CUSTODIAN AGREEMENT
AGREEMENT made this 24th day of September, 1990, between BAILARD, XXXXX
& XXXXXX FUND GROUP, (the "Trust") on behalf of the Bailard, Xxxxx & Xxxxxx
Diversa Fund and any other separate portfolio that may be designated from time
to time by the Trust (each referred to as a "Fund"), and Xxxxx Brothers Xxxxxxxx
& Co. (the "Custodian").
WITNESSETH: That in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. The Trust hereby employs and appoints the Custodian as a custodian
for the term and subject to the provisions of this Agreement. The Custodian
shall not be under any duty or obligation to require the Trust to deliver to it
any securities, funds or other property owned by the Trust and shall have no
responsibility or liability for or on account of securities, funds or other
property not so delivered. The Trust will deposit with the Custodian copies of
the Declaration of Trust and By-Laws (or comparable documents) of the Trust and
all amendments thereto, and copies of such votes and other proceedings of the
Trust as may be necessary for, or convenient to, the Custodian in the
performance of its duties.
2. Except for securities and funds held by subcustodians appointed
pursuant to the provisions of Section 3 hereof, the Custodian shall have and
perform the following powers and duties:
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A. Safekeeping - To keep safely the securities, funds and
other-property of-a Fund that have been delivered to the Custodian and from time
to time to receive delivery of securities, funds and other property for
safekeeping.
B. Manner of Holding Securities - To hold securities of each Fund (1)
by physical possession of the share certificates or other instruments
representing such securities in registered or bearer form, or (2) in book-entry
form by a Securities System (as said term is defined in Section 2V).
C. Registered Name; Nominee - To hold registered securities of each
Fund (1) in the name or any nominee name of the Custodian or the Fund, or in the
name or any nominee name of any agent appointed pursuant to Section 6E, or (2)
in street certificate form, so-called, and in any case with or without any
indication of fiduciary capacity.
D. Purchases - Upon receipt of Proper Instructions, as defined in
Section Z on Page 15, insofar as funds are available for the purpose, to pay for
and receive securities and other property purchased for the account of a global
Fund, payment being made only upon receipt of the securities or other property
(1) by the Custodian, or (2) by a clearing corporation of a national securities
exchange of which the Custodian is a member, (3) by a Securities System or (4)
by a Subcustodian. However, (i) in the case of repurchase agreements entered
into by a Fund, the Custodian may release funds to a Securities System or to a
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Subcustodian prior to the receipt of advice from the Securities System or
Subcustodian that the securities underlying such repurchase agreement have been
transferred by book entry into the Account (as defined in Section 2V) of the
Custodian maintained with such Securities System or Subcustodian, so long as the
payment instructions to such Securities System or Subcustodian include a
requirement that delivery is only against payment of securities, and (ii) in the
case of time deposits, call account deposits, currency deposits, and other
deposits, contracts or options pursuant to Sections 2L, 2M and 2N, the Custodian
may make payment therefor without receiving an instrument evidencing said
deposit so long as the payment instructions detail specific securities to be
acquired.
E. Exchanges - Upon receipt of Proper Instructions, to exchange
securities held by it for the account of a Fund for other securities in
connection with any reorganization, recapitalization, split-up of shares,
change of par value, conversion or other event, and to deposit any such
securities in accordance with the terms of any reorganization or protective
plan. Without such instructions, the Custodian may surrender securities in
temporary form for definitive securities, may surrender securities for transfer
into a name or nominee name as permitted in Section 2C, and may surrender
securities for a different number of certificates or instruments representing
the same number of shares or same principal amount of indebtedness,
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provided the securities to be issued are to be delivered to the Custodian and
further provided Custodian shall at the time of surrendering securities or
instruments receive a receipt or other evidence of ownership thereof.
F. Sales of Securities - Upon receipt of Proper Instructions, to make
delivery of securities which have been sold for the account of a Fund, but only
against payment therefor (1) in cash, by a certified check, bank cashier's
check, bank credit, or bank wire transfer, or (2) by credit to the account of
the Custodian with a clearing corporation of a national securities exchange of
which the Custodian is a member, or (3) by credit to the account of the
Custodian or an Agent of the Custodian with a Securities System.
G. Depositary Receipts - Upon receipt of Proper Instructions, to
instruct a subcustodian appointed pursuant to Section 3 hereof (a
"Subcustodian") or an agent of the Custodian appointed pursuant to Section 6E
hereof (an "Agent") to surrender securities to the depositary used by an issuer
of American Depositary Receipts or International Depositary Receipts
(hereinafter collectively referred to as "ADRs") for such securities against a
written receipt therefor adequately describing such securities and written
evidence satisfactory to the Subcustodian or Agent that the depositary has
acknowledged receipt of instructions to issue with respect to such securities
ADRs in the name of the Custodian, or a nominee of the Custodian,
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for delivery to the Custodian in Boston, Massachusetts, or at such other place
as the Custodian may from time to time designate.
Upon receipt of Proper Instructions, to surrender ADRs to the issuer
thereof against a written receipt therefor adequately describing the ADRs
surrendered and written evidence satisfactory to the Custodian that the issuer
of the ADRs has acknowledged receipt of instructions to cause its depositary to
deliver the securities underlying such ADRs to a Subcustodian or an Agent.
H. Exercise of Rights; Tender Offers - Upon timely receipt of Proper
Instructions, to deliver to the issuer or trustee thereof, or to the agent of
either, warrants, puts, calls, rights or similar securities for the purpose of
being exercised or sold, provided that the new securities and cash, if any,
acquired by such action are to be delivered to the Custodian, and, upon receipt
of Proper Instructions, to deposit securities upon invitations for tenders of
securities, provided that the consideration is to be paid or delivered or the
tendered securities are to be returned to the Custodian.
I. Stock Dividends, Rights, Etc. - To receive and collect all stock
dividends, rights and other items of like nature; and to deal with the same
pursuant to Proper Instructions relative thereto.
J. Options - Upon receipt of Proper Instructions, to
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receive and retain confirmations or other documents evidencing the purchase or
writing of an option on a security or securities index by a Fund; to deposit and
maintain in a segregated account, either physically or by book-entry in a
Securities System, securities subject to a covered call option written by the
Fund; and to release and/or transfer such securities or other assets only in
accordance with a notice or other communication evidencing the expiration,
termination or exercise of such covered option furnished by The Options Clearing
Corporation, the securities or options exchange on which such covered option is
traded or such other organization as may be responsible for handling such
options transactions.
K. Borrowings - Upon receipt of Proper Instructions, to deliver
securities of a Fund to lenders or their agents as collateral for borrowings
effected by the Fund, provided that such borrowed money is payable to or upon
the Custodian's order as Custodian for the Fund.
