receive sufficient and timely periodic
reports with respect to the safekeeping of each Fund's Foreign Assets,
including, but not limited to, notification of any transfer to or from
the Fund's account or a third party account containing assets held for
the benefit of a Fund.
Such contract may contain, in lieu of any or all of the provisions
specified in this Section 3(b), such other provisions that the Delegate
determines will provide, in their entirety, the same or a greater level of
care and protection for each Fund's Foreign Assets as the specified
provisions, in their entirety.
(c) LIMITATION TO DELEGATED SELECTION. Notwithstanding anything in
this Delegation Schedule to the contrary, the duties under this Section 3
shall apply only to Eligible Foreign Custodians selected by the Delegate
and shall not apply to Securities Depositories or to any Eligible Foreign
Custodian that the Delegate is directed to use pursuant to Section 7 of
this Delegation Schedule. Nothing in this Delegation Schedule shall require
the Delegate to consider Country Risk as part of its duties under this
Section 3.
4. MONITORING. In addition to determining the appropriateness of placing a
Fund's Foreign Assets in accordance with Section 3(a) of this Delegation
Schedule and monitoring the continuing appropriateness of the contract governing
a Fund's foreign custody arrangements in accordance with Section 3(b) of this
Delegation Schedule, the Delegate shall establish and maintain a system to
continuously monitor: (i) the appropriateness of maintaining Foreign Assets with
each Eligible Foreign Custodian selected by the Delegate pursuant to Section 3
of this Delegation Schedule; (ii) each such Eligible Foreign Custodian's
continuing compliance with the standards set forth in Rule 17f-5 and this
Delegation Schedule; and (iii) material changes to the Trust's foreign custody
arrangements, as defined in Section 6 below (the "Monitoring System").
12
5. REPORTING. The Delegate shall provide to the Board and the Trust's Investment
Adviser written reports specifying placement of a Fund's Foreign Assets with
each Eligible Foreign Custodian selected by the Delegate pursuant to Section 3
of this Delegation Schedule; and of any material changes in a Fund's foreign
custody arrangements effected by the Delegate pursuant to Section 3, including,
but not limited to: (i) any withdrawal of a Fund's Foreign Assets under Section
6 of this Delegation Schedule, (ii) any event that may adversely and materially
affect an Eligible Foreign Custodian's financial or operational strength, (iii)
a change in control of an Eligible Foreign Custodian, (iv) the failure of an
Eligible Foreign Custodian to comply with the standards in Rule 17f-5 or its
contract governing the Trust's foreign custody arrangements; and (v) a material
change in any information provided to the Board regarding the Delegate's
expertise in foreign custody issues and risks, the Delegate's use of third-party
experts to perform its foreign custody responsibilities, the Board's ability to
monitor the Delegate's performance, the Delegate's financial strength or its
ability to indemnify the Trust; the Delegate's inability to perform its duties
in accordance with any standard of care under this Delegation Schedule or any
notice with respect to information regarding prevailing Country Risk provided to
the Board and/or the Investment Adviser under Section 17 of this Delegation
Schedule. Such reports shall be provided to the Board at its regularly scheduled
meeting next following the event being reported, or more frequently as requested
by the Board, provided that, if the Delegate determines that any matter should
be reported sooner, it shall promptly, following the occurrence of the event,
direct such report to the Fund's President for forwarding to the Board. The
Delegate will prepare such reports with respect to any Eligible Foreign
Custodian that the Delegate has been instructed to use pursuant to Section 7 of
this Delegation Schedule only to the extent specifically agreed to with respect
to the particular situation. Nothing in this Section shall limit the Delegate's
duty to report the location of a Fund's Foreign Assets as part of its normal
reporting under the Custodian Agreement whether or not they have been placed by
the Delegate pursuant to Section 3 of this Delegation Schedule.
At least annually, the Delegate shall provide to the Trust a written
statement as may be reasonably required to document its compliance with the
terms of this Delegation Schedule as well as information regarding the following
factors: (i) the Delegate's expertise in foreign custody issues and risks; (ii)
the Delegate's use of third-party experts to perform its foreign custody
responsibilities; (iii) the Board's ability to monitor the Delegate's
performance; and (iv)
13
the Delegate's financial strength and its ability to indemnify the Trust if
necessary.
