Exhibit (g)(i)
FORM OF
CUSTODY AGREEMENT
THIS AGREEMENT, is made as of ___________________, 200___, by and between FIFTH
THIRD FUNDS, a business trust organized under the laws of the Commonwealth of
Massachusetts (the "Trust"), and FIFTH THIRD BANK, an Ohio banking corporation
(the "Custodian").
WITNESSETH:
WHEREAS, the Trust desires that the Securities and cash of each of the
investment portfolios identified in Exhibit A hereto (such investment portfolios
and individually referred to herein as a "Fund" and collectively as the
"Funds"), be held and administered by the Custodian pursuant to this Agreement;
and
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Custodian represents that it is a bank having the
qualifications prescribed in Section 26(a)(i) of the 1940 Act;
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Trust and the Custodian hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
1.1 "Authorized Person" means any Officer or other person duly authorized
by resolution of the Board of Trustees to give Oral Instructions and Written
Instructions on behalf of the Trust and named in Exhibit B hereto or in such
resolutions of the Board of Trustees, certified by an Officer, as may be
received by the Custodian from time to time.
1.2 "Board of Trustees" shall mean the Trustees from time to time serving
under the Trust's Agreement and Declaration of Trust, dated September 15, 1988,
as from time to time amended.
1.3 "Book-Entry System" shall mean the Federal Reserve/Treasury book entry
system for receiving and delivering Assets, its successors and nominees.
1.4 "Business Day" shall mean any day recognized as a settlement day by The
New York Stock Exchange, Inc. and any other day for which the Trust computes the
net asset value of the Trust.
1.5 "Custody Account" shall mean any account in the name of the Trust,
which is provided for in Section 3.2 below.
1.6 "NASD" shall mean The National Association of Securities Dealers, Inc.
1.7 "Officer" shall mean the President, any Vice President, the Secretary,
any Assistant Secretary, the Treasurer, or any Assistant Treasurer of the Trust.
1.8 "Oral Instructions" shall mean instructions orally transmitted to and
accepted by the Custodian if such instructions are (i) reasonably believed by
the Custodian to have been given by an
Authorized Person, (ii) recorded and kept among the records of the Custodian
made in the ordinary course of business and (iii) orally confirmed by the
Custodian.
1.9 "Proper Instructions" shall mean Oral Instructions or Written
Instructions. Proper Instructions will not include a recurring of a continuous
event unless they are Written Instructions.
1.10 "Securities" shall include, without limitation, common and preferred
stocks, bonds, call options, put options, debentures, notes, bank certificates
of deposit, bankers' acceptances, mortgage-backed securities, other money market
instruments or other obligations, and any certificates, receipts, warrants or
other instruments or documents representing rights to receive, purchase or
subscribe for the same, or evidencing or representing any other rights or
interests therein, or any similar property or assets that the Custodian has the
facilities to clear and to service.
1.11 "Securities Depository" shall mean or The Depository Trust Company and
(provided that Custodian shall have received a copy of a resolution of the Board
of Trustees, certified by an Officer, specifically approving the use of such
clearing agency as a depository for the Trust) any other clearing agency
registered with the Securities and Exchange Commission under Section 17A of the
Securities Exchange Act of 1934 (the "1934 Act"), which acts as a system for the
central handling of Securities where all Securities of any particular class or
series of an issuer deposited within the system are treated as fungible and may
be transferred or pledged by bookkeeping entry without physical delivery of the
Securities.
1.12 "Shares" shall mean the units of beneficial interest issued by the
Trust.
1.13 "Written Instructions" shall mean (i) written communications actually
received by the Custodian and signed by one or more persons as the Board of
Trustees shall have from time to time authorized, or (ii) communications by
telex or any other such system from a person or persons reasonably believed by
the Custodian to be Authorized, or (iii) communications transmitted
electronically through the Institutional Delivery System, or any other similar
electronic instruction system acceptable to Custodian and approved by
resolutions of the Board of Trustees, a copy of which, certified by an Officer,
shall have been delivered to the Custodian.
ARTICLE II
APPOINTMENT OF CUSTODIAN
2.1 Appointment. The Trust hereby constitutes and appoints the Custodian as
custodian of all Securities and cash owned by or in the possession of the Trust
at any time during the period of this Agreement, provided that such Securities
or cash at all times shall be and remain the property of the Trust.
2.2 Acceptance. The Custodian hereby accepts appointment as such custodian
and agrees to perform the duties thereof as hereinafter set forth and in
accordance with the 1940 Act. Except as specifically set forth herein, the
Custodian shall have no liability and assumes no responsibility for any
non-compliance by the Trust or a Fund of any laws, rules or regulations.
ARTICLE III
CUSTODY OF CASH AND SECURITIES
3.1 Segregation. All Securities and non-cash property held by the Custodian
for the account of each Fund, except Securities maintained in a Securities
Depository or Book-Entry System, shall be physically segregated from other
Securities and non-cash property in the possession of the Custodian and shall be
identified as subject to this Agreement.
3.2 Custody Account. The Custodian shall open and maintain in its trust
department a custody account in the name of each Fund, subject only to draft or
order of the Custodian, in which the Custodian shall enter and carry all
Securities, cash and other assets of the Funds which are delivered to it,
including payments from the transfer agent of the Funds.