L. Demand Deposit Bank Accounts - To open and operate an account or
accounts in the name of a Fund on the Custodian's books subject only to draft or
order by the Custodian. All funds received by the Custodian from or for the
account of a Fund shall be deposited in said account(s). The responsibilities of
the Custodian to a Fund for deposits accepted on the Custodian's books shall be
that of a U. S. bank for a similar deposit.
If and when authorized by Proper Instructions, the Custodian
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may open and operate an additional account(s) in such other banks or trust
companies as may be designated by a Fund in such instructions (any such bank or
trust company so designated by such Fund being referred to hereafter as a
"Banking Institution"), provided that such account(s) shall be in the name of
the Custodian for account of such Fund and subject only to the Custodian's draft
or order. Such accounts may be opened with Banking Institutions in the United
States and in other countries and may be denominated in either U. S. Dollars or
other currencies as a Fund may determine. All such deposits shall be deemed to
be portfolio securities of a Fund and accordingly the responsibility of the
Custodian therefor shall be the same as and no greater than the Custodian's
responsibility in respect of other portfolio securities of a Fund.
M. Interest Bearing Call or Time Deposits - To place interest bearing
fixed term and call deposits with such banks and in such amounts as a Fund may
authorize pursuant to Proper Instructions. Such deposits may be placed with the
Custodian or with Subcustodians or other Banking Institutions as a Fund may
determine. Deposits may be denominated in U. S. Dollars or other currencies and
need not be evidenced by the issuance or delivery of a certificate to the
Custodian, provided that the Custodian shall include in its records with
respect to the assets of a Fund, appropriate notation as to the amount and
currency of each such deposit, the accepting Banking Institution, and other
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appropriate details. Such deposits, other than those placed with the Custodian,
shall be deemed portfolio securities of a Fund and the responsibilities of the
Custodian therefor shall be the same as those for demand deposit bank accounts
placed with other banks, as described in Section 2L of this agreement. The
responsibility of the Custodian for such deposits accepted on the Custodian's
books shall be that of a U. S. bank for a similar deposit.
N. Foreign Exchange Transactions - Pursuant to Proper Instructions, to
enter into foreign exchange contracts or options to purchase and sell foreign
currencies for spot and future delivery on behalf and for the account of a Fund.
Such transactions may be undertaken by the Custodian with such Banking
Institutions, including the Custodian and Subcustodian(s) as principals, as
approved and authorized by the Trust. Foreign exchange contracts and options
other than those executed with the Custodian, shall be deemed to be portfolio
securities of a Fund and the responsibilities of the Custodian therefor shall be
the same as those for demand deposit bank accounts placed with other banks as
described in Section 2L of this agreement.
0. Futures Contracts - Upon receipt of Proper Instructions, to receive
and retain confirmations evidencing the purchase or sale of a futures contract
or an option on a futures contract by a Fund; to deposit and maintain in a
segregated account, for the benefit of any futures commission merchant or to pay
to such
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futures commission merchant, assets designated by a Fund as initial, maintenance
or variation "margin" deposits intended to secure such Fund's performance of its
obligations under any futures contracts purchased or sold or any options on
futures contracts written by such Fund, in accordance with the provisions of any
agreement or agreements among any of a Fund, the Custodian and such futures
commission merchant, designated to comply with the rules of the Commodity
Futures Trading Commission and/or any contract market, the Securities and
Exchange Commission or any similar organization or organizations, regarding such
margin deposits; and to release and/or transfer assets in such margin accounts
only in accordance with any such agreements or rules.
P. Stock Loans - Upon receipt of Proper Instructions, to deliver
securities of a Fund, in connection with loans of securities by a Fund, to the
borrower thereof upon the receipt of the cash collateral, if any, for such
borrowing. In the event U. S. Government securities are to be used as
collateral, the Custodian will not release the securities to be loaned until it
has received confirmation that such collateral has been delivered to the
Custodian. The Custodian and the Funds understand that the timing of receipt of
such confirmation will normally require that the delivery of securities to be
loaned will be made one day after receipt of the U. S. Government collateral.
Q. Collections - To collect, receive and deposit in said account or
accounts all income and other payments with respect to
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the securities held hereunder, and to execute ownership and other certificates
and affidavits for all federal and state tax purposes in connection with receipt
of income or other payments with respect to securities of a Fund or in
connection with transfer of securities, and pursuant to Proper Instructions to
take such other actions with respect to collection or receipt of funds or
transfer of securities which involve an investment decision.
R. Dividends, Distributions and Redemptions - Upon receipt of Proper
Instructions from the Trust, or upon receipt of instructions from the Trust's
shareholder servicing agent or agent with comparable duties (the "Shareholder
Servicing Agent") (given by such person or persons and in such manner on behalf
of the Shareholder Servicing Agent as the Trust shall have authorized), the
Custodian shall release funds or securities to the Shareholder Servicing Agent
or otherwise apply funds or securities, insofar as available, for the payment
of dividends or other distributions to Fund shareholders. Upon receipt of
Proper Instructions from the Trust, or upon receipt of instructions from the
Shareholder Servicing Agent (given by such person or persons and in such manner
on behalf of the Shareholder Servicing Agent as the Trust shall have
authorized), the Custodian shall release funds or securities, insofar as
available, to the Shareholder Servicing Agent or as such Agent shall otherwise
instruct for payment to Fund shareholders who have delivered to such Agent a
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request for repurchase or redemption of their shares of capital stock of the
Fund.
S. Proxies, Notices, Etc. - Promptly to deliver or mail to the Trust
all forms of proxies and all notices of meetings and any other notices or
announcements affecting or relating to securities owned by a Fund that are
received by the Custodian, and upon receipt of Proper Instructions, to execute
and deliver or cause its nominee to execute and deliver such proxies or other
authorizations as may be required. Neither the Custodian nor its nominee shall
vote upon any of such securities or execute any proxy to vote thereon or give
any consent or take any other action with respect thereto (except as otherwise
herein provided) unless ordered to do so by Proper Instructions.
T. Nondiscretionary Details - Without the necessity of express
authorization from the Trust, (1) to attend to all nondiscretionary details in
connection with the sale, exchange, substitution, purchase, transfer or other
dealings with securities, funds or other property of a Fund held by the
Custodian except as otherwise directed from time to time by the Trustees of the
Trust, and (2) to make payments to itself or others for minor expenses of
handling securities or other similar items relating to the Custodian's duties
under this Agreement, provided that all such payments shall be accounted for to
the Trust.
U. Bills - Upon receipt of Proper Instructions, to pay or
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cause to be paid, insofar as funds are available for the purpose, bills,
statements, or other obligations of a Fund.
