Exhibit g(i)B
[EXECUTED VERSION]
AMENDMENT TO CUSTODY AGREEMENT
AMENDMENT dated May 18, 1999 to the Custody Agreement dated December 12,
1989 (the "Custody Agreement"), by and between Fifth Third Funds, a business
trust organized under the laws of The Commonwealth of Massachusetts (the
"Trust"), and Fifth Third Bank, a banking company organized under the laws of
the State of Ohio (the "Custodian").
W I T N E S S E T H
WHEREAS, the Trust is an open-end investment company registered under the
Investment Company Act of 1940, as amended (the "1940 Act"), and the Custodian
is a bank having the qualifications prescribed in Section 26(a)(i) of the 1940
Act;
WHEREAS, the Custodian currently holds as custodian cash and Securities of
each of the separate series of the Trust (the "Funds");
WHEREAS, the Trust and the Bank desire to amend the Custody Agreement to
permit the Bank to (a) appoint certain banks and trust companies as sub-
custodians and (b) deposit or maintain cash and Securities of the Funds with
certain securities depositories and book-entry systems, all as provided in this
Amendment;
NOW, THEREFORE, in consideration of the mutual agreements herein made, the
Trust and the Custodian hereby agree as follows:
1. Article I, Section 1.3 is hereby deleted in its entirety and replaced with
the following:
"1.3 'Book-Entry System' shall mean any person who meets the
qualifications of Rule 17f-4(b)(2) under the 1940 Act or any book-entry system
that is permitted to accept and maintain the securities and similar investments
of a registered management company under the 1940 Act and the rules thereunder."
2. Article I, Section 1.10 is hereby deleted in its entirety and replaced with
the following:
"1.10 'Securities Depository' shall mean any person who meets the
qualifications of Rule 17f-4(b)(1) under the 1940 Act or any securities
depository that is permitted to accept and maintain the securities and similar
investments of a registered management company under the 1940 Act and the rules
thereunder."
3. Article III, Section 3.3 is hereby deleted in its entirety and replaced
with the following:
"3.3 Appointment of Sub-Custodians. In its discretion, the Custodian may
appoint, and at any time remove, any person who 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 the
Custodian may determine, and the Custodian may also open and maintain one or
more accounts with such person (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 person hereunder shall not relieve the Custodian of any
of its obligations or liabilities under this Agreement."
4. All defined terms not otherwise defined or amended herein shall have the
meanings ascribed to them in the Custody Agreement.
5. It is expressly agreed that the obligations of the Trust hereunder shall not
be binding upon any of the Trustees, shareholders, nominees, officers, agents or
employees of the Trust personally but shall bind only the trust property of the
Trust as provided in the Trust's Agreement and Declaration of Trust dated
September 15, 1988, as from time to time amended. The execution and delivery of
this Amendment have been authorized by the Trustees and this Amendment has been
signed and delivered by an authorized officer of the Trust, acting as such, and
neither such authorization by the Trustees nor such execution and delivery by
such officer shall be deemed to have been made by any of them individually or to
impose any liability on any of them personally, but shall bind only the trust
property of the Trust as provided in the above-mentioned Agreement and
Declaration of Trust.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment 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 written above.
FIFTH THIRD FUNDS
By:_____________________________
Its:_____________________________
FIFTH THIRD BANK
By:_____________________________
Its:_____________________________
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Exhibit g(ii)
CUSTODY AGREEMENT
Agreement made as of this day of , 1999,
between FIFTH THIRD BANK (the "Primary Custodian"), as custodian for Fifth Third
Funds, a Massachusetts business trust organized and existing under the laws of
The Commonwealth of Massachusetts (the "Trust") having the Series listed on
Schedule I attached hereto (each a "Fund"), and THE BANK OF NEW YORK, a New York
corporation authorized to do a banking business, having its principal office and
place of business at Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter
called the "Custodian").
W I T N E S S E T H :
WHEREAS, the Primary Custodian acts as the custodian for the securities and
money of each Fund;
WHEREAS, the Primary Custodian desires to appoint the Custodian as a sub-
custodian of certain securities and money of the Funds to be held outside of the
United States, but not as sub-custodian of securities and money to be held
within the United States; and
WHEREAS, the Custodian desires to serve as such sub-custodian of such
securities and money on the terms and conditions hereinafter contained in this
Custody Agreement;
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, the Primary Custodian and the Custodian 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. "1940 Act" shall mean the Investment Company Act of 1940, as amended,
and the rules and regulations promulgated thereunder.