3.3 Appointment of Agents. In its discretion, the Custodian may appoint,
and at any time remove, any domestic bank or trust company that has been
approved by the Board of Trustees and is qualified to act as a custodian under
the 1940 Act, as sub-custodian to hold Securities and cash of the Funds and to
carry out such other provisions of this Agreement as it may determine, and may
also open and maintain one or more banking accounts with such a bank or trust
company (any such accounts to be in the name of the Custodian on behalf of its
customers and subject only to its draft or order pursuant to the terms of this
Agreement), provided, however, that the appointment of any such agent shall not
relieve the Custodian of any of its obligations or liabilities under this
Agreement.
3.4 Delivery of Assets to Custodian. The Trust shall deliver, or cause to
be delivered, to the Custodian all of the Trust's applicable Securities, cash
and other assets, including (a) all payments of income, payments of principal
and capital distributions received by the Trust with respect to such Securities,
cash or other assets owned by the Trust at any time during the period of this
Agreement, and (b) all cash received by the Trust for the issuance, at any time
during such period, of Shares. The Custodian shall not be responsible for such
Securities, cash or other assets until actually received by it.
3.5 Securities Depositories and Book-Entry Systems. The Custodian may
deposit and/or maintain Securities of the Trust in a Securities Depository or in
a Book-Entry System, subject to the following provisions:
(a) Prior to a deposit of Securities of the Trust in any Securities
Depository or Book-Entry System, the Trust shall deliver to the
Custodian a resolution of the Board of Trustees, certified by an
Officer, authorizing and instructing the Custodian on an on-going
basis to deposit in such Securities Depository or Book-Entry System
all Securities eligible for deposit therein and to make use of such
Securities Depository or Book-Entry System to the extent possible and
practical in connection with its performance hereunder, including,
without limitation, in connection with settlements of purchases and
sales of Securities, loans of Securities, and deliveries and returns
of collateral consisting of Securities.
(b) Securities of the Trust kept in a Book-Entry System or Securities
Depository shall be kept in an account ("Depository Account") of the
Custodian in such Book-Entry System or Securities Depository which
includes only assets held by the Custodian as a fiduciary, custodian
or otherwise for customers.
I The records of the Custodian and the Custodian's account on the books
of the Book-Entry System and/or Securities Depository as the case may
be, with respect to Securities of a Fund maintained in a Book-Entry
System or Securities Depository shall, by book-entry, or otherwise
identify such Securities as belonging to such Fund.
(d) If Securities purchases by the Trust for a Fund are to be held in a
Book-Entry System or Securities Depository, the Custodian shall pay
for such Securities upon (i) receipt of advice from the Book-Entry
System or Securities Depository that such Securities have been
transferred to the Depository Account, and (ii) the making of an entry
on the records of the Custodian to reflect such payment and transfer
for the account of such Fund. If Securities sold by such Fund are held
in a Book-Entry System or Securities Depository, the Custodian shall
transfer such Securities upon (i) receipt of advice from the
Book-Entry System or Securities depository that payment for such
Securities has been transferred to the Depository Account, and (ii)
the making of an entry on the records of the Custodian to reflect such
transfer and payment for the account of such Fund.
(e) Upon request, the Custodian shall provide the Trust with copies of any
report (obtained by the Custodian from a Book-Entry System or
Securities Depository in which Securities of any Fund are kept) on the
internal accounting controls and procedures for safeguarding
Securities deposited in such Book-Entry System or Securities
Depository.
(f) Anything to the contrary in this Agreement notwithstanding, the
Custodian shall be liable to the Trust for any loss or damage to the
Trust resulting (i) from the use of a Book-Entry System or Securities
Depository by reason of any negligence or willful misconduct on the
part of Custodian or any sub-custodian appointed pursuant to Section
3.3 above or any of its or their employees, or (ii) from failure of
Custodian or any such sub-custodian to enforce effectively such rights
as it may have against a Book-Entry System or Securities Depository.
At its election, the Trust shall be subrogated to the rights of the
Custodian with respect to any claim against a Book-Entry System or
Securities Depository or any other person for any loss or damage to
the Trust arising from the use of such Book-Entry System or Securities
Depository, if and to the extent that the Trust has been made whole
for any such loss or damage.