V. Deposit of Fund Assets in Securities Systems - The Custodian may
deposit and/or maintain securities owned by a Fund in (i) The Depository Trust
Company, (ii) any book-entry system as provided in Subpart 0 of Treasury
Circular Xx. 000, 00 XXX 000, Xxxxxxx X of 31 CFR Part 350, or the book-entry
regulations of federal agencies substantially in the form of Subpart 0, or (iii)
any other domestic clearing agency registered with the Securities and Exchange
Commission under Section 17A of the Securities Exchange Act of 1934 which acts
as a securities depository and whose use the Fund has previously approved in
writing (each of the foregoing being referred to in this Agreement as a
"Securities System"). Utilization of a Securities System shall be in accordance
with applicable Federal Reserve Board and Securities and Exchange Commission
rules and regulations, if any, and subject to the following provisions:
1) The Custodian may deposit and/or maintain Fund securities, either
directly or through one or more Agents appointed by the Custodian (provided
that any such agent shall be qualified to act as a custodian of the Fund
pursuant to the Investment Company Act of 1940 and the rules and regulations
thereunder), in a Securities System provided that such securities are
represented in an account ("Account") of the Custodian or such Agent in the
Securities System which shall not include any
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assets of the Custodian or Agent other than assets held as a fiduciary,
custodian, or otherwise for customers;
2) The records of the Custodian with respect to securities of a Fund
which are maintained in a Securities System shall identify by book-entry those
securities belonging to a Fund;
3) The Custodian-shall pay for securities purchased for the account of
a Fund upon (i) receipt of advice from the Securities System that such
securities have been transferred to the Account, and (ii) the making of an entry
on the records of the Custodian to reflect such payment and transfer for the
account of that Fund. The Custodian shall transfer securities sold for the
account of a Fund upon (i) receipt of advice from the Securities System that
payment for such securities has been transferred to the Account, and (ii) the
making of an entry on the records of the Custodian to reflect such transfer and
payment for the account of a Fund. Copies of all advices from the Securities
System of transfers of securities for the account of a Fund shall identify the
Fund, be maintained for that Fund by the Custodian or an Agent as referred to
above, and be provided to that Fund at its request. The Custodian shall furnish
the Trust confirmation of each transfer to or from the account of a Fund in the
form of a written advice or notice and shall furnish to the Trust copies of
daily transaction sheets reflecting each day's transactions in the Securities
System for the account of a Fund on the next business day;
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4) The Custodian shall provide a Fund with any report obtained by the
Custodian or any Agent as referred to above on the Securities System's
accounting system, internal accounting control and procedures for safeguarding
securities deposited in the Securities System; and the Custodian and such Agents
shall send to such Fund such reports on their own systems of internal accounting
control as the Fund may reasonably request from time to time.
5) At the written request of the Trust, the Custodian will terminate
the use of any such Securities System on behalf of the Trust as promptly as
practicable.
W. Precious Metals - Upon receipt of Proper Instructions from the
Trust, the Custodian shall instruct, by tested telex, a subcustodian appointed
pursuant to Section 3 to pay for and receive precious metals purchased for the
account of a Fund only upon receipt of precious metals by such subcustodian for
the account of such Fund.
Upon receipt of Proper Instructions from the Trust, the
Custodian shall instruct, by tested telex, a Subcustodian appointed pursuant to
Section 3 to make delivery of precious metals which has been sold for the
account of a Fund, but only against receipt of cash proceeds by the Bank for the
account of the Fund.
X. Other Transfers - Upon receipt of Proper Instructions, to deliver
securities, funds and other property of a Fund to a
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Subcustodian or another custodian of such Fund; and, upon receipt of Proper
Instructions, to make such other disposition of securities, funds or other
property of such Fund in a manner other than or for purposes other than as
enumerated elsewhere in this Agreement, provided that the instructions relating
to such disposition shall include a statement of the purpose for which the
delivery is to be made, the amount of securities, funds or other property to be
delivered and the name of the person or persons to whom delivery is to be made.
Y. Investment Limitations - In performing its duties generally, and
more particularly in connection with the purchase, sale and exchange of
securities made by or for a Fund, the Custodian may assume unless and until
notified in writing to the contrary that Proper Instructions received by it are
not in conflict with or in any way contrary to any provisions of the Trust's
Declaration of Trust or By-Laws (or comparable documents) or votes or
proceedings of the shareholders or Trustees of the Trust. The Custodian shall in
no event be liable to the Trust and shall be indemnified by the Trust for any
violation which occurs in the course of carrying out instructions given by the
Fund of any investment limitations to which the Trust is subject or other
limitations with respect to the Trust's powers to make expenditures, encumber
securities, borrow or take similar actions affecting its portfolio.
Z. Proper Instructions - Proper Instructions shall mean a
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tested telex from the Trust or a written request, direction, instruction or
certification signed or initialed on behalf of the Trust by one or more person
or persons as the Board of Trustees of the Trust shall have from time to time
authorized, provided, however, that no such instructions directing the delivery
of securities or the payment of funds to an authorized signatory of the Trust
shall be signed by such person. Those persons authorized to give Proper
Instructions may be identified by the Board of Trustees by name, title or
position and will include at least one officer empowered by the Board to name
other individuals who are authorized to give Proper Instructions on behalf of
the Trust. Telephonic or other oral instructions given by any one of the above
persons will be considered Proper Instructions if the Custodian reasonably
believes them to have been given by a person authorized to give such
instructions with respect to the transaction involved. Oral instructions will be
confirmed by tested telex or in writing in the manner set forth above but the
lack of such confirmation shall in no way affect any action taken by the
Custodian in reliance upon such oral instructions. The Trust authorizes the
Custodian to tape record any and all telephonic or other oral instructions given
to the Custodian by or on behalf of the Trust (including any of its officers,
Trustees, employees or agents) and will deliver to the Custodian a similar
authorization from any investment manager or adviser or person or entity with
similar responsibilities which is
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authorized to give Proper Instructions on behalf of a Fund to the Custodian.
Proper Instructions may relate to specific transactions or to types or classes
of transactions, and may be in the form of standing instructions.
Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices or systems, in addition to
tested telex, provided that the Trust and the Custodian agree to the use of such
device or system.
3. Securities, funds and other property of a Fund may be held by
subcustodians appointed pursuant to the provisions of this Section 3 (a
"Subcustodian"). The Custodian may, at any time and from time to time, appoint
any bank or trust company or securities depository (meeting the requirements of
a custodian or a foreign custodian under the Investment Company Act of 1940 and
the rules and regulations thereunder) to act as a Subcustodian for a Fund,
provided that the Fund shall have approved in writing (1) any such bank or trust
company or securities depository and the subcustodian agreement to be entered
into between such bank or trust company and the Custodian or any Subcustodian,
and (2) if the subcustodian is a bank, trust company or securities depository
organized under the laws of a country other than the United States, the holding
of securities, cash and other property of the Fund in the country in which it is
proposed to utilize the services of such subcustodian. Upon such approval by the
Trust, the Custodian is authorized on behalf of the Trust to notify each
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Subcustodian of its appointment as such. The Custodian may, at any time in its
discretion, remove any bank or trust company or securities depository that has
been appointed as a Subcustodian but will promptly notify the Fund of any such
action.