6. WITHDRAWAL OF FUND'S ASSETS. If the Delegate determines that an arrangement
with a specific Eligible Foreign Custodian selected by the Delegate under
Section 3 of this Delegation Schedule no longer meets the requirements of said
Section, the Delegate shall promptly notify the Trust of such fact and shall
withdraw the Foreign Assets from the non-complying arrangement and make
arrangements for the custody of such Foreign Assets with a successor Eligible
Foreign Custodian in accordance with the terms of this Delegation Schedule as
soon as reasonably practicable; PROVIDED, however, that if in the reasonable
judgment of the Delegate, such withdrawal would require liquidation of any of a
Fund's Foreign Assets or would materially impair the liquidity, value or other
investment characteristics of a Fund's Foreign Assets, it shall be the duty of
the Delegate to provide information regarding the particular circumstances and
to act only in accordance with Proper Instructions with respect to such
liquidation or other withdrawal.
7. DIRECTION AS TO ELIGIBLE FOREIGN CUSTODIAN. Notwithstanding this Delegation
Schedule, the Trust acting through its Board, its Investment Adviser, or its
authorized representative, may direct the Delegate to place and maintain the
Fund's Foreign Assets with a particular Eligible Foreign Custodian, including
without limitation with respect to investment in countries as to which the
Delegate will not provide delegation services. In such event, the Delegate shall
be entitled to rely on any such instruction as a Proper Instruction under the
terms of the Custodian Agreement and shall have no duties under this Delegation
Schedule with respect to such arrangement save those included under Section 16
of this Delegation Schedule and that it may undertake specifically in writing
with respect to each particular instance.
8. STANDARD OF CARE. In carrying out its duties under this Delegation Schedule,
the Delegate agrees to exercise reasonable care, prudence and diligence such as
a person having responsibility for safekeeping of a Fund's Foreign Assets would
exercise. The Delegate agrees to promptly notify the Board and the Trust's
Investment Adviser if, at any time, the Delegate believes it cannot perform its
duties hereunder in accordance with the foregoing standard of care.
9. REPRESENTATIONS. The Delegate hereby represents and warrants that it is a
U.S.
14
Bank and that this Delegation Schedule has been duly authorized, executed and
delivered by the Delegate and is a legal, valid and binding agreement of the
Delegate and that the Delegate has established and agrees to maintain during the
term of this Delegation Schedule, the Monitoring System.
The Trust hereby represents and warrants that this Delegation Schedule has
been duly authorized, executed and delivered by the Trust and is a legal, valid
and binding agreement of the Trust.
10. EFFECTIVENESS; TERMINATION. This Delegation Schedule shall be effective as
of the date on which this Delegation Schedule shall have been accepted by the
Delegate, as indicated by the date set forth below the Delegate's signature.
This Delegation Schedule may be terminated at any time, without penalty, by
written notice from the terminating party to the non-terminating party. Such
termination shall be effective on the 90th calendar day after the date of
delivery or mailing of such notice (or such other period as may be agreed
between the parties). The foregoing to the contrary notwithstanding, this
Delegation Schedule shall be deemed to have been terminated concurrently with
the termination of the Custodian Agreement.
11. NOTICES. Notices and other communications under this Delegation Schedule are
to be made in accordance with the arrangements designated for such purpose under
the Custodian Agreement unless otherwise indicated in a writing referencing this
Delegation Schedule and executed by both parties.
12. DEFINITIONS. Capitalized terms in this Delegation Schedule have the
following meanings:
a. COUNTRY RISKS - means the systemic risks arising from holding assets in
a particular country, including, those arising from a country's financial
infrastructure, prevailing custody and settlement practices, expropriation,
nationalization or other governmental actions, and laws applicable to the
safekeeping and recovery of assets held in custody in such country.