2. "Authorized Persons" shall be deemed to include any person, whether or
not such person is an officer or employee of the Primary Custodian, listed in
the Certificate annexed hereto as Appendix A or such other Certificate as may be
received by the Custodian from the Primary Custodian time to time.
3. "Certificate" shall mean any notice, instruction, or other instrument in
writing, authorized or required by this Agreement to be given to the Custodian
which is actually received by the Custodian and signed by any two Authorized
Persons, and the term Certificate shall also include Instructions.
4. "Composite Currency Unit" shall mean the European Currency Unit or any
other composite unit consisting of the aggregate of specified amounts of
specified Currencies as such unit may be constituted from time to time.
5. "Currency" shall mean money denominated in a lawful currency of any
country or the European Currency Unit.
6. "Foreign Sub-Custodian" shall have the meaning assigned in Article VIII.
7. "FX Transaction" shall mean any transaction for the purchase by one
party of an agreed amount in one Currency against the sale by it to the other
party of an agreed amount in another Currency.
8. "Instructions" shall mean instructions communications transmitted by
electronic or telecommunications media, including S.W.I.F.T., computer-to-
computer interface, dedicated transmission line, facsimile transmission signed
by an Authorized Person and tested telex.
9. "Oral Instructions" shall mean verbal instructions actually received by
the Custodian from an Authorized Person or from a person reasonably believed by
the Custodian to be an Authorized Person.
10. "Security" shall mean any of the following, but only if its primary
market is outside the United States: money market securities, call options, put
options, stock index options, stock index futures contracts, stock index futures
contract options, financial futures contracts, financial futures contract
options, reverse repurchase agreements, repurchase agreements, common stocks and
other securities having characteristics similar to common stocks, preferred
stocks, debt obligations issued by state or municipal governments and by public
authorities, (including, without limitation, general obligation bonds, revenue
bonds, industrial bonds and industrial development bonds), bonds, debentures,
notes, mortgages or other obligations, and any certificates, receipts, warrants
or other instruments representing rights to receive, purchase, sell or subscribe
for the same, or evidencing or representing any other rights or interest
therein.
11. "Shares" shall mean the shares of beneficial interest of the Trust
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ARTICLE II.
APPOINTMENT OF CUSTODIAN
1. The Primary Custodian hereby constitutes and appoints the Custodian as
custodian of the Securities and money at any time owned by or in the possession
of the Trust on behalf of a Fund and held outside the United States during the
period of this Agreement.
2. The Custodian hereby accepts appointment as such custodian and agrees to
perform the duties thereof as hereinafter set forth.
ARTICLE III.
CUSTODY OF CASH AND SECURITIES
1. (a) The Primary Custodian will deliver or cause to be delivered to the
Custodian or, at the Custodian's direction, any Foreign Sub-Custodian all
Securities and all money owned or in the possession of the Trust on behalf of
each Fund and held outside the United States at any time during the period of
this Agreement, and shall specify with respect to such Securities and money the
Fund owning the same. The Custodian shall segregate, keep and maintain the
assets of the Funds separate and apart. The Custodian will not be responsible
for any Securities and money not actually received by it or by any Foreign Sub-
Custodian. The Custodian and any Foreign Sub-Custodian will be entitled to
reverse any credits made on a Fund's behalf where such credits have been
previously made and money is not finally collected. (b) The Custodian shall
hold all such Securities specifically allocated to a Fund which are not held by
a Foreign Sub-Custodian in a separate account in the name of such Fund
physically segregated at all times from those of any other person or persons,
and shall segregate on its books and records any cash so held. Securities and
money deposited with any Foreign Sub-Custodian will be represented in accounts
which include only assets held by the Custodian for customers, including, but
not limited to, accounts in which the Custodian acts in a fiduciary or
representative capacity and will be specifically allocated on the Custodian's
books to the separate account for the applicable Series. The Custodian shall
identify on its books as belonging to each Fund the Foreign Securities of such
Fund held by each Foreign Sub-Custodian.
2. The Custodian directly or through a Foreign Sub-Custodian shall
establish and maintain separate accounts, in the name of each Fund, and shall
credit to the separate account for each Fund all money received by it for the
account of such Fund. Money credited to a separate account for a Fund shall be
disbursed by the Custodian only:
(a) as hereinafter provided; or
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(b) pursuant to Certificates setting forth the name and address of the
person to whom the payment is to be made, the Fund account from which payment is
to be made and the purpose for which payment is to be made.