Those Subcustodians, their offices or branches which the Trust has
approved to-date are set forth on Appendix A hereto. Such Appendix shall be
amended from time to time as Subcustodians, branches or offices are changed,
added or deleted. The Trust shall be responsible for informing the Custodian
sufficiently in advance of a proposed investment which is to be held at a
location not listed on Appendix A, in order that there shall be sufficient time
for the Trust to give the approval required by the preceding paragraph and for
the Custodian to put the appropriate arrangements in place with such
Subcustodian pursuant to such subcustodian agreement.
Although a Fund does not intend to invest in a country before the
foregoing procedures have been completed, in the event that an investment is
made prior to approval, if practical, such security shall be removed to an
approved location or if not practical such security shall be held by such agent
as the Custodian may appoint. In such event, the Custodian shall be liable to a
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 and
provided that the Custodian shall pursue its rights against such agent.
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With respect to the securities, funds and other property held by a
Subcustodian, either directly or indirectly, including demand and interest
bearing deposits, currencies or other deposits and foreign exchange contracts as
referred to in Sections 2L, 2M, 2N, or 20 the Custodian shall be liable to a
Fund if and only to the extent that such Subcustodian or any other Subcustodian
is liable to the Custodian and the Custodian recovers under the applicable
subcustodian agreement provided that the Custodian shall pursue its rights
against such Subcustodian. The Custodian shall nevertheless be liable to the
Trust for its own negligence in transmitting any instructions received by it
from the Trust and for its own negligence in connection with the delivery of any
securities, funds or other property held by it to any such Subcustodian.
In the event that any Subcustodian appointed pursuant to the
provisions of this Section 3 fails to perform any of its obligations under the
terms and conditions of the applicable subcustodian agreement, the Custodian
shall use its best efforts to cause such Subcustodian to perform such
obligations. In the event that the Custodian is unable to cause such
Subcustodian to perform fully its obligations thereunder, the Custodian shall
forthwith upon a Fund's request terminate such Subcustodian and, if necessary or
desirable, appoint another subcustodian in accordance with the provisions of
this Section 3. At the election of the Trust, it shall have the right to
enforce, to the
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extent permitted by the subcustodian agreement and applicable law, the
Custodian's rights against any such Subcustodian for loss or damage caused a
Fund by such Subcustodian.
At the written request of the Trust, the Custodian will terminate any
Subcustodian appointed pursuant to the provisions of this Section 3 in
accordance with the termination provisions under the applicable subcustodian
agreement. The Custodian will not amend any subcustodian agreement or agree to
change or permit any changes thereunder except upon the prior written approval
of the Trust.
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 affected Fund of such claim. No more
than thirty days after written notice to such Fund of the Custodian's intention
to make a payment under such indemnification provisions, such Fund will
reimburse the Custodian the amount of such payment except in respect of any
negligence or misconduct of the Custodian or any Subcustodian.
4. The Custodian may assist generally in the preparation of reports to
Fund shareholders and others, audits of accounts, and other ministerial matters
of like nature.
5. The Trust hereby also appoints the Custodian as its financial agent.
With respect to the appointment as financial agent, the Custodian shall have and
perform the following powers and duties:
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A. Records - To create, maintain and retain such records relating to
its activities and obligations under this Agreement as are required under the
Investment Company Act of 1940 and the rules and regulations thereunder
(including Section 31 thereof and Rules 3la-1 and 3la-2 thereunder) and under
applicable Federal and State tax laws. All such records will be the property of
the Trust and in the event of termination of this Agreement shall be delivered
to the successor custodian, and the Custodian agrees to cooperate with the Trust
in execution of documents and other actions necessary or desirable in order to
substitute the successor custodian for the Custodian under this agreement.
B. Accounts - To keep books of account and render statements, including
interim monthly and complete quarterly financial statements, or copies thereof,
from time to time as reasonably requested by Proper Instructions.
C. Access to Records - Subject to security requirements of the
Custodian applicable to its own employees having access to similar records
within the Custodian and such regulations as may be reasonably imposed by the
Custodian, the books and records maintained by the Custodian pursuant to
Sections 5A and 5B shall be open to inspection and audit at reasonable times by
officers of, attorneys for, and auditors employed by, the Trust.
D. Calculation of Net Asset Value - To compute and determine the net
asset value per share of capital stock of each Fund as of
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the close of business on the New York Stock Exchange on each day on which such
Exchange is open, unless otherwise directed by Proper Instructions. Such
computation and determination shall be made in accordance with (1) the
provisions of the Declaration of Trust and By-Laws of the Company, as they may
from time to time be amended and delivered to the Custodian, (2) the votes of
the Board of Trustees of the Trust at the time in force and applicable, as they
may from time to time be delivered to the Custodian, and (3) Proper Instructions
from such officers of the Trust or other persons as are from time to time
authorized by the Board of Trustees of the Trust to give instructions with
respect to computation and determination of the net asset value. On each day
that the Custodian shall compute the net asset value per share of each Fund, the
Custodian shall provide the Trust with written reports which permit the Trust to
verify that portfolio transactions have been recorded in accordance with the
Trust's instructions.
In computing the net asset value, the Custodian may rely upon any
information furnished by Proper Instructions, including without limitation any
information (1) as to accrual of liabilities of a Fund and as to liabilities of
such Fund not appearing on the books of account kept by the Custodian, (2) as to
the existence, status and proper treatment of reserves, if any, authorized by
the Trust, (3) as to the sources of quotations to be used in computing the net
asset value, including those
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listed in Appendix B, (4) as to the fair value to be assigned to any securities
or other property for which price quotations are not readily available, and (5)
as to the sources of information with respect to "corporate actions" affecting
portfolio securities of a Fund, including those listed in Appendix B.
(Information as to "corporate actions" shall include information as to
dividends, distributions, stock splits, stock dividends, rights offerings,
conversions, exchanges, recapitalizations, mergers, redemptions, calls, maturity
dates and similar transactions, including the ex- and record dates and the
amounts or other terms thereof.)
In like manner, the Custodian shall compute and determine the net asset
value as of such other times as the Board of Trustees of the Trust from time to
time may reasonably request.
