EXHIBIT 23(g)(4)
FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT, made as of April __, 2002, between MARKET STREET FUND (the
"Trust") and THE FIFTH THIRD BANK ("Fifth Third").
W I T N E S S E T H :
WHEREAS, the Trust desires to appoint Fifth Third as a Foreign Custody
Manager on the terms and conditions contained herein;
WHEREAS, Fifth Third desires to serve as a Foreign Custody Manager and
perform the duties set forth herein on the terms and conditions contained
herein;
NOW, THEREFORE, in consideration of the mutual promises hereinafter
contained in this Agreement, the Trust and Fifth Third 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. Capitalized terms used in the Agreement and not otherwise
defined in the Agreement shall have the meanings given such terms in the Rule.
2. "Board" shall mean the board of directors or board of
trustees, as the case may be, of the Trust.
3. "Eligible Foreign Custodian" shall have the meaning provided
in the rule, except that it shall not include any Securities Depository the use
of which is mandatory (i) by law or regulation, or (ii) because securities
cannot be withdrawn from such Securities Depository, or (iii) because
maintaining securities outside such Securities Depository is not consistent with
prevailing custodial practices.
4. "Monitoring System" shall mean a system established by Fifth
Third to fulfill the Responsibilities specified in clauses (1)(d) and (1)(e) of
Article III of this Agreement.
5. "Responsibilities" shall mean the responsibilities delegated
to Fifth Third as a Foreign Custody Manager with respect to each Specified
Country, as such responsibilities are more fully described in Article III of
this Agreement.
6. "Rule" shall mean Rule 17f-5 under the Investment Company Act
of 1940, as amended, as such Rule became effective on June 16, 1997.
7. "Specified Country" shall mean each country listed on Schedule
A attached hereto and each country, other than United States, constituting the
primary market for a security with respect to which the Trust has given
settlement instruction to The Fifth Third Bank as custodian (the "Custodian")
under its Custody Agreement with the Trust.
ARTICLE II
FIFTH THIRD AS FOREIGN CUSTODY MANAGER
1. The Trust on behalf of its Board hereby delegates to Fifth
Third with respect to each Specified Country the Responsibilities.
2. Fifth Third accepts the Board's delegation of Responsibilities
with respect to each Specified Country and agrees in performing the
Responsibilities as a Foreign Custody Manager to exercise reasonable care,
prudence and diligence such as a person having responsibility for the
safekeeping of the Trust's assets would exercise.
3. Fifth Third shall provide to the Board, no later than 15 days
after the end of each calendar quarter, written reports notifying the Board of
the placement of assets of the Trust with a particular Eligible Foreign
Custodian within a Specified Country selected by Fifth Third and of any material
change in the Arrangements with respect to assets of the Trust with any such
Eligible Foreign Custodian.
ARTICLE III
RESPONSIBILITIES
1. Fifth Third shall with respect to each Specified Country and
each Eligible Foreign Custodian selected by Fifth Third: (a) determine that
assets of the Trust held by such Eligible Foreign Custodian will be subject to
reasonable care, based on the standards applicable to custodians in the relevant
market in which such Eligible Foreign Custodian operates, after considering all
factors relevant to the safekeeping of such assets, including, without
limitation, those contained in Section (c)(1) of the Rule; (b) determine that
the Trust's foreign custody arrangements with each Eligible Foreign Custodian
selected by Fifth Third are governed by a written contract with the Custodian
(or, in the case of an Eligible Foreign Custodian selected by Fifth Third which
is a Securities Depository, by such a contract, by the rules or established
practices or procedures of the Securities Depository, or by any combination of
the foregoing) which will provide reasonable care for the Trust's assets based
on the standards specified in paragraph (c)(1) of the Rule; (c) determine that
each contract described in the preceding clause (b) (or, in the case of an
Eligible Foreign Custodian selected by Fifth Third which is a Securities
Depository, by such a contract, by the rules or established practices or
procedures of the Securities Depository, or by any combination of the foregoing)
shall include the provisions specified in paragraph (c)(2)(i)(A) through (F) of
the Rule or , alternatively, in lieu of any or all of such (c)(2)(i)(A) through
(F) provisions, such other provisions as Fifth Third determines will provide, in
their entirety, the same or a greater level of care and protection for the
assets of the Trust as such specified provisions; (d) monitor pursuant to the
Monitoring System the appropriateness of maintaining the assets of the Trust
with a particular Eligible Foreign Custodian selected by Fifth Third and the
contract governing the arrangement; and (e) advise the Trust whenever an
arrangement described in the preceding clause (d) no longer meets the
requirements of the Rule that the Trust must withdraw its assets from such
Eligible Foreign Custodian as soon as reasonably practicable. The Trust agrees
that Fifth Third may employ, consult and obtain advice from suitable advisors,
agents and third parties as Fifth Third deems appropriate in its sole discretion
in connection with actions taken by Fifth Third hereunder to fulfill the
Responsibilities.