3. Promptly after the close of business on each day, the Custodian shall
furnish the Primary Custodian with confirmations and a summary, on a per Fund
basis, of all transfers to or from the account of the Fund, either hereunder or
with any Foreign Sub-Custodian. Where Securities are transferred to the account
of the Fund, the Custodian shall also by book-entry or otherwise identify as
belonging to such Fund a quantity of Securities in a fungible bulk of Securities
registered in the name of the Custodian (or its nominee) or shown on the
Custodian's account on the books of any Foreign Sub-Custodian. At least monthly
and from time to time, the Custodian shall furnish the Primary Custodian with a
detailed statement, on a per Fund basis, of the Securities and money held by the
Custodian and each Foreign Sub-Custodian.
4. All Securities held by the Custodian or any Foreign Sub-Custodian
hereunder, which are issued or issuable only in bearer form, shall be held by
the Custodian or any Foreign Sub-Custodian in that form; all other Securities
held hereunder may be registered in the name of (a) the Trust on behalf of a
Fund, (b) the Custodian or any Foreign Sub-Custodian on behalf of the Trust or a
Fund, or (c) their successor or successors, or their nominee or nominees on
behalf of the Trust or a Fund. The Primary Custodian agrees to 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 such nominee any
Securities which it may hold hereunder and which may from time to time be
registered in the name of a Fund.
5. Except as otherwise provided in this Agreement and unless otherwise
instructed to the contrary by a Certificate, the Custodian by itself, or through
the use of a Foreign Sub-Custodian shall with respect to all Securities held for
the Fund hereunder in accordance with preceding paragraph 4:
(a) collect all income, dividends and distributions due or payable;
(b) give notice to the Primary Custodian and present for payment and
collect the amount payable upon such Securities which are called, but only if
either (i) the Custodian receives a written notice of such call, or (ii) notice
of such call appears in one or more of the publications listed in Appendix B
annexed hereto, which may be amended at any time by the Custodian without the
prior notification or consent of the Primary Custodian;
(c) present for payment and collect the amount payable upon all
Securities which mature;
(d) surrender Securities in temporary form for definitive Securities;
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(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;
(f) hold directly, or through a Foreign Sub-Custodian, for the account of
a Fund, all rights and similar securities issued with respect to any Securities
held by the Custodian for such Fund hereunder; and
(g) deliver to the Primary Custodian all notices, proxies, proxy
soliciting materials, consents and other written information (including, without
limitation, notices of tender offers and exchange offers, pendency of calls,
maturities of Securities and expiration of rights) relating to Securities held
pursuant to this Agreement which are actually received by the Custodian, such
proxies and other similar materials to be executed by the registered owner (if
Securities are registered otherwise than in the name of a Fund), but without
indicating the manner in which proxies or consents are to be voted.
6. Upon receipt of a Certificate and not otherwise, the Custodian, directly
or through the use of a Foreign Sub-Custodian, shall:
(a) execute and deliver to such persons as may be designated in such
Certificate proxies, consents, authorizations, and any other instruments whereby
the authority of the Trust as owner of any Securities held by the Custodian
hereunder for such Fund may be exercised;
(b) deliver any Securities held by the Custodian hereunder for the Trust
on behalf of a Fund specified in such Certificate in exchange for other
Securities or cash issued or paid in connection with the liquidation,
reorganization, refinancing, merger, consolidation or recapitalization of any
corporation, or the exercise of any conversion privilege and receive and hold
hereunder specifically allocated to the Trust on behalf of such Fund any cash or
other Securities received in exchange;
(c) deliver any Securities held by the Custodian hereunder for the Trust
on behalf of the Fund specified in such Certificate to any protective committee,
reorganization committee or other person in connection with the reorganization,
refinancing, merger, consolidation, recapitalization or sale of assets of any
corporation, and receive and hold hereunder specifically allocated to such Fund
such certificates of deposit, interim receipts or other instruments or documents
as may be issued to it to evidence such delivery;
(d) make such transfers or exchanges of the assets of the Trust on
behalf of a Fund specified in such Certificate, and take such other steps as
shall be stated in such Certificate to be for the purpose of effectuating any
duly authorized plan of liquidation, reorganization, merger, consolidation or
recapitalization of the Fund; and
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(e) present for payment and collect the amount payable upon Securities
not described in preceding paragraph 5(b) of this Article which may be called as
specified in the Certificate.