Notwithstanding any other provisions of this Agreement, including
Section 6C, the following provisions shall apply with respect to the Custodian's
foregoing responsibilities in this Section 5D: The Custodian shall be held to
the exercise of reasonable care in computing and determining net asset value as
provided in this Section 5D, but shall not be held accountable or liable for any
losses, damages or expenses a Fund or any shareholder or former shareholder of
the Fund may suffer or incur arising from or based upon errors or delays in the
determination of such net asset value unless such error or delay was due to the
Custodian's negligence, gross negligence or reckless or willful
- 23 -
misconduct in determination of such net asset value. (The parties hereto
acknowledge, however, that the Custodian's causing an error or delay in the
determination of net asset value may, but does not in and of itself, constitute
negligence, gross negligence or reckless or willful misconduct.) In no event
shall the Custodian be liable or responsible to a Fund, any present or former
shareholder of a Fund or any other party for any error or delay which continued
or was undetected after the date of an audit performed by the certified public
accountants employed by the Trust if, in the exercise of reasonable care in
accordance with generally accepted accounting standards, such accountants should
have become aware of such error or delay in the course of performing such audit.
The Custodian's liability for any such negligence, gross negligence or reckless
or willful misconduct which results in an error in determination of such net
asset value shall be limited to the direct, out-of-pocket loss a Fund,
shareholder or former shareholder shall actually incur, measured by the
difference between the actual and the erroneously computed net asset value, and
any expenses a Fund shall incur in connection with correcting the records of a
Fund affected by such error (including charges made by a Fund's registrar and
transfer agent for making such corrections) or communicating with shareholders
or former shareholders of the Fund affected by such error,
Without limiting the foregoing, the Custodian shall not be
- 24 -
held accountable or liable to a Fund, any shareholder or former shareholder
thereof or any other person for any delays or losses, damages or expenses any of
them may suffer or incur resulting from (1) the Custodian's failure to receive
timely and suitable notification concerning quotations or corporate actions
relating to or affecting portfolio securities of a Fund or (2) any errors in the
computation of the net asset value based upon or arising out of quotations or
information as to corporate actions if received by the Custodian either (i) from
a source which the Custodian was authorized pursuant to the second paragraph of
this Section 5D to rely upon, or (ii) from a source which in the Custodian's
reasonable judgment was as reliable a source for such quotations or information
as the sources authorized pursuant to that paragraph. Nevertheless, the
Custodian will use its best judgment in determining whether to verify through
other sources any information it has received as to quotations or corporate
actions if the Custodian has reason to believe that any such information might
be incorrect.
In the event of any error or delay in the determination of such net
asset value for which the Custodian may be liable, the Fund and the Custodian
will consult and make good faith efforts to reach agreement on what actions
should be taken in order to mitigate any loss suffered by a Fund or its present
or former shareholders, in order that the Custodian's exposure to liability
shall be reduced to the extent possible after taking into account
- 25 -
all relevant factors and alternatives. Such actions might include a Fund or the
Custodian taking reasonable steps to collect from any shareholder or former
shareholder who has received any overpayment upon redemption of shares such
overpaid amount or to collect from any shareholder who has underpaid upon a
purchase of shares the amount of such underpayment or to reduce the number of
shares issued to such shareholder. It is understood that in attempting to reach
agreement on the actions to be taken or the amount of the loss which should
appropriately be borne by the Custodian, each Fund and the Custodian will
consider such relevant factors as applicable law, the amount of the loss
involved, such Fund's desire to avoid loss of shareholder good will, the fact
that other persons or entities could have been reasonably expected to have
detected the error sooner than the time it was actually discovered, the
appropriateness of limiting or eliminating the benefit which shareholders or
former shareholders might have obtained by reason of the error, and the
possibility that other parties providing services to a Fund might be induced to
absorb a portion of the loss incurred.
E. Disbursements - Upon receipt of Proper Instructions, to pay or cause
to be paid, insofar as funds are available for the purpose, bills, statements
and other obligations of a Fund (including but not limited to interest charges,
taxes, management fees, compensation to Trust officers and employees, and other
operating expenses of a Fund).
- 26 -
6. A. The Custodian shall not be liable for any action taken or omitted
in reliance upon Proper Instructions believed by it to-be genuine or upon any
other written notice, request, direction, instruction, certificate or other
instrument believed by it to be genuine and signed by the proper party or
parties.
The Secretary or Assistant Secretary of the Trust shall certify to the
Custodian the names, signatures and scope of authority of all persons authorized
to give Proper Instructions or any other such notice, request, direction,
instruction, certificate or instrument on behalf of each Fund, the names and
signatures of the officers of the Trust, the name and address of the Shareholder
Servicing Agent, and any resolutions, votes, instructions or directions of the
Trust's Board of Trustees or shareholders. Such certificate may be accepted and
relied upon by the Custodian as conclusive evidence of the facts set forth
therein and may be considered in full force and effect until receipt of a
similar certificate to the contrary.
So long as and to the extent that it is in the exercise of reasonable
care, the Custodian shall not be responsible for the title, validity or
genuineness of any property or evidence of title thereto received by it or
delivered by it pursuant to this Agreement.
The Custodian shall be entitled, at the expense of a Fund, to receive
and act upon advice of counsel (who may be counsel for a Fund) on all matters,
and the Custodian shall be without
- 27 -
liability for any action reasonably taken or omitted pursuant to such advice.
B. With respect to the portfolio securities, cash and other property of
a Fund held by a Securities System, the Custodian shall be liable to that Fund
only for any loss or damage to the Fund resulting from use of the Securities
System if caused by any negligence, misfeasance or misconduct of the Custodian
or any of its agents or of any of its or their employees or from any failure of
the Custodian or any such agent to enforce effectively such rights as it may
have against the Securities System.
C. Except as may otherwise be set forth in this Agreement with respect
to particular matters, the Custodian shall be held only to the exercise of
reasonable care and diligence in carrying out the provisions of this Agreement,
provided that the Custodian shall not thereby be required to take any action
which is in contravention of any applicable law. However, nothing herein shall
exempt the Custodian from liability due to its own negligence or willful
misconduct. The Trust agrees to indemnify and hold harmless the Custodian and
its nominees from all claims and liabilities (including counsel fees) incurred
or assessed against it or its nominees in connection with the performance of
this Agreement, except such as may arise from its or its nominee's breach of the
relevant standard of conduct set forth in this Agreement. Without limiting the
foregoing indemnification obligation of the Trust, the Trust agrees to indemnify
the
- 28 -
Custodian and its nominees against any liability the Custodian or such nominee
may incur by reason of taxes assessed to the Custodian or such nominee or other
costs, liability or expense incurred by the Custodian or such nominee resulting
directly or indirectly from the fact that portfolio securities or other property
of a Fund is registered in the name of the Custodian or such nominee.