15
b. ELIGIBLE FOREIGN CUSTODIAN - shall have the meaning set forth in Rule
17f-5(a)(1) of the 1940 Act and shall also include a U.S. Bank.
c. FOREIGN ASSETS - shall have the meaning set forth in Rule 17f-5(a)(2) of
the 1940 Act.
d. PROPER INSTRUCTIONS - shall have the meaning set forth in the Custodian
Agreement.
e. SECURITIES DEPOSITORY - shall have the meaning set forth in Rule
17f-7(b)(1) of the 1940 Act.
f. U.S. BANK - shall have the meaning set forth in Rule 17f-5(a)(7) of the
1940 Act and Section 17(f) of the 1940 Act.
13. GOVERNING LAW AND JURISDICTION. This Delegation Schedule shall be construed
in accordance with the federal laws of the United States and to the extent not
governed thereby, the laws of the Commonwealth of Massachusetts. The parties
hereby submit to the exclusive jurisdiction of the Federal courts sitting in the
State of New York or the Commonwealth of Massachusetts or the state courts of
New York or Massachusetts.
14. FEES. Delegate shall perform its functions under this Delegation Schedule
for the compensation determined under the Custodian Agreement.
15. INTEGRATION. This Delegation Schedule sets forth all of the Delegate's
duties with respect to the selection and monitoring of Eligible Foreign
Custodians, the administration of contracts with Eligible Foreign Custodians,
the withdrawal of assets from Eligible Foreign Custodians and the issuance of
reports in connection with such duties. This Delegation Schedule constitutes the
entire agreement between the Fund and Delegate with respect to the subject
matter hereof. Accordingly, this Delegation Schedule supercedes the Foreign
Custody Manager Delegation Agreement heretofore in effect. The terms of the
Custodian Agreement shall apply generally as to matters not expressly covered in
this Delegation Schedule, including dealings with the Eligible Foreign
Custodians in the course of discharge of the Delegate's obligations under the
16
Custodian Agreement. In the event of a conflict between the terms of this
Delegation Schedule and the Custodian Agreement, the terms of this Delegation
Schedule shall control with respect to the services covered herein.
16. PROVISION OF INFORMATION. The Delegate agrees to provide annually to the
Trust or a Fund's Investment Adviser, such information as is specified in
Appendix 1 hereto, as may be amended from time to time by the parties. With
respect to each Eligible Foreign Custodian employed by the Trust pursuant to
Section 7 herein, the Delegate agrees to provide the Trust or its Investment
Adviser, any information it possesses regarding Country Risk or the risks
associated with placing or maintaining Foreign Assets with the Eligible Foreign
Custodian. The Delegate shall be responsible to use reasonable care in the
gathering of such information but shall not be deemed to warranty the
completeness or specific accuracy of such information. The Delegate agrees to
promptly notify the Board or the Fund's Investment Adviser at any time that the
Delegate becomes aware of a material change to the information provided
hereunder or if the Delegate learns that any information previously provided is
incomplete or inaccurate.
17. LIMITATION OF LIABILITY; SATISFACTION OF CLAIMS. The Delegate shall be
responsible under this Delegation Schedule for any direct loss, claim, damage or
liability incurred or suffered by the Trust or its officers, directors,
employees or agents that results from the Delegate's failure to exercise any
standard of care set forth in this Delegation Schedule, or the Delegate's
willful misfeasance or bad faith in the performance of its duties under this
Delegation Schedule. The Delegate shall indemnify and hold the Trust harmless
from and against any and all direct claims, costs, expenses (including
attorney's fees), losses, damages, charges, payments and liabilities of any sort
or kind (excluding consequential, special or punitive damages) which may be
asserted against the Trust, or for which the Trust may be held liable in
connection with the Delegate's performance hereunder (a "Claim"), unless such
Claim resulted from bad faith or gross negligence by the Trust in performance of
its duties and obligations hereunder. Notwithstanding the foregoing, the
Delegate shall not be liable for any loss, claim, damage or liability arising as
a result of any acts of God, earthquakes, fires, flood, storms or other
disturbances of nature, strikes, riots, nationalization, expropriation, currency
restrictions or revaluations, investment or repatriation restrictions,
imposition of taxes or changes in applicable laws, acts of war, civil war or
terrorism, insurrection, the interruption, loss or malfunction of utilities,
transportation or
17
computers and computer facilities, the unavailability of energy sources and
other similar happenings or events that are not within Delegate's reasonable
control. Nothing in this Section 17 shall be deemed to preclude the Trust or
other party from pursuing any rights it may have in law and equity.