ARTICLE IV.
PURCHASE AND SALE OF SECURITIES
1. Promptly after each purchase of Securities by the Trust on behalf of a
Fund, the Primary Custodian shall deliver to the Custodian (i) with respect to
each purchase of Securities which are not normally required to be settled on the
same day as such purchase, a Certificate, and (ii) with respect to each other
purchase of Securities, a Certificate or Oral Instructions, specifying with
respect to each such purchase: (a) the Fund to which such Securities are to be
specifically allocated; (b) the name of the issuer and the title of the
Securities; (c) the number of shares or the principal amount purchased and
accrued interest, if any; (d) the date of purchase and settlement; (e) the
purchase price per unit; (f) the total amount payable upon such purchase; (g)
the name of the person from whom or the broker through whom the purchase was
made, and the name of the clearing broker, if any; and (h) the name of the
broker to whom payment is to be made. The Custodian shall, upon receipt of
Securities purchased by or for such Fund, pay to the broker specified in the
Certificate out of the money held for the account of such Fund the total amount
payable upon such purchase, provided that the same conforms to the total amount
payable as set forth in such Certificate or Oral Instructions.
2. Promptly after each sale of Securities by the Trust on behalf of a Fund,
the Primary Custodian shall deliver to the Custodian (i) with respect to each
sale of Securities which are not normally required to be settled on the same day
as such sale, a Certificate, and (ii) with respect to each other sale of
Securities, a Certificate or Oral Instructions, in either case, specifying with
respect to each such sale: (a) the Fund to which such Securities were
specifically allocated; (b) the name of the issuer and the title of the
Security; (c) the number of shares or principal amount sold, and accrued
interest, if any; (d) the date of sale; (e) the sale price per unit; (f) the
total amount payable to the Fund upon such sale; (g) the name of the broker
through whom or the person to whom the sale was made, and the name of the
clearing broker, if any; and (h) the name of the broker to whom the Securities
are to be delivered. The Custodian shall deliver the Securities specifically
allocated to such Fund to the broker specified in the Certificate against
payment of the total amount payable to the Fund upon such sale, provided that
the same conforms to the total amount payable as set forth in such Certificate
or Oral Instructions.
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ARTICLE V.
LOAN OF PORTFOLIO SECURITIES OF THE FUND
1. Promptly after each loan of portfolio Securities specifically allocated
to a Fund held by the Custodian or a Foreign Sub-Custodian hereunder, the
Primary Custodian shall deliver or cause to be delivered to the Custodian a
Certificate specifying with respect to each such loan: (a) the Fund to which the
loaned Securities are specifically allocated; (b) the name of the issuer and the
title of the Securities, (c) the number of shares or the principal amount
loaned, (d) the date of loan and delivery, (e) the total amount to be delivered
to the Custodian or the Foreign Sub-Custodian against the loan of the
Securities, including the amount of cash collateral and the premium, if any,
separately identified, and (f) the name of the broker, dealer, or financial
institution to which the loan was made. The Custodian shall deliver the
Securities thus designated to the broker, dealer or financial institution to
which the loan was made upon receipt of the total amount designated as to be
delivered against the loan of Securities.
2. Promptly after each termination of the loan of Securities by a Fund, the
Primary Custodian shall deliver or cause to be delivered to the Custodian a
Certificate specifying with respect to each such loan termination and return of
Securities: (a) the Fund which the loaned Securities are specifically allocated;
(b) the name of the issuer and the title of the Securities to be returned, (c)
the number of shares or the principal amount to be returned, (d) the date of
termination, (e) the total amount to be delivered by the Custodian or the
Foreign Sub-Custodian (including the cash collateral for such Securities minus
any offsetting credits as described in said Certificate), and (f) the name of
the broker, dealer, or financial institution from which the Securities will be
returned. The Custodian or the Foreign Sub-Custodian shall receive all
Securities returned from the broker, dealer, or financial institution to which
such Securities were loaned and upon receipt thereof shall pay, out of the money
held for the account of such Fund, the total amount payable upon such return of
Securities as set forth in the Certificate.
ARTICLE VI.