In order that the indemnification provisions contained in this Section
6C shall apply, however, it is understood that if in any case the Trust may be
asked to indemnify or hold the Custodian harmless, the Trust shall be fully and
promptly advised of all pertinent facts concerning the situation in question,
and it is further understood that the Custodian will use all reasonable care to
identify and notify the Trust promptly concerning any situation which presents
or appears likely to present the probability of such a claim for indemnification
against the Trust. The Trust shall have the option to defend the Custodian
against any claim which may be the subject of this indemnification, and in the
event that the Trust so elects it will so notify the Custodian, and thereupon
the Trust shall take over complete defense of the claim, and the Custodian shall
in such situation initiate no further legal or other expenses for which it shall
seek indemnification under this Paragraph 6C. The Custodian shall in no case
confess any claim or make any compromise in any case in which the Trust will be
asked to
- 29 -
indemnify the Custodian except with the Trust's prior written consent.
It is also understood that the Custodian shall not be liable for any
loss involving any securities, currencies, deposits or other property of a Fund,
whether maintained by it, a Subcustodian, an agent of the Custodian or a
Subcustodian, a Securities System, or a Banking Institution, or a loss arising
from a foreign currency transaction or contract, resulting from a Sovereign
Risk. A "Sovereign Risk" shall mean nationalization, expropriation, devaluation,
revaluation, confiscation, seizure, cancellation, destruction or similar action
by any governmental authority, de facto or de jure; or enactment, promulgation,
imposition or enforcement by any such governmental authority of currency
restrictions, exchange controls, taxes, levies or other charges affecting each
Fund's property; or acts of war, terrorism, insurrection or revolution; or any
other similar act or event beyond the Custodian's control.
D. The Custodian shall be entitled to receive reimbursement from a Fund
on demand, in the manner provided in Section 7, for its cash disbursements,
expenses and charges (including the fees and expenses of any Subcustodian or any
Agent) in connection with this Agreement, but excluding salaries and usual
overhead expenses.
E. The Custodian may at any time or times in its discretion appoint
(and may at any time remove) any other bank or trust
- 30 -
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, that
the appointment of such Agent (other than an Agent appointed pursuant to the
third paragraph of Section 3) shall not relieve the Custodian of any of its
responsibilities under this Agreement.
F. Upon request, a Fund shall deliver to the Custodian such proxies,
powers of attorney or other instruments as may be reasonable and necessary or
desirable in connection with the performance by the Custodian or any
Subcustodian of their respective obligations under this Agreement or any
applicable subcustodian agreement.
7. Each Fund shall pay the Custodian a custody fee based on such fee
schedule as may from time to time be agreed upon in writing by the Custodian and
such Fund. Such fee, together with all amounts for which the Custodian is to be
reimbursed in accordance with Section 6D, shall be billed to each Fund in such a
manner as to permit payment by a direct cash payment to the Custodian or by
placing Fund portfolio transactions with the Custodian resulting in an
agreed-upon amount of commissions being paid to the Custodian in an agreed-upon
period of time.
8. This Agreement shall continue in full force and effect until
terminated by either party by an instrument in writing delivered or mailed,
postage prepaid, to the other party, such termination to take effect not sooner
than seventy five (75) days
- 31 -
after the date of such delivery or mailing. In the event of termination the
Custodian shall be entitled to receive prior to delivery of the securities,
funds and other property held by it all accrued fees and unreimbursed expenses
the payment of which is contemplated by Sections 6D and 7, upon receipt by the
Trust of a statement setting forth such fees and expenses.
In the event of the appointment of a successor custodian, it is agreed
that the funds and securities owned by a Fund and held by the Custodian or any
Subcustodian shall be delivered to the successor custodian, and the Custodian
agrees to cooperate with such Fund in execution of documents and performance of
other actions necessary or desirable in order to substitute the successor
custodian for the Custodian under this Agreement.
9. This Agreement constitutes the entire understanding and agreement of
the parties hereto with respect to the subject matter hereof. No provision of
this Agreement may be amended or terminated except by a statement in writing
signed by the party against which enforcement of the amendment or termination is
sought.
In connection with the operation of this Agreement, the Custodian and
the Trust may agree in writing from time to time on such provisions
interpretative of or in addition to the provisions of this Agreement as may in
their joint opinion be consistent with the general tenor of this Agreement. No
interpretative or additional provisions made as provided in the
- 32 -
preceding sentence shall be deemed to be an amendment of this Agreement.
10. This instrument is executed and delivered in The Commonwealth of
Massachusetts and shall be governed by and construed according to the laws of
said Commonwealth.
11. Notices and other writings delivered or mailed postage prepaid to a
Fund addressed to the Trust at 0000 Xxxxxx Xxxxx, Xxx Xxxxx, XX 00000 or to such
other address as the Trust may have designated to the Custodian in writing, or
to the Custodian at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Manager, Securities Department, or to such other address as the Custodian may
have designated to the Company in writing, shall be deemed to have been properly
delivered or given hereunder to the respective addressee.
12. This Agreement shall be binding on and shall inure to the benefit
of the Trust and the Custodian and their respective successors and assigns,
provided that neither party hereto may assign this Agreement or any of its
rights or obligations hereunder without the prior written consent of the other
party.
13. Notice is hereby given of the limitations of the liability of the
Trust's shareholders and Trustees as set forth in the Trust's Declaration of
Trust, as amended, on file with the Secretary of the Commonwealth of
Massachusetts. The obligations assumed by a Fund or the Trust pursuant to this
Agreement shall be limited in all cases to such Fund and its assets. No party
- 33 -
named herein shall seek satisfaction of any such obligation from the
shareholders or any shareholder of the Trust; nor shall any party named herein
seek satisfaction of any such obligation from the Board of Trustees or any
individual Trustee of the Trust.
14. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original. This Agreement shall become effective when
one or more counterparts have been signed and delivered by each of the parties.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed in its name and behalf on the day and year first above written.
BAILARD, XXXXX & XXXXXX XXXXX BROTHERS XXXXXXXX & CO.
FUND GROUP
on behalf of the
BAILARD, XXXXX & XXXXXX
DIVERSA FUND
By /s/ [ILLEGIBLE] By [ILLEGIBLE]
--------------------------- -----------------------------
Partner
XXXXX BROTHERS XXXXXXXX & CO. - GLOBAL CUSTODY NETWORK
------------------------------------------------------
BAILARD, XXXXX & XXXXXX DIVERSA FUND
------------------------------------
APPENDIX A
----------
COUNTRY SUBCUSTODIAN(S) DEPOSITORY
------- --------------- ----------
ARGENTINA CITIBANK, N.A., BUENOS AIRES Caja de Valores
Citibank, N.A., New York Agt. 7/16/81 CRYL
New York Agreement Amendment 8/31/90
New York Agreement Amendment 7/26/96
AUSTRALIA NATIONAL AUSTRALIA BANK LTD., MELBOURNE Austraclear Ltd.