2. For purposes of clause (d) of the preceding Section 1 of this
Article, appropriateness shall not include, nor be deemed to include, any risks
associated with investment in a particular country. Maintaining assets of the
Trust with an Eligible Foreign Custodian selected by Fifth Third will on any day
be considered appropriate; if Fifth Third on such day would select such Eligible
Foreign custodian in accordance with Articles II and III of this Agreement.
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ARTICLE IV
REPRESENTATIONS
1. The Trust hereby represents that: (a) this Agreement has been
duly authorized, executed and delivered by the Trust, constitutes a valid and
legally binding obligation of the Trust enforceable in accordance with its
terms, and no statute, regulation, rule, order, judgment or contract binding on
the Trust prohibits the Trust's execution or performance of this Agreement; (b)
this Agreement has been approved and ratified by the Board at a meeting duly
called and at which a quorum was at all times present; and (c) the Board has
considered the risks associated with investment in each Specified Country listed
on Schedule A or has delegated such risk assessment to the Fund's investment
adviser or to one or more subadvisers of the Fund's portfolios and the Board or
its delegate will have considered such risks prior to any settlement
instructions being given to the Custodian with respect to any other Specified
Country.
2. Fifth Third hereby represents that: (a) Fifth Third is duly
organized and existing under the laws of the State of Ohio, with full power to
carry on its businesses as now conducted, and to enter into this Agreement and
to perform its obligations hereunder; (b) this Agreement has been duly
authorized, executed and delivered by Fifth Third, constitutes a valid and
legally binding obligation of Fifth Third enforceable in accordance with its
terms, and no statute, regulation, rule, order, judgment or contract binding on
Fifth Third prohibits Fifth Third's execution or performance of this Agreement;
and (c) Fifth Third has established the Monitoring System.
ARTICLE V
CONCERNING FIFTH THIRD
1. Fifth Third shall not be liable for any costs, expenses,
damages, liabilities or claims, including attorneys' and accountants' fees,
sustained or incurred by, or asserted against, the Trust except to the extent
the same arises out of the failure of Fifth Third to exercise the care, prudence
and diligence required by Section 2 of Article II hereof. In no event shall
Fifth Third be liable to the Trust, the Board, or any third party for special,
indirect or consequential damages, or for lost profits or loss of business,
arising in connection with this Agreement.
2. The Trust agrees to indemnify Fifth Third and holds it
harmless from and against any and all costs, expenses, damages, liabilities or
claims, including attorneys' and accountants' fees, sustained or incurred by or
asserted against Fifth Third by reason or as a result of any action or inaction,
arising out of Fifth Third's performance hereunder, provided that the Trust
shall not indemnify Fifth Third to the extent any such costs, expenses, damages,
liabilities or claims arise out of Fifth Third's failure to exercise the
reasonable care, prudence and diligence required by Section 2 of Article II
hereof.
3. Fifth Third shall only have such duties as are expressly set
forth herein. Without limiting the generality of the foregoing, in no event
shall Fifth Third be liable for any risks associated with investments in a
particular country, but shall only be liable for the risks associated in placing
assets of the Trust with a particular Eligible Foreign custodian selected by
Fifth Third.