The Delegate agrees that claims made against each Fund respectively under
this Delegation Schedule shall be satisfied only from assets of such Fund, and
not from the assets of any separate Fund held hereunder; that any person
executing this Delegation Schedule has executed it on behalf of the Trust and
not individually, and that the obligations of the Trust arising out of this
Delegation Schedule are not binding upon such person or the Trust's shareholders
individually, but binding upon the Property and other assets of the Trust; that
no shareholders, trustees directors or officers of the Trust may be held
personally liable or responsible for any obligations of the Trust arising out of
this Delegation Schedule.
18. MOST FAVORED CLIENT. If at any time the Delegate shall be a party to an
agreement to serve as "Foreign Custody Manager" (as defined in Rule 17f-5(a)(2)
of the 1940 Act) to an investment company, that provides for either: (a) a
standard of care with respect to the selection of Eligible Foreign Custodians in
any jurisdiction higher than that set forth in Section 3 of this Delegation
Schedule or (b) a standard of care with respect to exercise of the Delegate's
duties other than that set forth in Section 8 of this Delegation Schedule, the
Delegate agrees to notify the Trust of this fact and to raise the applicable
standard of care hereunder to the standard specified in such other agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Delegation
Schedule to be duly executed as of the date first above written.
U.S. ACCOLADE FUNDS
By:/s/ Frank E. Holmes
------------------------
Name: Frank E. Holmes
Title: Chief Executive Officer
18
BROWN BROTHERS HARRIMAN & CO.
By: /s/ Susan C. Livingston
------------------------
Name: Susan C. Livingston
Title: Partner
19
FUNDS TRANSFER SERVICES SCHEDULE TO CUSTODIAN AGREEMENT
1. EXECUTION OF PAYMENT ORDERS. Brown Brothers Harriman & Co. (the Custodian)
is hereby instructed by U. S. GLOBAL ACCOLADE FUNDS (the Company) to
execute each payment order, whether denominated in United States dollars or
other applicable currencies, received by the Custodian in the Company's
name as sender and authorized and confirmed by an authorized person as
described in a Custodian Agreement dated as of November 1, 1997 by and
between the Custodian and the Company, as amended or restated from time
thereafter (the Agreement), provided that the Company has sufficient
available funds on deposit in a Principal Account as defined in the
Agreement and provided that the order (i) is received by the Custodian in
the manner specified in this Funds Transfer Services Schedule or any
amendment hereafter; (ii) complies with any written instructions and
restrictions of the Company as set forth in this Funds Transfer Services
Schedule or any amendment hereafter; (iii) is authorized by the Company or
is verified by the Custodian in compliance with a security procedure set
forth in Paragraph 2 below for verifying the authenticity of a funds
transfer communication sent to the Custodian in the name of the Company or
for the detection of errors set forth in any such communication; and (iv)
contains sufficient data to enable the Custodian to process such transfer.
2. SECURITY PROCEDURE. The Company hereby elects to use the procedure selected
below as its security procedure (the Security Procedure). The Security
Procedure will be used by the Custodian to verify the authenticity of a
payment order or a communication amending or canceling a payment order. The
Custodian will act on instructions received provided the instruction is
authenticated by the Security Procedure. The Company agrees and
acknowledges in connection with (i) the size, type and frequency of payment
orders normally issued or expected to be issued by the Company to the
Custodian, (ii) all of the security procedures offered to the Company by
the Custodian, and (iii) the usual security procedures used by customers
and receiving banks similarly situated, that authentication through the
Security Procedure shall be deemed commercially reasonable for the
authentication of all payment orders submitted to the Custodian. The
Company hereby elects (please choose one) the following Security Procedure
as described below:
[X] BIDS AND BIDS WORLDVIEW PAYMENT PRODUCTS. BIDS and BIDS Worldview
Payment Products, are on-line payment order authorization facilities
with built-in authentication procedures. The Custodian and the Company
shall each be responsible for maintaining the confidentiality of
passwords or other codes to be used by them in connection with BIDS.
The Custodian will act on instructions received through BIDS without
duty of further confirmation unless the Company notifies the Custodian
that its password is not secure.