OVERDRAFTS OR INDEBTEDNESS
1. If the Custodian should in its sole discretion advance funds on behalf
of the Trust with respect to any Fund which results in an overdraft because the
money held by the Custodian in the separate account for such Fund shall be
insufficient to pay the total amount payable upon a purchase of Securities
specifically allocated to such Fund, as set forth in a Certificate or Oral
Instructions, or which results in an overdraft in the separate account of such
Fund for some other reason, or if a Fund and/or the Primary Custodian is for any
other reason indebted to the Custodian, including any indebtedness to The Bank
of New York under the Fund's Cash Management and Related Services Agreement
(except a borrowing for investment or for temporary or emergency purposes using
Securities as collateral pursuant to a separate agreement and subject to the
provisions of paragraph 2 of this Article), such overdraft or indebtedness shall
be deemed to be a loan made by the Custodian to such Fund and/or the Primary
Custodian payable
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on demand and shall bear interest from the date incurred at a rate per annum
(based on a 360-day year for the actual number of days involved) equal to 1/2%
over Custodian's prime commercial lending rate in effect from time to time, such
rate to be adjusted on the effective date of any change in such prime commercial
lending rate but in no event to be less than 6% per annum. In order to secure
repayment of an advance of funds made in connection with a purchase of
Securities the Custodian shall have a purchase money security interest in, and a
security entitlement with respect to, all of the Primary Custodian's, the
Trust's and each Fund's right, title and interest in and to the Securities
acquired with such advance (including proceeds thereof). The Custodian shall
with respect to such purchase money security interest be entitled to all the
rights and remedies of a pledgee and secured creditor under applicable laws,
rules or regulations as then in effect. The Custodian, in its sole discretion,
at any time to charge any such overdraft or indebtedness together with interest
due thereon against any balance of account standing to such Fund's and/or the
Primary Custodian's credit on the Custodian's books.
2. The Primary Custodian will cause to be delivered to the Custodian by any
bank (including, if the borrowing is pursuant to a separate agreement, the
Custodian) from which it borrows money for investment or for temporary or
emergency purposes using Securities held by the Custodian hereunder as
collateral for such borrowings, a notice or undertaking in the form currently
employed by any such bank setting forth the amount which such bank will loan to
such Fund against delivery of a stated amount of collateral. The Primary
Custodian shall promptly deliver to the Custodian a Certificate specifying with
respect to each such borrowing: (a) the Fund to which such borrowing relates;
(b) the name of the bank, (c) the amount and terms of the borrowing, which may
be set forth by incorporating by reference an attached promissory note, duly
endorsed by such Fund, or other loan agreement, (d) the time and date, if known,
on which the loan is to be entered into, (e) the date on which the loan becomes
due and payable, (f) the total amount payable to such Fund on the borrowing
date, (g) the market value of Securities to be delivered as collateral for such
loan, including the name of the issuer, the title and the number of shares or
the principal amount of any particular Securities, and (h) a statement
specifying whether such loan is for investment purposes or for temporary or
emergency purposes and that such loan is in conformance with the 1940 Act and
such Fund's registration statement. The Custodian shall deliver on the borrowing
date specified in a Certificate the specified collateral and the executed
promissory note, if any, against delivery by the lending bank of the total
amount of the loan payable, provided that the same conforms to the total amount
payable as set forth in the Certificate. The Custodian may, at the option of the
lending bank, keep such collateral in its possession, but such collateral shall
be subject to all rights therein given the lending bank by virtue of any
promissory note or loan agreement. The Custodian shall deliver such Securities
as additional collateral as may be specified in a Certificate to collateralize
further any transaction described in this paragraph. The Primary Custodian shall
cause all Securities released from collateral status to be returned directly to
the Custodian, and the Custodian shall receive from time to time such return of
collateral as may be tendered to it. In the event that a Certificate fails to
specify the Fund, the name of the issuer, the title and
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number of shares or the principal amount of any particular Securities to be
delivered as collateral by the Custodian, the Custodian shall not be under any
obligation to deliver any Securities.
ARTICLE VII.