3.6 Disbursement of Moneys from Custody Accounts. Upon receipt of Proper
Instructions, the Custodian shall disburse moneys from the Custody Account but
only in the following cases:
(a) For the purchase of Securities for the Trust but only upon compliance
with Section 4.1 of this Agreement and only (i) in the case of
Securities (other than options on Securities, futures contracts and
options on futures contracts), against the delivery to the Custodian
(or any sub-custodian appointed pursuant to Section 3.3 above) of such
Securities registered as provided in Section 3.9 below in proper form
for transfer, or if the purchase of such Securities is effected
through a Book-Entry System or Securities Depository, in accordance
with the conditions set forth in Section 3.5 above; (ii) in the case
of options on Securities, against delivery to the Custodian (or such
sub-custodian) of such receipts as are required by the customs
prevailing among dealers in such options; (iii) in the case of futures
contracts and options on futures contracts, against delivery to the
Custodian (or such sub-custodian) of evidence of title thereto in
favor of the Trust or any nominee referred to in Section 3.10 below;
and (iv) in the case of repurchase or reverse repurchase agreements
entered into between the Trust and a bank which is a member of the
Federal Reserve System or between the Trust and a primary dealer in
U.S. Government securities, against delivery of the purchased
Securities either in certificate form or through an entry crediting
the Custodian's account at a Book-Entry System or Securities
Depository for the account of the Trust with such Securities;
(b) In connection with the conversion, exchange or surrender, as set forth
in Section 3.7(g) below, of Securities owned by the Trust;
I For the payment of any dividends or capital gain distributions
declared by the Trust;
(d) In payment of the redemption price of Shares as provided in Article V
below;
(e) For the payment of any expense or liability incurred by the Trust,
including but not limited to the following payments for the account of
a Fund: interest taxes administration, investment management,
investment advisory, accounting, auditing, transfer agent, custodian,
trustee and legal fees; and other operating expenses of a Fund; in all
cases, whether or not such expenses are to be in whole or in part
capitalized or treated as deferred expenses;
(f) For transfer in accordance with the provisions of any agreement among
the Trust, the Custodian and a broker-dealer registered under the 1934
Act and a member of the NASD, relating to compliance with rules of The
Options Clearing Corporation and of any registered national securities
exchange (or of any similar organization or organizations) regarding
escrow or other arrangements in connection with transactions by the
Trust;
(g) For transfer in accordance with the provisions of any agreement among
the Trust, the Custodian, and a futures commission merchant registered
under the Commodity Exchange Act, relating to compliance with the
rules of the Commodity Futures Trading Commission and/or any contract
market (or any similar organization or organizations) regarding
account deposits in connection with transactions by the Trust;
(h) For the funding of any uncertificated time deposit or other
interest-bearing account with any banking institution (including the
Custodian), which deposit or account has a term of one year or less;
and
(i) For any other proper purposes, but only upon receipt, in addition to
Proper Instructions, of a copy of a resolution of the Board of
Trustees, certified by an Officer, specifying the amount and purpose
of such payment, declaring such purpose to be a proper corporate
purpose, and naming the person or persons to whom such payment is to
be made.
3.7 Delivery of Securities from a Custody Accounts. Upon receipt of Proper
Instructions, the Custodian shall release and deliver Securities from a Custody
Account but only in the following cases:
(a) Upon the sale of Securities for the account of a Fund but only against
receipt of payment therefore in cash, by certified or cashiers check
or bank credit;
(b) In the case of a sale effected through a Book-Entry System or
Securities Depository, in accordance with the provisions of Section
3.5 above;
I To an offeror's depository agent in connection with tender or other
similar offers for Securities of a Fund; provided that, in any such
case, the cash or other consideration is to be delivered to the
Custodian;
(d) To the issuer thereof or its agent when such Securities are called,
redeemed, retired or otherwise become payable; provide that, in any
such case, the cash or other consideration is to be delivered to the
Custodian;
(e) To the issuer thereof or its agent (i) for transfer into the name of
the Trust, the Custodian or any sub-custodian appointed pursuant to
Section 3.3 above, or of any nominee or nominees of any of the
foregoing, or (ii) for exchange for a different number of certificates
or other evidence representing the same aggregate face amount or
number of units; provided that, in any such case, the new Securities
are to be delivered to the Custodian;
(f) To the broker selling Securities, for examination in accordance with
the "street delivery" custom;
(g) For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or readjustment of the
issuer of such Securities, or pursuant to provisions for conversion
contained in such Securities, or pursuant to any deposit agreement,
including surrender or receipt of underlying Securities in connection
with the issuance or cancellation of depository receipts; provided
that, in any such case, the new Securities and cash, if any, are to be
delivered to the Custodian;
(h) Upon receipt of payment therefore pursuant to any repurchase or
reverse repurchase agreement entered into by a Fund;
(i) Upon the exercise of warrants, rights or similar Securities, provided,
however, that in any such case, the new Securities and cash, if any,
are to be delivered to the Custodian;
(j) For delivery in connection with any loans of Securities of a Fund, but
only against receipt of such collateral as the Trust shall have
specified to the Custodian in Proper Instructions;
(k) For delivery as security in connection with any borrowings by the
Trust on behalf of a Fund requiring a pledge of assets by such Fund,
but only against receipt by the Custodian of the amounts borrowed;
(l) Pursuant to any authorized plan of liquidation, reorganization,
merger, consolidation
or recapitalization of the Trust or a Fund;
(m) For delivery in accordance with the provisions of any agreement among
the Trust, the Custodian and a broker-dealer registered under the 1934
Act and a member of the NASD, relating to compliance with the rules of
The Options Clearing Corporation and of any registered national
securities exchange (or of any similar organization or organizations)
regarding escrow or other arrangements in connection with transactions
by the Trust on behalf of a Fund;
(n) For delivery in accordance with the provisions of any agreement among
the Trust (on behalf of a Fund), the Custodian, and a futures
commission merchant registered under the Commodity Exchange Act,
relating to compliance with the rules of the Commodity Futures Trading
Commission and/or any contract market (or any similar organization or
organizations) regarding account deposits in connection with
transactions by the Trust on behalf of a Fund; or
(o) For any other proper corporate purposes, but only upon receipt, in
addition to Proper Instructions, of a copy of a resolution of the
Board of Trustees, certified by an Officer, specifying the Securities
to be delivered, setting forth the purpose for which such delivery is
to be made, declaring such purpose to be a proper corporate purpose,
and naming the person or persons to whom delivery of such Securities
shall be made.
(p) Upon receipt of instructions from the transfer agent for a Fund, for
delivery to such transfer agent or to holders of Shares in connection
with distributions in kind, in satisfaction of requests by holders of
Shares for repurchase or redemption.