National Australia Bank Agt. 5/l/85 Reserve Bank of
Australia
Agreement Amendment 2/13/92
Omnibus Amendment 11/22/93
AUSTRIA CREDITANSTALT BANKVEREIN OeKB
Creditanstalt Bankverein Agreement 12/18/89
Omnibus Amendment 1/17/94
BELGIUM BANQUE BRUXELLES XXXXXXX CIK
Banque Bruxelles Xxxxxxx Agt. 11/15/90 Banque Nationale de
Belgique
Omnibus Amendment 311/94
BERMUDA THE BANK OF N.T. XXXXXXXXXXX & SON LTD. None
The Bank of N.T. Xxxxxxxxxxx & Son Ltd. Agreement 5/27/97
BRAZIL BANKBOSTON, N.A., SAO PAULO BOVESPA
The First National Bank of Boston Agreement 1/5/88 CLC
Omnibus Amendment 2/22/94
Amendment 7/29/96
CANADA CANADIAN IMPERIAL BANK OF COMMERCE Bank of Canada
Canadian Imperial Bank of Commerce Agreement 9/9/88 CDS
Omnibus Amendment 12/1/93
CHILE CITIBANK, N.A., XXXXXXXX DCV
Citibank, N.A., New York Agreement 7/16/81
New York Agreement Amendment 8/31/90
New York Agreement Amendment 7/26/96
CZECH REPUBLIC CESKOSLOVENSKA OBCHODNI BANKA, A.S., PRAGUE SCP
Ceskoslovenska Obchodni Banka Agreement 2/28/94 Czech National Bank
DENMARK DEN DANSKE BANK VP
Den Danske Bank Agreement I/l/89
Omnibus Amendment 12/1/93
FINLAND XXXXXX BANK CSD
Union Bank of Finland Agreement 2/27/89
Omnibus Amendment 4/6/94
FRANCE BANQUE PARIBAS SICOVAM
Xxxxxx Guaranty Trust Company Agreement 0/0/00 Xxxxxx xx Xxxxxx
Consent and Transfer Agreement 0/0/00
XXXXXXX XXXXXXXX XXXX XXX
Dresdner Bank Agreement 10/6/95
GREECE CITIBANK, N.A., ATHENS Apothetirion Titlon A.E.
Citibank, N.A., New York Agreement 7/16/81 Bank of Greece
New York Agreement Amendment 8/31/90
New York Agreement Amendment 7/26/96
11/18/97 PAGE 1 OF 4
XXXXX BROTHERS XXXXXXXX & CO. - GLOBAL CUSTODY NETWORK
------------------------------------------------------
BAILARD, XXXXX & XXXXXX DIVERSA FUND
------------------------------------
APPENDIX A
----------
COUNTRY SUBCUSTODIAN(S) DEPOSITORY
------- --------------- ----------
HONG KONG STANDARD CHARTERED BANK, HONG KONG HKSCC
Standard Chartered Bank Agreement 2/18/92
Omnibus Amendment 6/13/94
Appendix 4/8/96
HUNGARY CITIBANK BUDAPEST RT. for CITIBANK, N.A. KELER Ltd.
Citibank, N.A., New York Agreement 7/16/81
New York Agreement Amendment 8/31/90
New York Agreement Amendment 7/26/96
Citibank, N.A. Subsidiary Amendment 10/19/95
Citibank, N.A./Citibank Budapest Agreement 1/24/92
INDONESIA CITIBANK, N.A., JAKARTA LPP
Citibank, N.A., New York Agreement 7/16/81
New York Agreement Amendment 8/31/90
New York Agreement Amendment 7/26/96
IRELAND ALLIED IRISH BANKS PLC CrestCo.
Allied Irish Banks Agreement 1/10/89 Gilt
Settlement Office
Omnibus Amendment 4/8/94
ISRAEL BANK HAPOALIM X.X. XXXX Clearinghouse Ltd.
Bank Hapoalim. Agreement 8/27/92
ITALY BANCA COMMERCIALE ITALIANAMonte Titoli
Banca Commerciale Italiana Agreement 5/8/89 Banca D'Italia
Agreement Amendment 10/8/93
Omnibus Amendment 12/14/93
JAPAN SUMITOMO TRUST & BANKING COMPANY, LTD. JASDEC
Sumitomo Trust & Banking Agreement 7/17/92 Bank of Japan
Omnibus Amendment 1/13/94
KOREA CITIBANK, N.A., SEOUL KSD
Citibank, N.A., New York Agreement 7/16/81
New York Agreement Amendment 8/31/90
New York Agreement Amendment 7/26/96
Citibank, Seoul Agreement Supplement 10/28/94
MALAYSIA HONGKONG BANK MALAYSIA BERHAD Bank Negara Malaysia
Hongkong & Shanghai Banking Corp. Agt. 4/19/91 MCD
Omnibus Supplement 12/29/93
Schedule 5/14/96
Malaysia Subsidiary Supplement 5/23/94
Side letter Agreement dated 7/28/97
MEXICO CITIBANK MEXICO, S. A. Indeval
Citibank, N.A., New York Agreement 7/16/81 Banco de Mexico
New York Agreement Amendment 8/31/90
New York Agreement Amendment 7/26/96
Citibank Mexico, S.A. Amendment 2/7/95
NETHERLANDS ABN-AMRO BANK NECIGEF
ABN-AMRO Agreement 00/00/00 Xx Xxxxxxxxxxxxx Xxxx
XXX XXXXXXX NATIONAL AUSTRALIA BANK LTD., AUCKLAND Reserve Bank of New Zealand
National Australia Bank Agreement 5/1/85
Agreement Amendment 2/13/92
Omnibus Amendment 11/22/93
New Zealand Addendum 3n189
11/18/97 PAGE 2 OF 4
XXXXX BROTHERS XXXXXXXX & CO. - GLOBAL CUSTODY NETWORK
------------------------------------------------------
BAILARD, XXXXX & KAISER DIVERSA FUND
------------------------------------
APPENDIX A
----------
COUNTRY SUBCUSTODIAN(S) DEPOSITORY
------- --------------- ----------
NORWAY DEN NORSKE BANK VPS
Den norske Bank Agreement 11/16/94
PERU CITIBANK, N.A., LIMA CAVALI
Citibank, N.A., New York Agreement 7/16/81
New York Agreement Amendment 8/31/90
New York Agreement Amendment 7/26/96
PHILIPPINES CITIBANK, N.A., MANILA PCD
Citibank, N.A., New York Agreement 7/16/81 XXXX
New York Agreement Amendment 8/31/90
New York Agreement Amendment 7/26/96
POLAND CITIBANK (POLAND), S.A. for CITIBANK, N.A. NDS
Citibank, N.A., New York Agreement 7/16/81 National Bank of
Poland
New York Agreement Amendment 8/31/90
New York Agreement Amendment 7/26/96
Citibank Subsidiary Amendment 10/19/95
Citibank, N.A./Citibank Poland S.A. Agt. 11/6/92
PORTUGAL BANCO ESPIRITO SANTO E COMERCIALInterbolsa
DE LISBOA, S.A.