INSTRUCTIONS
1. With respect to any software provided by the Custodian to the Primary
Custodian in order to transmit Instructions to the Custodian (the "Software"),
the Custodian grants to the Primary Custodian personal, nontransferable and
nonexclusive license to use the Software solely for the purpose of transmitting
Instructions to, and receiving communications from, the Custodian in connection
with its account(s). The Primary Custodian shall use the Software solely for
its own internal and proper business purposes, and not in the operation of a
service bureau, and agrees not to sell, reproduce, lease or otherwise provide,
directly or indirectly, the Software or any portion thereof to any third party
without the prior written consent of the Custodian. The Primary Custodian
acknowledges that the Custodian and its suppliers have title and exclusive
proprietary rights to the Software, including any trade secrets or other ideas,
concepts, know how, methodologies, or information incorporated therein and the
exclusive rights to any copyrights, trademarks and patents (including
registrations and applications for registration of either) or statutory or legal
protections available with respect thereof. The Primary Custodian further
acknowledges that all or a part of the Software may be copyrighted or
trademarked (or a registration or claim made therefor) by the Custodian or its
suppliers. The Primary Custodian shall not take any action with respect to the
Software inconsistent with the foregoing acknowledgments, nor shall the Primary
Custodian attempt to decompile, reverse engineer or modify the Software. The
Primary Custodian may not copy, sell, lease or provide, directly or indirectly,
any of the Software or any portion thereof to any other person or entity without
the Custodian's prior written consent. The Primary Custodian may not remove any
statutory copyright notice, or other notice including the software or on any
media containing the Software. The Primary Custodian shall reproduce any such
notice on any reproduction of the Software and shall add statutory copyright
notice or other notice to the Software or media upon the Bank's request.
Custodian agrees to provide reasonable training, instruction manuals and access
to Custodian's "help desk" in connection with the Primary Custodian's user
support necessary to use of the Software. At the Primary Custodian's request,
Custodian agrees to permit reasonable testing of the Software by the Primary
Custodian.
2. The Primary Custodian shall obtain and maintain at its own cost and
expense all equipment and services, including but not limited to communications
services, necessary for it to utilize the Software and transmit Instructions to
the Custodian. The Custodian shall not be responsible for the reliability,
compatibility with
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the Software or availability of any such equipment or services or the
performance or nonperformance by any nonparty to this Custody Agreement.
3. The Primary Custodian acknowledges that the Software, all data bases
made available to the Primary Custodian by utilizing the Software (other than
data bases relating solely to the assets of the Primary Custodian and
transactions with respect thereto), and any proprietary data, processes,
information and documentation (other than which are or become part of the public
domain or are legally required to be made available to the public)
(collectively, the "Information"), are the exclusive and confidential property
of the Custodian. The Primary Custodian shall keep the Information confidential
by using the same care and discretion that the Primary Custodian uses with
respect to its own confidential property and trade secrets and shall neither
make nor permit any disclosure without the prior written consent of the
Custodian. Upon termination of this Agreement or the Software license granted
hereunder for any reason, the Primary Custodian shall return to the Custodian
all copies of the Information which are in its possession or under its control
or which the Primary Custodian distributed to third parties. The provisions of
this Article shall not affect the copyright status of any of the Information
which may be copyrighted and shall apply to all Information whether or not
copyrighted.
4. The Custodian reserves the right to modify, at its own expense, the
Software from time to time without prior notice and the Primary Custodian shall
install new releases of the Software as the Custodian may direct. The Primary
Custodian agrees not to modify or attempt to modify the Software without the
Custodian's prior written consent. The Primary Custodian acknowledges that any
modifications to the Software, whether by the Primary Custodian or the Custodian
and whether with or without the Custodian's consent, shall become the property
of the Custodian.
5. THE CUSTODIAN AND ITS MANUFACTURERS AND SUPPLIERS MAKE NO WARRANTIES OR
REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SOFTWARE OR THE METHOD(S) BY
WHICH THE PRIMARY CUSTODIAN MAY TRANSMIT INSTRUCTIONS TO THE CUSTODIAN, EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. EXPORT RESTRICTIONS. EXPORT OF THE SOFTWARE IS PROHIBITED BY UNITED
STATES LAW. THE PRIMARY CUSTODIAN AGREES THAT IT WILL NOT UNDER ANY
CIRCUMSTANCES RESELL, DIVERT, TRANSFER, TRANSSHIP OR OTHERWISE DISPOSE OF THE
SOFTWARE (IN ANY FORM) IN OR TO ANY OTHER COUNTRY. IF THE CUSTODIAN DELIVERS THE
SOFTWARE TO THE PRIMARY CUSTODIAN OUTSIDE THE UNITED STATES, THE SOFTWARE WAS
EXPORTED FROM THE UNITED STATES IN ACCORDANCE WITH EXPORT ADMINISTRATIVE
REGULATIONS. DIVERSION CONTRARY TO U.S. LAWS PROHIBITED. The Primary Custodian
hereby authorizes
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Custodian to report its name and address to government agencies to which
Custodian is required to provide such information by law.