3.8 Actions Not Requiring Proper Instructions. Unless otherwise instructed
by the Trust, the Custodian shall with respect to all Securities held for a
Fund;
(a) Subject to Section 7.4 below, collect on a timely basis all income and
other payments to which the Trust is entitled either by law or
pursuant to custom in the securities business;
(b) Present for payment and, subject to Section 7.4 below, collect on a
timely basis the amount payable upon all Securities which may mature
or be called, redeemed, or retired, or otherwise become payable;
I Endorse for collection, in the name of the Trust, checks, drafts and
other negotiable instruments;
(d) Surrender interim receipts or Securities in temporary form for
Securities in definitive form;
(e) Execute, as custodian, any necessary declarations or certificates of
ownership under the federal income tax laws or the laws or regulations
of any other taxing authority now or hereafter in effect, and prepare
and submit reports to the Internal Revenue Service ("IRS") and to the
Trust at such time, in such manner and containing such information as
is prescribed by the IRS;
(f) Hold for a Fund, either directly or, with respect to Securities held
therein, through a Book-Entry System or Securities Depository, all
rights and similar securities issued with respect to Securities of
such Fund; and
(g) In general, and except as otherwise directed in Proper Instructions,
attend to all non-discretionary details in connection with sale,
exchange, substitution, purchase, transfer and other dealings with
Securities and assets of any Fund.
3.9 Registration and Transfer of Securities. All Securities held for a Fund
that are issued or issuable only in bearer form shall be held by the Custodian
in that form, provided that any such Securities shall be held in a Book-Entry
System for the account of the Trust on behalf of a Fund, if eligible therefore.
All other Securities held for a Fund may be registered in the name of the Trust
on behalf of such Fund, the Custodian, or any sub-custodian appointed pursuant
to Section 3.3 above, or in the name of any nominee of any of them, or in the
name of a Book-Entry System, Securities Depository or any nominee of either
thereof; provided, however, that such Securities are held specifically for the
account of the Trust on behalf of a Fund. The Trust shall furnish to the
Custodian appropriate instruments to enable the Custodian to hold or deliver in
proper form for transfer, or to register in the name of any of the nominees
hereinabove referred to or in the name of a Book-Entry System or Securities
Depository, any Securities registered in the name of a Fund.
3.10 Records. (a) The Custodian shall maintain, by Fund, complete and
accurate records with respect to Securities, cash or other property held for the
Funds, including (i) journals or other records of original entry containing an
itemized daily record in detail of all receipts and deliveries of Securities and
all receipts and disbursements of cash; (ii) ledgers (or other records)
reflecting (A) Securities in transfer, (B) Securities in physical possession,
(C) monies and Securities borrowed and monies and Securities loaned (together
with a record of the collateral therefore and substitutions of such collateral),
(D) dividends and interest received, and (E) dividends receivable and interest
accrued; and (iii) canceled checks and bank records related thereto. The
Custodian shall keep such other books and records of the Trust as the Trust
shall reasonably request, or as may be required by the 1940 Act, including, but
not limited to, those necessary to comply with Section 31 and Rule 31a-1 and
Rule 31a-2 promulgated thereunder.
(b) All such books and records maintained by the Custodian shall (i) be
maintained in a form acceptable to the Trust and in compliance with rules and
regulations of the Securities and Exchange Commission, (ii) be the property of
the Trust and at all times during the regular business hours of the Custodian be
made available upon request for inspection by duly authorized officers,
employees or agents of the Trust and employees or agents of the Securities and
Exchange Commission, and (iii) if required to be maintained by Rule 31a-1 under
the 1940 Act, be preserved for the periods prescribed in Rule 31a-2 under the
0000 Xxx.
3.11 Fund Reports by Custodian. The Custodian shall furnish the Trust with
a daily activity statement by Fund and a summary of all transfers to or from the
Custody Account on the day following such transfers. At least monthly and from
time to time, the Custodian shall furnish the Trust with a detailed statement,
by Fund, of the Securities and moneys held for the Trust under this Agreement.
3.12 Other Reports by Custodian. The Custodian shall provide the Trust with
such reports as the Trust may reasonably request from time to time on the
internal accounting controls and procedures for safeguarding Securities, which
are employed by the Custodian or any sub-custodian appointed pursuant to Section
3.3 above. Such reports shall be of sufficient scope and in sufficient detail as
may reasonably be required by the Trust to provide reasonable assurance that any
material inadequacies would be disclosed by such examination, and, if there are
no such inadequacies, the reports shall so state.
3.13 Proxies. The Custodian, with respect to all Securities, however
registered, shall promptly deliver such proxies, all proxy soliciting materials,
and all notices regarding Securities to the Chief Investment Officer of Fifth
Third Asset Management, Inc., the Funds' investment adviser (the "Investment
Advisor").
3.14 Information on Corporate Actions. Custodian will promptly notify the
Investment Advisor of corporate actions, such as class actions and tender
offers, only for those Securities registered in nominee name and including those
Securities held at a Securities Depository, Book-Entry System or sub-custodian
acting as agent for Custodian. For market announcements not yet received and
distributed by Custodian's services, Trust will inform its custody
representative with appropriate instructions. Custodian will, upon receipt of
the Investment Advisor's response within the required deadline, effect such
action for receipt by or payment to the Trust. For those responses received
after the deadline, Custodian will effect such action for receipt or payment,
subject to the limitations of the agent(s) effecting such actions. The
Trust will provide or cause the Investment Advisor to provide Custodian with all
relevant information contained in the prospectus for any security that has
unique put, call or other option provisions and provide Custodian with specific
tender instructions at least ten business days prior to the beginning date of
the tender period.
