Exhibit (g)(3)
AMENDMENT TO THE CUSTODIAN AGREEMENT
THIS AMENDMENT, dated as of July 1, 2001, between BAILARD, XXXXX & XXXXXX
OPPORTUNITY FUND GROUP, INC., a Maryland Corporation (the Company), on behalf of
each of its portfolios, and XXXXX BROTHERS XXXXXXXX & CO., a limited partnership
formed under the laws of the State of New York (BBH&Co. or the Custodian),
amends the Custodian Agreement between the parties dated June 12, 1990 (as
amended as of June 15, 1998) (the "Custodian Agreement").
WITNESSETH:
WHEREAS, the Company has employed BBH&Co. to act as custodian for the
Company and to provide related services, all as provided In the Custodian
Agreement;
WHEREAS, the Securities and Exchange Commission has promulgated Rules 17f-5
and 17f-7 under the Investment Company Act of 1940, which establish rules
regarding the Company's investments held outside the United States at Eligible
Foreign Custodians or through Eligible Securities Depositories (as defined in
such Rules); and
WHEREAS, BBH&Co. is willing to provide services in connection with such
Rules In accordance with the terms of this Amendment;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the Company and BBH&Co. hereby agree that the Custodian
Agreement shall be amended by rescinding the Contract Amendment between the
parties dated June 15, 1998 and replacing Section 3 of the Custodian Agreement
with the following:
3. Subject to the provisions hereinafter set forth in this Section 3, the
Company hereby authorizes the Custodian to utilize Subcustodians to act on
behalf of a Fund. Unless otherwise indicated, capitalized terms shall have the
meaning provided in Rules 17f-5 and 17f-7 under the Investment Company Act of
1940 (the "1940 Act"), or any successor rule or regulation.
A. DEPOSIT AND MAINTENANCE OF SECURITIES OR FUNDS WITH FOREIGN
SUBCUSTODIANS. Subject to the provisions of this Section 3A, the Custodian may
deposit and/or maintain Foreign Assets of a Fund in any non-U.S. securities
depository or clearing agency provided such securities depository or clearing
agency meets the requirements of an Eligible Securities Depository under Rule
17f-7 or by order of the Securities and Exchange Commission is exempted
therefrom. Additionally, subject to the provisions of this Section 3A, the
Custodian may, 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 Securities and Exchange
Commission 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 the
Fund for purposes of holding Foreign Assets of the Fund. Such securities
depositories, clearing agencies, banks, trust companies and other entities are
referred to herein as "Subcustodians".
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 Company to invest in such
country.
Prior to the placement of any assets of the Company with a Foreign
Securities Depository, the Custodian shall provide to the Company or its
investment adviser an analysis of the custody risks associated with maintaining
assets with such Foreign Securities Depository. Thereafter, the Custodian shall
monitor the custody risks associated with maintaining assets with such Foreign
Securities Depository on a continuing basis and promptly notify the Company
2
or its investment adviser of any material changes in such risks. In performing
its duties, the Custodian shall exercise reasonable care, prudence and
diligence. The Custodian shall not be responsible for errors or omissions in its
duties hereunder provided that it has performed its duties with reasonable care,
prudence and diligence. The risk analysis and notice of any material changes
shall be provided to the Company or its investment adviser in the manner
established as customary between the Company or its investment adviser and the
Custodian for transmission of material market information. The Custodian shall
withdraw assets from any Eligible Securities Depository that no longer meets the
requirements of Rule 17f-7 as soon as reasonably practicable; provided, however,
that if in the reasonable judgment of the Custodian, such withdrawal would
require liquidation of any of the Company's assets or would materially impair
the liquidity, value or other investment characteristics of the Company's
assets, it shall be the duty of the Custodian to provide information regarding
the particular circumstances and to act only in accordance with Proper
Instructions with respect to such liquidation or other withdrawal.
From time to time, the Custodian may offer, and the Company may accept, that the
Custodian perform certain reviews of Eligible Foreign Custodians as delegate of
the Board of Directors of the Company (the "Board") in the countries listed on
the Global Custody Network Listing to this Agreement (as amended from time to
time by Proper Instructions). In such event, the Custodian's duties and
obligations with respect to this delegated review will be performed in
accordance with the terms of the separate delegation schedule between the
Company and the Custodian.
Unless and except to the extent that review of certain matters concerning the
appointment of eligible Foreign Custodians shall have been delegated to the
Custodian pursuant to the preceding paragraph, the Custodian shall, prior to the
appointment of any Eligible Foreign Custodian for purposes of holding property
of the Fund outside the United States, obtain written confirmation of the
approval of the Board or its delegate (other than the Custodian) with respect to
the Eligible Foreign Custodian. Each such duly approved Eligible Foreign
Custodian shall be listed separately on the Global Custody Network Listing.
With respect to securities and funds held by a Subcustodian, either directly or
indirectly, including demand and interest bearing deposits, currencies or other
deposits and foreign exchange and futures contracts as referred to in Sections
3
2L, 2M, 2N, or 2O the Custodian shall be liable to a Fund (in addition to any
liability it may have under the separate delegation schedule described in the
second preceding paragraph) 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 right against such agent. The Custodian shall nevertheless be liable
to the Fund for its own negligence in transmitting any instruction received by
it from the Fund and for its own negligence in connection with the delivery of
any securities or funds 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 the Fund's
request terminate such Subcustodian and, if necessary or desirable, appoint
another Subcustodian in accordance with the provisions of this Section 3A. At
the election of the Fund, it shall have the right to enforce, to the extent
permitted by the subcustodian agreement and applicable law, the Custodian's
rights against any such Subcustodian for loss or damage caused the Fund by such
Subcustodian.
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 Fund of such claim. No more than thirty days
after written notice to the Fund of the Custodian's intention to make a payment
under such indemnification provisions, 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.
B. DEALING IN FOREIGN SECURITIES AND CASH. With respect to securities and
funds held by a Subcustodian, notwithstanding any provisions of this 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 Proper
Instructions.
IN WITNESS WHEREOF, oath of the parties hereto has caused this Amendment to
be duly executed as of the date first above written.
BAILARD, XXXXX & XXXXXX XXXXX BROTHERS XXXXXXXX & CO.
OPPORTUNITY FUND GROUP, INC.
By:_________________________ By:_________________________