[ ] SWIFT. The Custodian and the Company shall comply with SWIFT's
authentication procedures. The Custodian will act on instructions
received via SWIFT provided the instruction is authenticated by the
SWIFT system.
[ ] TESTED TELEX. The Custodian will accept payment orders sent by
tested telex, provided the test key matches the algorithmic key the
Custodian and Company have agreed to use.
[ ] COMPUTER TRANSMISSION. The Custodian is able to accept transmissions
sent from the Company's computer facilities to the Custodian's
computer facilities provided such
20
transmissions are encrypted and digitally certified or are otherwise
authenticated in a reasonable manner based on available technology.
Such procedures shall be established in an operating protocol between
the Custodian and the Company.
[X] TELEFAX INSTRUCTIONS. A payment order transmitted to the Custodian by
telefax transmission shall transmitted by the Company to a telephone
number specified from time to time by the Custodian for such purposes.
If it detects no discrepancies, the Custodian will then either:
1. If the telefax requests a repetitive payment order, the
Custodian may call the Company at its last known telephone
number, request to speak to the Company or Authorized
Person, and confirm the authorization and the details of the
payment order (a "Callback"); or
2. If the telefax requests a non-repetitive order, the
Custodian will perform a Callback.
All faxes must be accompanied by a fax cover sheet which indicates the
sender's name, company name, telephone number, fax number, number of
pages, and number of transactions or instructions attached.
[ ] TELEPHONIC. A telephonic payment order shall be called into the
Custodian at the telephone number designated from time to time by the
Custodian for that purpose. The caller shall identify herself/himself
as an Authorized Person. The Custodian shall obtain the payment order
data from the caller. The Custodian shall then:
1. If a telephonic repetitive payment order, the Custodian may
perform a Callback; or
2. If a telephonic non-repetitive payment order, the Custodian
will perform a Callback.
(sbm)[X] BRAIDS
(dl)
In the event the Company chooses a procedure which is not a Security
Procedure as described above, the Company agrees to be bound by any payment
order (whether or not authorized) issued in its name and accepted by the
Custodian in compliance with the procedure selected by the Company.
3. REJECTION OF PAYMENT ORDERS. The Custodian shall give the Company timely
notice of the Custodian's rejection of a payment order. Such notice may be given
in writing or orally by telephone, each of which is hereby deemed commercially
reasonable. In the event the Custodian fails to execute a properly executable
payment order and fails to give the Company notice of the Custodian's
non-execution, the Custodian shall be liable only for the Company's actual
damages and only to the extent that such damages are recoverable under UCC 4A
(as defined in Paragraph 7 below). Notwithstanding anything in this Funds
Transfer Services Schedule and the Agreement to the contrary, the Custodian
shall in no event be liable for any consequential or special damages under this
Funds Transfer Services Schedule, whether or not such damages relate to services
covered by UCC 4A, even if the Custodian has been advised of the possibility of
such damages. Whenever compensation in the form of interest is payable by the
Custodian to the Company pursuant to this Funds Transfer Services Schedule, such
compensation will consist of interest payable in accordance with UCC 4A.
21
4. CANCELLATION OF PAYMENT ORDERS. The Company may cancel a payment order but
the Custodian shall have no liability for the Custodian's failure to act on a
cancellation instruction unless the Custodian has received such cancellation
instruction at a time and in a manner affording the Custodian reasonable
opportunity to act prior to the Custodian's execution of the order. Any
cancellation shall be sent and confirmed in the manner set forth in Paragraph 2
above.
5. RESPONSIBILITY FOR THE DETECTION OF ERRORS AND UNAUTHORIZED PAYMENT ORDERS.
Except as may be provided, the Custodian is not responsible for detecting any
Company error contained in any payment order sent by the Company to the
Custodian. In the event that the Company's payment order to the Custodian either
(i) identifies the beneficiary by both a name and an identifying or bank account
number and the name and number identify different persons or entities, or (ii)
identifies any bank by both a name and an identifying number and the number
identifies a person or entity different from the bank identified by name,
execution of the payment order, payment to the beneficiary, cancellation of the
payment order or actions taken by any bank in respect of such payment order may
be made solely on the basis of the number. The Custodian shall not be liable for
interest on the amount of any payment order that was not authorized or was
erroneously executed unless the Company so notifies the Custodian within thirty
(30) business days following the Company's receipt of notice that such payment
order had been processed. If a payment order in the name of the Company and
accepted by the Custodian was not authorized by the Company, the liability of
the parties will be governed by the applicable provisions of UCC 4A.
