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Exhibit 10.23 —
Amendment to Custodian Agreement
AMENDMENT TO CUSTODIAN AGREEMENT
This Amendment to the
Custodian Agreement is dated as of April 23, 2006 by and between U.S.
Global Accolade Funds, a Massachusetts business trust, on behalf of each of the
portfolios listed on Appendix C to the Custodian Agreement (the
“Fund”) and attached hereto and Brown Brothers Harriman & Co.,
a limited partnership organized under the laws of the State of New York
(“BBH”) (the Fund and BBH collectively known as the “Parties”).
Whereas pursuant to a
Custodian Agreement dated as of November 1, 1997, by and between the Fund
and BBH, as amended to date (the “Agreement”) the latter has been
appointed (i) custodian for the purpose of holding foreign securities,
cash and cash equivalents outside of the United States, (ii) administrator, and
(iii) fund accounting agent;
Whereas the Parties have
agreed to make certain modifications to the Agreement in order to update and
amend the administrative services to be provided by BBH;
Now therefore, for good and
valuable consideration, the receipt and sufficiency of which are acknowledged,
the parties hereby agree to amend the Agreement as follows:
III. Amendment to the
Agreement
1. The Agreement is hereby
amended by deleting the second paragraph of Section 8.5 in its entirety
and substituting therefor with the following:
“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 the Fund and as to liabilities of the
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 Fund, (3) as to the sources of quotations which BBH was authorized
to rely upon in computing the net asset value, including those 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 the Fund, which sources BBH in
its reasonable judgment shall have deemed appropriate for such information.
(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.) The Fund may instruct the Custodian to
utilize a particular source for the valuation of a specific Security or other
Property and the Custodian shall be protected in utilizing the valuation
provided by such source without further inquiry (save for its usual and
customary automated review of price disparities) in order to effect calculation
of the Fund’s net asset value. Notwithstanding anything in this Agreement
to the contrary, provided the Custodian shall perform its duties under
Sections 8.6(3) and 8.6(6) with reasonable care and diligence, the
Custodian shall not be responsible for the failure of the Fund or the
Investment Adviser to provide the Custodian with Proper Instructions regarding
liabilities which ought to be included in the calculation of the Fund’s
net asset value.”
2. The Agreement is hereby
amended by deleting Section 8.6 in its entirety and substituting therefor
with the following:
“8.6 Appointment
as Administrator.
The Custodian is hereby appointed
administrator of the Funds with responsibility for performing the services set
forth in this Section 8.6, subject to the supervision and direction of the
Trustees of the Funds, and subject to any changes or modifications to such
services that the Funds and Custodian shall from time to time agree in writing.
In performing its duties and obligations hereunder, the Custodian shall act in
accordance with the Funds’ Declaration of Trust, By-laws (or comparable
documents) and Prospectus and Statement of Additional Information and with the
Proper Instructions of its Trustees, Treasurer and any other person reasonably
believed by the Custodian to be authorized to act on behalf of the Funds. It is
agreed and understood, however, that the Custodian shall not be responsible for
compliance of any Fund’s investments with any applicable documents, laws
or regulations, or for losses, costs or expenses arising out
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of such Fund’s
failure to comply with said documents, laws, regulations, or for losses, costs,
or expenses arising out of the Fund’s failure or inability to correct any
non-compliance therewith and shall be protected in acting on any direction from
the Funds’ Investment Advisor, Trustees, Treasurer and any other person
reasonably believe by the Custodian to be authorized to act on behalf of the
Funds.
(1) Shareholder Reports.
The Custodian shall accumulate information for and prepare one annual and one
semi-annual shareholder report for the Funds per fiscal year, such preparation
includes but is not limited to, the coordination of all printer and author
edits, the review of printer drafts and the coordination of the audit of the
Funds by its independent public auditor (e.g. manage open items lists, host
weekly audit meeting, etc.)
(2) Regulatory Filings
to the Securities and Exchange Commission. The Custodian shall accumulate
information for and prepare one annual report and one semi-annual report on
Form N-SAR, one first fiscal quarter report and one third fiscal quarter
report on Form N-Q and one annual Rule 24f-2 Notice for the Funds, as
requested by the Funds’ Treasurer. Upon acceptance of these reports by
each of the Funds, the Custodian shall edgarize and file such reports,
including the edgarizing and filing of any applicable executed officer certifications.
The Custodian shall also prepare a 13f report and shall submit said report to
the Fund for review on a quarterly basis. For avoidance of doubt, the Custodian
shall not be responsible for approving or filing 13f reports.
(3) Treasurer Support
Services. The Custodian shall provide the following support services to the
Treasurer of the Funds:
a. Expenses. The
Custodian shall prepare all expense invoices for authorization by the Funds and
shall process all such authorized expenses. The Custodian shall review all
contractual expenses of the Funds submitted by the Investment Advisor prior to
processing such expenses. The Custodian shall prepare and periodically review
the expense accruals for all fixed vendor expenses of the Funds.
b. Budgets. The
Custodian shall prepare and provide an analysis of each Fund’s budget at
the end of each fiscal quarter, which shall include a review of each
Fund’s fixed expenses accruals and recommendations, if any, for budget
adjustments.
c. Monthly Expense
Reports. The Custodian shall prepare and review Monthly Expense Reports,
which shall consist of for each Fund, (i) a reconciliation of fund
accounting monthly expenses to fund administration monthly expenses,
(ii) a basis point summary sheet, (iii) a cash disbursements journal,
(iv) an expense accrual analysis worksheet and (v) an average net
assets worksheet.
d. Quarterly Reporting.
In the Funds’ preparation of its quarterly reporting to its Board of
Trustees, the Custodian shall prepare various quarterly reports, which shall
consist of (i) a cost versus market value analysis for the applicable
portfolios listed on Appendix C attached hereto, (ii) an expense
ratio report, (iii) an exit fee calculation report and (iv) a
portfolio turnover calculation report and shall provide the broker reports that
are electronically downloaded from the Custodian’s accounting system and
have been requested by the Funds.
(4) Compliance Support.
The Custodian shall perform, in accordance with operating procedures as the
Custodian and the Funds shall from time to time agree in writing,
administrative compliance monitoring of the Funds with respect to the
investment objectives, restrictions and policies set forth in (i) the
Fund’s current prospectus and statement of additional information
provided by the Funds, or otherwise available to the Custodian, (ii) the 1940
Act and (iii) applicable IRS rules and regulations, using both manual
compliance testing and an automatic compliance system currently utilized by the
Custodian through an unaffiliated third party vendor. Any changes or
modifications to the administrative compliance monitoring provided by the
Custodian shall be agreed upon by the Funds and the Custodian in writing. In
performing its compliance monitoring services, the Custodian shall use post net
asset value compliance monitoring.
a. The Custodian and the
Funds agreed that each shall promptly notify the other of any possible
non-compliance by the Funds of their investment restrictions and policies.
b. The Custodian agrees
that it shall provide the Investment Advisor with a compliance summary report
for the Funds for each fiscal month end.
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c. The Funds agree that
they shall remain fully responsible for ensuring compliance of the investments
of the Funds with their investment restrictions and policies and that
assistance provided by the Custodian in monitoring investment restrictions and
policies shall not be deemed to be a delegation of responsibility to the
Custodian. In addition, the Funds agree that the Custodian shall not be liable
for the accuracy, completeness or use of any information or data generated by
third party information sources in connection with such administrative
compliance monitoring on any given date.