ARTICLE VI
MISCELLANEOUS
1. This Agreement constitutes the entire agreement between the
Trust and Fifth Third, and no provision in the Custody Agreement between the
Trust and the Custodian shall affect the duties and obligations of Fifth Third
hereunder, nor shall any provision in this Agreement affect the duties or
obligations of the Custodian under the Custody Agreement.
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2. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to Fifth Third, shall be sufficiently
given if received by it at its offices at Fifth Third Center, 000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxx 00000, Attention: Mutual Trust Client Services, or at such
other place as Fifth Third may from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Trust shall be sufficiently given
if received by it at its offices at Market Street Fund, 0000 Xxxxxxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxx 00000, Attention: President, or at such other
place as the Trust may from time to time designate in writing.
4. In case any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected thereby. This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties. This Agreement shall
extend to and be binding upon the parties hereto, and their respective
successors and assigns; provided, however, that this Agreement shall not be
assignable by either party without the written consent of the other.
5. This Agreement shall be construed in accordance with the
internal substantive laws of the State of Ohio, without regard to conflicts of
laws principles thereof. The Trust and Fifth Third each hereby irrevocably waive
any and all rights to a trial by jury in any legal proceeding arising out of or
relating to this Agreement.
6. The parties hereto agree that in performing hereunder, Fifth
Third is acting solely on behalf of the Trust and no contractual or service
relationship shall be deemed to be established hereby between Fifth Third and
any other person.
7. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but such counterparts shall,
together, constitute only one instrument.
8. This Agreement shall terminate simultaneously with the
termination of the Custody Agreement between the Trust and the Custodian, and
may otherwise be terminated by either party giving to the other party a notice
in writing specifying the date of such termination, which shall be not less than
thirty (30) days after the date of such notice.
9. In consideration of the service provided by Fifth Third hereunder,
the Trust shall pay to Fifth Third such compensation and out-of-pocket expenses
as may be agreed upon from time to time.
IN WITNESS WHEREOF, the Trust and Fifth Third have caused this
Agreement to be executed by their respective officers, thereunto duly
authorized, as of the date first above written.
MARKET STREET FUND
By:_______________________________
Title:____________________________
THE FIFTH THIRD BANK
By:_______________________________
Title:____________________________
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SCHEDULE 1
SPECIFIED COUNTRIES
THE BANK OF NEW YORK
GLOBAL CUSTODY NETWORK
The Bank of New York's network of subcustodians extends to 101 markets
worldwide, the largest number of markets offered by any custodian. Each bank
must meet a set of stringent performance standards prior to selection, which are
reexamined during semi-annual reviews and regular on-site visits, ensuring that
our clients are uniformly provided with the best subcustodian in each market.
COUNTRY/ COUNTRY/
MARKET SUBCUSTODIAN(S) MARKET SUBCUSTODIAN(S)
ARGENTINA Banco Rio de la Plata INDIA HSBC / Deutsche Bank AG
AUSTRALIA National Australia Bank Ltd. INDONESIA HSBC
AUSTRIA Bank Austria AG IRELAND Allied Irish Banks, plc
BAHRAIN HSBC Bank Middle East ISRAEL Bank Leumi LE - Israel B.M.
BANGLADESH Standard Chartered Bank ITALY IntesaBCI S.p.A /
BNP Paribas Securities Services
BELGIUM Banque Bruxelles Xxxxxxx XXXXX COAST Societe Generale - Abidjan
BENIN Societe Generale de Banques en Cote JAMAICA CIBC Trust & Merchant Bank Jamaica
d'Ivoire Ltd.
BERMUDA Bank of Bermuda Limited JAPAN The Bank of Tokyo-Mitsubishi Limited/
The Fuji Bank, Limited
BOLIVIA Citibank, X.X. XXXXXX HSBC Bank Middle East
BOTSWANA Barclays Bank of Botswana Ltd. KAZAKHSTAN ABN/AMRO
BRAZIL BankBoston, N.A. KENYA Barclays Bank of Kenya Ltd.