6. LAWS AND REGULATIONS. The rights and obligations of the Custodian and the
Company with respect to any payment order executed pursuant to this Funds
Transfer Services Schedule will be governed by any applicable laws, regulations,
circulars and funds transfer system rules, the laws and regulations of the
United States of America and of other relevant countries including exchange
control regulations and limitations on dealings or other sanctions, and
including without limitation those sanctions imposed under the law of the United
States of America by the Office of Foreign Assets Control. Any taxes, fines,
costs, charges or fees imposed by relevant authorities on such transactions
shall be for the account of the Company.
7. MISCELLANEOUS. All accounts opened by the Company or its authorized agents at
the Custodian subsequent to the date hereof shall be governed by this Funds
Transfer Schedule. All terms used in this Funds Transfer Services Schedule shall
have the meaning set forth in Article 4A of the Uniform Commercial Code as
currently in effect in the State of New York (UCC 4A) unless otherwise set forth
herein. The terms and conditions of this Funds Transfer Services Schedule are in
addition to, and do not modify or otherwise affect, the terms and conditions of
the Agreement and any other agreement or arrangement between the parties hereto.
8. INDEMNIFICATION. The Custodian does not recommend the sending of instructions
by telefax or telephonic means as provided in Paragraph 2. BY ELECTING TO SEND
INSTRUCTIONS BY TELEFAX OR TELEPHONIC MEANS, THE COMPANY AGREES TO INDEMNIFY THE
CUSTODIAN AND ITS PARTNERS, OFFICERS AND EMPLOYEES FOR ALL LOSSES THEREFROM.
---------------------------------------------
OPTIONAL: The Custodian will perform a Callback if instructions are sent by
telefax or telephonic means as provided in Paragraph 2. THE COMPANY MAY, AT ITS
OWN RISK AND BY HEREBY AGREEING TO INDEMNIFY THE CUSTODIAN AND ITS PARTNERS,
OFFICERS AND EMPLOYEES FOR ALL
22
LOSSES THEREFROM, ELECT TO WAIVE A CALLBACK BY THE CUSTODIAN BY INITIALLING
HERE:____
---------------------------------------------
Accepted and agreed:
BROWN BROTHERS HARRIMAN & CO. U.S. GLOBAL ACCOLADE FUNDS
By: /s/ Susan Livingston By: /s/ Frank E. Hollmes
------------------------ ------------------------
Name: Susan Livingston Name: Frank E. Holmes
Title: Partner Title: Chief Executive Officer
Date: July 19, 2001 Date: July 12, 2001
23
APPENDIX 1
INFORMATION REGARDING COUNTRY RISK
1. To aid the Trust or its delegate in its consideration of Country Risks, the
Delegate shall furnish the Trust annually and upon the initial placement of
Foreign Assets into a country, the following information:
a. Opinions of local counsel concerning whether applicable foreign law
would restrict the: (i) access afforded the Trust's independent public
accountants to books and records kept by an Eligible Foreign Custodian
located in that country; (ii) the Trust's ability to recover its
Foreign Assets in the event of bankruptcy of an Eligible Foreign
Custodian that country; or (iii) the Trust's ability to recover
Foreign Assets that are lost while under the control of an Eligible
Foreign Custodian located in that country.
b. Written information concerning (i) the likelihood of expropriation,
nationalization, freezes, or confiscation of the Trust's Foreign
Assets and (ii) whether difficulties in converting the Trust's cash
and cash equivalents to U.S. dollars are foreseeable.
c. A MARKET PRACTICE MANUAL with respect to the following topics: (i)
securities regulatory environment; (ii) foreign ownership
restrictions; (iii) foreign exchange; (iv) securities settlement and
registration; and (v) taxation.
2. To aid the Trust in monitoring Country Risk, the Delegate shall furnish the
Trust with the following information: GLOBAL UPDATES, including with
respect to changes in the information contained in the above MARKET
PRACTICE MANUAL.