3.15 Securities Class Action Services. Custodian will provide notification
of any class action to the Investment Advisor. Custodian's reporting will be
based on its actual knowledge of securities that the Trust has deposited at any
time with the Custodian, any Securities Depository or Book-Entry System used by
the Custodian, or any sub-custodian acting as agent for Custodian. Securities
held by the Trust elsewhere or not ever held by Custodian, any Securities
Depository or Book-Entry System used by the Custodian, or any sub-custodian
acting as agent for Custodian are deemed to be outside of the actual knowledge
of the Custodian. Custodian will have no responsibility to file claims on behalf
of the Trust.
ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
4.1 Purchase of Securities. Promptly upon each purchase of Securities for
the Trust, Proper Instructions shall be delivered to the Custodian, specifying
(a) the Fund for which the purchase as made, (b) the name of the issuer or
writer of such Securities, and the title or other description thereof, (c) the
number of shares, principal amount (and accrued interest, if any) or other units
purchased, (d) the date of purchase and settlement, (e) the purchase price per
unit, (f) the total amount payable upon such purchase, and (g) the name of the
person to whom such amount is payable. The Custodian shall upon receipt of such
Securities purchased by a Fund pay out of the moneys held for the account of
such Fund the total amount specified in such Proper Instructions to the person
named therein. The Custodian shall not be under any obligation to pay out moneys
to cover the cost of a purchase of Securities for a Fund, if in the relevant
Custody Account there is insufficient cash available to settle the purchase of
Securities in the Fund.
4.2 Liability for Payment in Advance of Receipt of Securities Purchased. In
each and every case where payment for the purchase of Securities for a Fund is
made by the Custodian in advance of receipt for the account of the Fund of the
Securities purchased, but in the absence of specific Proper Instructions to so
pay in advance, the Custodian shall be liable to the Fund for such Securities to
the same extent as if the Securities had been received by the Custodian.
4.3 Sale of Securities. Promptly upon each sale of Securities by a Fund,
Proper Instructions shall be delivered to the Custodian specifying (a) the Fund
for which the sale was made, (b) the name of the issuer or writer of such
Securities, and the title or other description thereof, (c) the number of
shares, principal amount (and accrued interest, if any) or other units sold, (d)
the date of sale and settlement (e) the sale price per unit, (f) the total
amount payable upon such sale and (g) the person to whom such Securities are to
be delivered. Upon receipt of the total amount payable to the Trust as specified
in such Proper Instructions, the Custodian shall deliver such Securities to the
person specified in such Proper Instructions. Subject to the foregoing, the
Custodian may accept payment in such form as shall be satisfactory to it, and
may deliver Securities and arrange for payment in accordance with the customs
prevailing among dealers in Securities.
4.4 Delivery of Securities Sold. Notwithstanding Section 4.3 above or any
other provision of this Agreement, the Custodian, when instructed to deliver
Securities against payment, shall be entitled, if in accordance with generally
accepted market practices and procedures in the foreign or domestic jurisdiction
in which the transaction occurs, to deliver such Securities prior to actual
receipt of final payment therefore. In any such case, the Trust shall bear the
risk that final payment for such Securities may not be made or that such
Securities may be returned or otherwise held or disposed of by or through the
person to whom they were delivered, and the Custodian shall have no liability
for any of the foregoing, except as may arise from the Custodian's own failure
to act in accordance with the standard of reasonable care or any higher standard
of care imposed upon the Custodian by any applicable law or resolution if such
above-stated standard of reasonable care were not part of this Agreement.
4.5 Payment for Securities Sold, etc. In its sole discretion and from time
to time, the
Custodian may credit the relevant Custody Account, prior to actual receipt of
final payment thereof, with (i) proceeds from the sale of Securities which it
has been instructed to deliver against payment, (ii) proceeds from the
redemption of Securities or other assets of the Trust, and (iii) income from
cash, Securities or other assets of the Trust. Any such credit shall be
conditional upon actual receipt by Custodian of final payment and may be
reversed if final payment is not actually received in full. The Custodian may,
in its sole discretion and from time to time, permit the Trust to use funds so
credited to its Custody Account in anticipation of actual receipt of final
payment. Any such funds shall be repayable immediately upon demand made by the
Custodian at any time prior to the actual receipt of all final payments in
anticipation of which funds were credited to the Custody Account.
4.6 Advances by Custodian for Settlement. The Custodian may, in its sole
discretion and from time to time, advance funds to the Trust or its designee to
facilitate the settlement of a Trust transaction on behalf of a Fund in its
Custody Account.
ARTICLE V
REDEMPTION OF TRUST SHARES
From such funds as may be available for the purpose in the relevant Custody
Account, and upon receipt of Proper Instructions specifying that the funds are
required to redeem Shares of a Fund, the Custodian shall wire each amount
specified in such Proper Instructions to or through such bank as the Trust may
designate with respect to such amount in such Proper Instructions. Upon
effecting payment or distribution in accordance with proper Instruction, the
Custodian shall not be under any obligation or have any responsibility
thereafter with respect to any such paying bank.