BESCL Agreement 4/26/89
Omnibus Amendment 2/23/94
SINGAPORE STANDARD CHARTERED BANK, SINGAPORE CDP
Standard Chartered Bank Agreement 2/18/92
Omnibus Amendment 6/13/94
Xxxxxxxx 0/0/00
XXXXX XXXXXX FIRST NATIONAL BANK OF SOUTHERN AFRICA CD
First National Bank of Southern Africa Agt. 8/7/91
SPAIN BANCO SANTANDER SCLV
Banco Santander Agreement 12/14/88 Banco de Espana
SWEDEN SKANDINAVISKA ENSKILDA BANKEN VPC
Skandinaviska Enskilda Banken Agreement 2/20/89
Omnibus Amendment 12/3/93
SWITZERLAND SWISS BANK CORPORATION SEGA
Swiss Bank Corporation Agreement 3/1/94
TAIWAN STANDARD CHARTERED BANK, TAIPEI TSCD Standard
Chartered Bank Agreement 2/18/92 Omnibus Amendment
6/13/94 Appendix 4/8/96
THAILAND HONGKONG & SHANGHAI BANKING XXXX.XXX., BANGKOK TSDC
Hongkong & Shanghai Banking Corp. Agt. 4/19/91
Omnibus Amendment 12/29/93
Schedule 5/14/96
TRANSNATIONAL XXXXX BROTHERS XXXXXXXX & CO. Cedel
Euroclear
TURKEY CITIBANK, N.A., ISTANBUL Takasbank
Citibank, N.A., New York Agreement 7/16/81 Central Bank of
Turkey
New York Agreement Amendment 8/31/90
New York Agreement Amendment 7/26/96
11/18/97 PAGE 3 OF 4
XXXXX BROTHERS XXXXXXXX & CO. - GLOBAL CUSTODY NETWORK
------------------------------------------------------
BAILARD, XXXXX & KAISER DIVERSA FUND
------------------------------------
APPENDIX A
----------
COUNTRY SUBCUSTODIAN(S) DEPOSITORY
------- --------------- ----------
UNITED KINGDOM RBS TRUST BANK LTD. CGO
Royal Bank of Scotland Agreement 5/24/96 XX0
XxxxxXx.
I HEREBY CERTIFY THAT AT ITS MEETING ON THE BOARD APPROVED THE
COUNTRIES, SUBCUSTODIANS, AGREEMENTS, AND CENTRAL DEPOSITORIES LISTED ON THIS
APPENDIX,
----------------------------- ------------------
(SIGNATURE) (DATE)
-----------------------------
(TITLE)
11/18/97 PAGE 4 OF 4
AMENDMENT TO THE
----------------
CUSTODIAN AGREEMENT
-------------------
Amendment made as of December 22, 1995 (the "Amendment"), between
Bailard, Xxxxx & Xxxxxx Fund Group (the "Company") and Xxxxx Brothers Xxxxxxxx &
Co. (the "Custodian") to the Custodian Agreement dated September 24, 1990, on
behalf of Bailard, Xxxxx & Xxxxxx Diversa Fund (the "Fund") and any other
separate portfolio that may be designated from time to time by the Company and
Xxxxx Brothers Xxxxxxxx & Co.
In consideration of the mutual covenants and agreements herein
contained, the Fund and the Custodian agree that the Custodian Agreement is
hereby amended as follows:
1 . Section [y], Proper Instructions, is amended in its entirety as
follows:
"[y]. Proper Instructions - Proper instructions shall include, in order
of preference, authenticated electro-mechanical communications including SWIFT
and tested telex; a written request signed by two or more authorized persons as
set forth below; telefax transmissions and oral instructions. Each of the
foregoing methods of communicating proper instructions is described and defined
below and may from time to time be further described and defined in written
operating memoranda between the Custodian and the Fund.
Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices or systems, including
authenticated SWIFT and tested telex transmissions. The media through which such
Proper Instructions shall be transmitted and the data which must be contained in
such Proper Instructions in order for such instruction to be complete shall be
set forth in certain operating memoranda to which the Custodian and the Fund
shall from time to time agree. The Fund shall be responsible for sending
instructions which meet the requirements set forth therein and the Custodian
shall be only be responsible for acting on instructions which meet such
requirements. The Custodian shall not be liable for direct or consequential
losses resulting from technical failures of any kind in respect of instructions
sent via electro-mechanical or electronic communications.
Proper Instructions shall include a written request, direction,
instruction or certification signed or initialed on behalf of the Fund by two or
more persons as the Board of Trustees or Directors of the Fund shall have from
time to time authorized, provided, however, that no such instructions directing
the delivery of securities or the payment of funds to an authorized signatory of
the Fund shall be signed by such persons. Those persons authorized to give
proper instructions may be identified by the Board of Trustees or Directors by
name, title or position and will include at least one officer empowered by the
Board to name other individuals who are authorized to give proper instructions
on behalf of the Fund. Telephonic or other oral instructions or instructions
given by facsimile transmission may be given by any one of the above persons and
will be considered proper instructions if the Custodian reasonably believes them
to have been given by a person authorized to give such instructions with respect
to the transaction involved.
With respect to telefax. transmissions, the Fund and the Custodian
hereby acknowledge that (i) receipt of legible instructions cannot be assured,
(ii) the Custodian cannot verify that authorized signatures on telefax
instructions are original, and (iii) the Custodian shall not be responsible for
losses or expenses incurred through actions taken in reliance on such telefax
instructions.
The Custodian may act on oral instructions provided such instructions
will be confirmed by authenticated electro-mechanical communications in the
manner set forth above but the lack of such confirmation shall in no way affect
any action taken by the Custodian in reliance upon such oral instructions. The
Fund authorizes the Custodian to tape record any and all telephonic or other
oral instructions given to the Custodian by or on behalf of the Fund (including
any of its officers, Directors, Trustees, employees or agents or any investment
manager or adviser or person or entity with similar responsibilities which is
authorized to give proper instructions on behalf of the Fund to the Custodian.)
Proper instructions may relate to specific transactions or to types or
classes or transactions, and may be in the form of standing instructions."
Except as amended above, all the provisions of the Custodian Agreement
as hereto effect shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date set forth above.
Bailard, Xxxxx & Xxxxxx Fund Group, Inc. XXXXX BROTHERS XXXXXXXX & CO.
on behalf of Bailard, Xxxxx and Xxxxxx
Diversa Fund
_____________________________________ __________________________________
(signature)
_____________________________________
(name/title)