BULGARIA ING Bank LATVIA Hansabanka Limited
BURKINA FASO Societe Generale de Banques en Cote LEBANON HSBC Bank Middle East
d'Ivoire
CANADA Royal Bank of Canada LITHUANIA Vilniaus Bankas
CHILE BankBoston, N.A. LUXEMBOURG Banque et Caisse d'Epargne de l'Etat
CHINA Standard Chartered Bank MALAYSIA HongKong Bank Malaysia Berhad
COLOMBIA Cititrust Colombia S.A. MALI Societe Generale de Banques en Cote
d'Ivoire
COSTA RICA Banco BCT MALTA HSBC Bank Malta p.l.c.
CROATIA Privredna Banka Zagreb d.d. MAURITIUS HSBC
CYPRUS Bank of Cyprus MEXICO Banco Nacional de Mexico
CZECH REPUBLIC Ceskoslovenska Obchodni Banka A.S. MOROCCO Banque Commerciale du Maroc
DENMARK Danske Bank NAMIBIA Stanbic Bank Namibia Limited
ECUADOR Citibank, N.A. NASDAQ EUROPE Banque Bruxelles Xxxxxxx
EGYPT Citibank, N.A. NETHERLANDS Fortis Bank (Nederland) N.V.
ESTONIA Hansabank Limited NEW ZEALAND National Australia Bank Ltd.
(National Nominees Ltd.)
EUROMARKET Clearstream NIGER Societe Generale de Banques en Cote
d'Ivoire
EUROMARKET Euroclear NIGERIA Stanbic Bank Nigeria Limited
FINLAND Nordea Bank Finland plc NORWAY Den norske Bank ASA
FRANCE BNP Paribas Securities Services / OMAN HSBC Bank Middle East
Credit Agricole Indosuez
GERMANY Dresdner Bank AG PAKISTAN Standard Chartered Bank
GHANA Barclays Bank of Ghana Ltd. PALESTINIAN HSBC Bank Middle East
AUTONOMOUS AREA
GREECE BNP Paribas Securities Services PANAMA BankBoston, N.A.
GUINEA BISSAU Societe Generale de Banques en Cote PERU Citibank, N.A.
d'Ivoire
HONG KONG HSBC PHILIPPINES HSBC
HUNGARY HVB Bank Hungary Rt. POLAND Bank Handlowy W Warszawie S.A.
ICELAND Landsbanki Islands PORTUGAL Banco Comercial Portugues
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COUNTRY/ COUNTRY/
MARKET SUBCUSTODIAN(S) MARKET SUBCUSTODIAN(S)
QATAR HSBC Bank Middle East THAILAND Standard Chartered Bank/
Bangkok Bank Public Company Ltd.
ROMANIA ING Bank TOGO Societe Generale de Banques en Cote
d'Ivoire
RUSSIA Vneshtorgbank (Min Fin Bonds only)/ TRINIDAD & TOBAGO Republic Bank Limited
Credit Suisse First Boston AO
SENEGAL Societe Generale de Banques en Cote TUNISIA Banque Internationale Arabe de Tunisie
d'Ivoire
SINGAPORE United Overseas Bank Ltd/ TURKEY Osmanli Bankasi A.S. (Ottoman Bank)
The Development Bank of Singapore Ltd.
SLOVAK REPUBLIC Ceskoslovenska Obchodni Banka, a.s. U.A.E. HSBC Bank Middle East, Dubai
SLOVENIA Bank Austria Creditanstalt d.d. UKRAINE ING Bank
Ljubljana
SOUTH AFRICA The Standard Bank of South Africa UNITED KINGDOM The Bank of New York /
Limited Xxx Xxxxxxxxxx & Xxxxxxxx Xxxxxx (XXX)
XXXXX XXXXX Standard Chartered Bank UNITED STATES The Bank of New York
SPAIN Banco Bilbao Vizcaya Argentaria S.A. URUGUAY BankBoston, N.A.
(BBVA) /
Banco Santander Central Hispano (BSCH)
SRI LANKA Standard Chartered Bank VENEZUELA Citibank, N.A.
SWAZILAND Standard Bank Swaziland Ltd. VIETNAM HSBC
SWEDEN Skandinaviska Enskilda Banken ZAMBIA Barclays Bank of Zambia Ltd.
SWITZERLAND Credit Suisse First Boston ZIMBABWE Barclays Bank of Zimbabwe Ltd.
TAIWAN HSBC
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