ARTICLE VI
SEGREGATED ASSETS
Certain Fund transactions (e.g., when-issued securities, delayed delivery
transactions, and reverse repurchase agreements) require the Fund to segregate
liquid assets sufficient to cover the future liability involved in these
transactions. The Fund's Investment Advisor will instruct the Custodian to
segregate those assets on the Custodian's books. The Custodian need not
physically segregate the assets. The Custodian may note on its books that the
selected assets are "segregated." The Investment Advisor will review the value
of the segregated assets and will instruct the Custodian to place additional
assets in the segregated asset status if the value of the assets falls below the
commitment value of the Fund. The Custodian will provide Internet report access
to authorized representatives of the Investment Advisor. The Investment Advisor
will review the Custodian's report for compliance.
ARTICLE VII
CONCERNING THE CUSTODIAN
7.1 Standard of Care. The Custodian shall be held to the exercise of
reasonable care in carrying out its obligations under this Agreement, and shall
be without liability to the Trust for any loss, damage, cost, expense (including
attorneys' fees and disbursements), liability or claim unless such loss,
damages, cost, expense, liability or claim arises from negligence, bad faith,
willful misconduct or negligent or willful failure to act on its part or on the
part of any sub-custodian appointed pursuant to Section 3.3 above. The custodian
will not be liable for special incidental or punitive damages. The Custodian
shall be entitled to rely on and may act upon advice of counsel (who shall
either be counsel for the Fund, or other counsel selected by the Custodian with
expertise in the 1940 Act) on all matters, and shall be without liability for
any action reasonably taken or omitted pursuant to such advice. The Custodian
shall promptly notify the Trust of any action taken or omitted by the Custodian
pursuant to advice of counsel. Provided, however, if there is a likelihood that
such action could cause a material loss to the Trust, the Custodian shall advise
the Trust in advance and seek consent by the Trust of any such actions to be
taken in accordance with such advice of counsel to the Custodian.
Notwithstanding the foregoing, the Custodian shall be liable to the Trust
for any loss or damage resulting from the use of the Book-Entry System or
Securities Depository arising by reason of any negligence, bad faith, willful
misconduct or negligent or willful failure to act on the part of the Custodian
or any of its employees or agents.
7.2 Actual Collection Required. The Custodian shall not be liable for, or
considered to be the custodian of, any cash belonging to the Trust or any money
represented by a check, draft or other instrument for the payment of money,
until the Custodian or its agents actually receive such cash or collect on such
instrument.
7.3 No Responsibility for title, etc. 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 or delivered by it pursuant to this Agreement.
7.4 Limitation on Duty to Collect. Custodian shall not be required to
enforce collection, by legal means or otherwise, of any money or property due
and payable with respect to Securities held for the Trust if such Securities are
in default or payment is not made after due demand or presentation. Custodian
shall promptly notify the Trust whenever income due on Securities is not
collected in due course and will provide the Trust with monthly reports of the
status of past due income.
7.5 Reliance Upon Documents and Instructions. The Custodian shall be
entitled to rely upon any certificate, notice or other instrument in writing
received by it and reasonably believed by it to be genuine. The Custodian shall
be entitled to rely upon any Oral Instructions and/or any Written Instructions
actually received by it pursuant to this Agreement.
7.6 Express Duties Only. The Custodian shall have no duties or obligations
whatsoever except such duties and obligations as are specifically set forth in
this Agreement, and no covenant or obligation shall be implied in this Agreement
against the Custodian.
7.7 Cooperation. The Custodian shall cooperate with and supply necessary
information, by Fund, to the entity or entities appointed by the Trust to keep
the books of account of the Funds and/or compute the value of the assets of the
Fund. The Custodian shall take all such reasonable actions as the Trust may from
time to time request to enable the Trust to obtain, from year to year, favorable
opinions from the Trust's independent accountants with respect to the
Custodian's activities hereunder in connection with (a) the preparation of the
Trust's report on Form N-1A and Form N-SAR and any other reports required by the
Securities and Exchange Commission, and (b) the fulfillment by the Trust of any
other requirements of the Securities and Exchange Commission.
7.8 Compliance Policies and Procedures. The Custodian has adopted and
implemented written policies and procedures reasonably designed to prevent the
Funds from violating the Securities Act of 1933, the 1934 Act, the
Xxxxxxxx-Xxxxx Act of 2002, the 1940 Act, the Investment Advisers Act of 1940,
as amended, Title V of the Xxxxx-Xxxxx-Xxxxxx Act, any rules adopted by the
Securities and Exchange Commission under any of these statutes, and the Bank
Secrecy Act.
.
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification. The Trust shall indemnify and hold harmless the
Custodian and any sub-custodian appointed pursuant to Section 3.3 above, and any
nominee of the Custodian or of such sub-custodian from and against any loss,
damage, cost, expense (including attorneys' fees and disbursements), liability
(including, without limitation, liability arising under the Securities Act of
1933, the 1934 Act, the 1940 Act, and any state or foreign securities and/or
banking laws) or claim arising directly or indirectly (a) from the fact that
Securities are registered in the name of any such nominee, or (b) from any
action or inaction by the Custodian or such sub-custodian (i) at the request or
direction of or in reliance on the advice of the Trust, or (ii) upon Proper
Instructions, or (c) generally, from the performance of its obligations under
this Agreement or any sub-custody agreement with a sub-custodian appointed
pursuant to Section 3.3
above or, in the case of any such sub-custodian, from the performance of its
obligations under such sub-custody agreement, provided that neither the
Custodian nor any such sub-custodian shall be indemnified and held harmless from
and against any such loss, damage, cost, expense, liability or claim arising
from the Custodian's or such sub-custodian's negligence, bad faith, willful
misconduct or negligent or willful failure to act.
8.2 Indemnity to be Provided. If the Trust requests the Custodian to take
any action with respect to Securities that may, in the reasonable opinion of the
Custodian, result in the Custodian or its nominee becoming liable for the
payment of money or incurring liability of some other form, the Custodian shall
not be required to take such action until the Trust shall have provided
indemnity therefore to the Custodian in an amount and form satisfactory to the
Custodian.
ARTICLE IX
FORCE MAJEURE
Neither the Custodian nor the Trust shall be liable for any failure or
delay in performance of its obligations under this Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; strikes; epidemics; riots; power
failures; computer failure and any such circumstances beyond its reasonable
control as may cause interruption, loss or malfunction of utility,
transportation, computer (hardware or software) or telephone communication
service; accidents; labor disputes, acts of civil or military authority;
governmental actions; or inability to obtain labor, material, equipment or
transportation; provided, however, that the Custodian in the event of a failure
or delay shall use its best efforts to ameliorate the effects of any such
failure or delay. Notwithstanding the foregoing, the Custodian shall maintain
sufficient disaster recovery procedures to minimize interruptions.
ARTICLE X
EFFECTIVE PERIOD; TERMINATION
10.1 Effective Period. This Agreement shall become effective as of the date
first set forth above and shall continue in full force and effect until May 31,
2007 or until terminated as hereinafter provided.
10.2 Termination. Either party hereto may terminate this Agreement by
giving to the other party a notice in writing specifying the date of such
termination, which shall be not less than ninety (90) days after the date of the
giving of such notice. If a successor custodian shall have been appointed by the
Board of Trustees, the Custodian shall, upon receipt of a notice of acceptance
by the successor custodian, on such specified date of termination (a) deliver
directly to the successor custodian all Securities (other than Securities held
in a Book-Entry System or Securities Depository) and cash then owned by the
Trust and held by the Custodian as custodian, and (b) transfer any Securities
held in a Book-Entry System or Securities Depository to an account of or for the
benefit of the Trust at the successor custodian, provided that the Trust shall
have paid to the Custodian all fees, expenses and other amounts to the payment
or reimbursement of which it shall then be entitled. Upon such delivery and
transfer, the Custodian shall be relieved of all obligations under this
Agreement. The Trust may at any time immediately terminate this Agreement in the
event of the appointment of a conservator or receiver for the Custodian by
regulatory authorities in the State of Ohio or upon the happening of a like
event at the direction of an appropriate regulatory agency or court of competent
jurisdiction.
10.3 Failure to Appoint Successor Custodian. If a successor custodian is
not designated by the Trust on or before the date of termination specified
pursuant to Section 10.2 above, then the Custodian shall have the right to
deliver to a bank or trust company of its own selection, which is (a) a "Bank"
as defined in the 1940 Act, (b) has aggregate capital, surplus and undivided
profits as shown on its then most recent published report of not less than $25
million, and (c) is doing business in New York, New York, all Securities, cash
and other property held by Custodian under this Agreement and to transfer to an
account of or for the Trust at such bank or trust company all Securities of the
Trust held in a Book-Entry System or Securities Depository. Upon such delivery
and transfer, such bank or trust company shall be the successor
custodian under this Agreement and the Custodian shall be relieved of all
obligations under this Agreement. If, after reasonable inquiry, Custodian cannot
find a successor custodian as contemplated in this Section 10.3, then Custodian
shall have the right to deliver to the Trust all Securities and cash then owned
by the Trust and to transfer any Securities held in a Book-Entry System or
Securities Depository to an account of or for the Trust. Thereafter, the Trust
shall be deemed to be its own custodian with respect to the Trust and the
Custodian shall be relieved of all obligations under this Agreement.
ARTICLE XI
COMPENSATION OF CUSTODIAN
In consideration of the services to be rendered pursuant to this Agreement,
the Trust shall pay the Custodian in accordance with the Fee Schedule annexed
hereto as Schedule B
In addition, the Trust shall be responsible for and shall reimburse the
Custodian for all reasonable out-of-pocket costs and expenses actually paid by
the Custodian in connection with this Agreement, including (without limiting the
generality of the foregoing) all brokerage fees and costs and transfer taxes
incurred in connection with the purchase, sale or disposition of property, and
all income taxes or other taxes of any kind whatsoever which may be levied or
assessed under existing or future laws upon or in respect to the property, and
all other similar expenses related to the administration of the accounts
incurred by the Custodian in the performance of its duties hereunder (including
reasonable attorney's fees and expenses).
Fees and reimbursement for costs and expenses shall be paid monthly. The
Custodian will submit an itemized statement to the Trust each month. In the
event the Custodian does not receive such payment within sixty (60) days of the
date of such statement, the Custodian is hereby authorized to debit the Trust's
cash accounts for such fees, costs and expenses.
A compensating balance arrangement will be in place for each Custody
Account for the Trust. Cash balance credits will be calculated daily in the
Custody Account for each Fund. The monthly aggregate cash balance credit will
offset the monthly aggregate overdraft balances. The net aggregate credit or
overdraft balance amount will be applied to the monthly custody fee invoice for
each Fund. No more than one months' custody fee can be offset by any month's net
cash balance credit.
ARTICLE XII
LIMITATION OF LIABILITY
The Trust is a business trust organized under the laws of the Commonwealth
of Massachusetts and under a Declaration of Trust, to which reference is hereby
made a copy of which is on file at the office of Secretary of State of
Massachusetts as required by law, and to any and all amendments thereto so filed
or hereafter filed. The obligations of the Trust entered into in the name of the
Trust or on behalf thereof by any of the Trustees, officers, employees or agents
are made not individually, but in such capacities, and are not binding upon any
of the Trustees, officers, employees, agents or shareholders of the Trust or the
Funds personally, but bind only the assets of the Trust, and all persons dealing
with any of the Funds of the Trust must look solely to the assets of the Trust
belonging to such Fund for the enforcement of any claims against the Trust.
ARTICLE XIII
NOTICES
Unless otherwise specified herein, all demands, notices, instructions, and
other communications to be given hereunder shall be in writing and shall be sent
or delivered to The receipt at the address set forth after its name herein
below:
To the Trust:
Fifth Third Funds
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: ___________________
Telephone:
Facsimile:
To the Custodian:
Fifth Third Bank
Global Securities Services
Mail Drop 1090CC
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as either party shall have provided to the other by
notice given in accordance with this Article XIII. Writing shall include
transmission by or through teletype, facsimile, central processing unit
connection, on-line terminal and magnetic tape.
ARTICLE XIV
MISCELLANEOUS
14.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio without regards to conflicts of
law principles.
14.2 References to Custodian. The Trust shall not circulate any printed
matter which contains any reference to Custodian without the prior written
approval of Custodian, excepting printed matter contained in the prospectus or
statement of additional information or its registration statement for the Trust
and such other printed matter as merely identifies Custodian as custodian for
the Trust. The Trust shall submit printed matter requiring approval to Custodian
in draft form, allowing sufficient time for review by Custodian and its counsel
prior to any deadline for printing.
14.3 No Waiver. No failure by either party hereto to exercise and no delay
by such party in exercising, any right hereunder shall operate as a waiver
thereof. The exercise by either party hereto of any right hereunder shall not
preclude the exercise of any other right, and the remedies provided herein are
cumulative and not exclusive of any remedies provided at law or in equity.
14.4 Amendments. This Agreement may be amended from time to time in whole
or in part. No amendment or modification of this Agreement shall become
effective until expressed by an instrument in writing duly executed by the
Custodian and the Trust.
14.5 Counterparts. This Agreement may be executed in one or more
counterparts and by the parties hereto on separate counterparts, each of which
shall be deemed an original but all of which together shall constitute but one
and the same instrument.
14.6 Severability. If any provision of this Agreement shall be invalid,
illegal or unenforceable in any respect under any applicable law, the validity,
legality and enforceability of the remaining provisions shall not be affected or
impaired thereby.
14.7 Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns. This Agreement shall not be
assignable by either party hereto without the written consent of the other party
hereto.
14.8 Headings. The headings of sections in this Agreement are for
convenience of reference only and shall not affect the meaning or construction
of any provision of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed and delivered in its name and on its behalf by its representatives
thereunto duly authorized, all as of the day and year first above written.
FIFTH THIRD FUNDS
By:______________
Its:______________
FIFTH THIRD BANK
By:_______________
Its:______________
Dated: ____________, 2006
EXHIBIT A
TO THE CUSTODY AGREEMENT BETWEEN
FIFTH THIRD FUNDS
AND FIFTH THIRD BANK
_____________, 2006
Name of Fund Date
----------- ----
[PLEASE INSERT LISTING]
FIFTH THIRD FUNDS
By: _______________________
Its:_______________________
FIFTH THIRD BANK
By: _______________________
Its: ______________________
Dated: _______________ , 2006
EXHIBIT B
TO THE CUSTODY AGREEMENT BETWEEN
FIFTH THIRD FUNDS
AND FIFTH THIRD BANK
______________, 2006
AUTHORIZED PERSONS
Set forth below are the names and specimen signatures of the persons
authorized by the Trust to Administer each Custody Account.
Name Signature
------------------------------------- ------------------------------------
------------------------------------- ------------------------------------
------------------------------------- ------------------------------------
------------------------------------- ------------------------------------
------------------------------------- ------------------------------------
------------------------------------- ------------------------------------
SIGNATURE RESOLUTION
RESOLVED, That all of the following officers of _______________________and any
of them, namely the Chairman, President, Vice President, Secretary and
Treasurer, are hereby authorized as signers for the conduct of business for an
on behalf of the Funds with FIFTH THIRD BANK:
CHAIRMAN
---------------------------------------- ---------------------
PRESIDENT
---------------------------------------- ---------------------
VICE PRESIDENT
---------------------------------------- ---------------------
VICE PRESIDENT
---------------------------------------- ---------------------
VICE PRESIDENT
---------------------------------------- ---------------------
VICE PRESIDENT
---------------------------------------- ---------------------
TREASURER
---------------------------------------- ---------------------
SECRETARY
---------------------------------------- ---------------------
In addition, the following Assistant Treasurer is authorized to sign on behalf
of the Trust for the purpose of effecting securities transactions:
ASSISTANT TREASURER
---------------------------------------- -----------------
The undersigned officers of ______________________hereby certify that the
foregoing is within the parameters of a Resolution adopted by Trustees of the
Trust in a meeting held ______________, 2005, directing and authorizing
preparation of documents and to do everything necessary to effect the Custody
Agreement between __________________________and FIFTH THIRD BANK.
By:__________________________________________
Its:__________________________________________
By:__________________________________________
Its:__________________________________________