7. Where the method for transmitting Instructions by the Primary Custodian
involves an automatic systems acknowledgment by the Custodian of its receipt of
such Instructions, then in the absence of such acknowledgment the Custodian
shall not be liable for any failure to act pursuant to such Instructions, the
Fund may not claim that such Instructions were received by the Custodian, and
the Primary Custodian shall deliver a Certificate by some other means.
8. (a) The Primary Custodian agrees that where it delivers to the Custodian
Instructions hereunder, it shall be the Primary Custodian 's sole responsibility
to ensure that only persons duly authorized by the Fund transmit such
Instructions to the Custodian. The Primary Custodian will cause all persons
transmitting Instructions to the Custodian to treat applicable user and
authorization codes, passwords and authentication keys with extreme care, and
irrevocably authorizes the Custodian to act in accordance with and rely upon
Instructions received by it pursuant hereto.
(b) The Primary Custodian hereby represents, acknowledges and agrees
that it is fully informed of the protections and risks associated with the
various methods of transmitting Instructions to the Custodian and that there may
be more secure methods of transmitting instructions to the Custodian than the
method(s) selected by the Primary Custodian. The Primary Custodian hereby
agrees that the security procedures (if any) to be followed in connection with
the Primary Custodian's transmission of Instructions provide to it a
commercially reasonable degree of protection in light of its particular needs
and circumstances.
9. The Primary Custodian covenants to the Custodian that its transmission
of Instructions pursuant hereto shall at all times comply with the 1940 Act, and
that the Primary Custodian shall establish access codes and grant use of such
access codes only to Authorized Persons as defined in this Custody Agreement,
shall establish internal safekeeping procedures to safeguard and protect the
confidentiality and availability of user and access codes, passwords and
authentication keys, and shall use Instructions only in a manner that does not
contravene the 1940 Act.
10. The Primary Custodian shall notify the Custodian of any errors,
omissions or interruptions in, or delay or unavailability of, its ability to
send Instructions as promptly as practicable, and in any event within 24 hours
after the earliest of (i) discovery thereof, (ii) the business day on which
discovery should have occurred through the exercise of reasonable care and (iii)
in the case of any error, the date of actual receipt of the earliest notice
which reflects such error, it being agreed that discovery and receipt of notice
may only occur on a business day. The Custodian shall promptly advise the
Primary Custodian whenever the Custodian learns of any errors, omissions or
interruption
-11-
in, or delay or unavailability of, the Primary Custodian's ability to send, or
the Custodian's ability to receive, Instructions.
11. Custodian will indemnify and hold harmless the Primary Custodian with
respect to any liability, damages, loss or claim incurred by or brought against
Primary Custodian or the Trust by reason any claim or infringement against any
patent, copyright, license or other property right arising out or by reason of
the Primary Custodian's use of the Software in the form provided under this
Section. Custodian at its own expense will defend such action or claim brought
against the Primary Custodian or the Trust to the extent that it is based on a
claim that the Software in the form provided by Custodian infringes any patents,
copyrights, license or other property right, provided that Custodian is provided
with reasonable written notice of such claim, provided that the Primary
Custodian has not settled, compromised or confessed any such claim without the
Custodian's written consent, in which event Custodian shall have no liability or
obligation hereunder, and provided the Primary Custodian reasonably cooperates
with and assists Custodian in the defense of such claim. Custodian shall have
the right to control the defense of all such claims, lawsuits and other
proceedings. If, as a result of any claim of infringement against any patent,
copyright, license or other property right, the Primary Custodian or the
Custodian is enjoined from using the Software, or if Custodian believes that the
System is likely to become the subject of a claim of infringement, Custodian at
its option may in its sole discretion either (a) at its expenses procure the
right for the Primary Custodian to continue to use the Software, or (b), replace
or modify the Software so as to make it non-infringing, or (c) discontinue the
license granted herein upon written notice to the Primary Custodian.
ARTICLE VIII.
DUTIES OF THE CUSTODIAN WITH RESPECT TO PROPERTY
OF ANY SERIES HELD OUTSIDE OF THE UNITED STATES
1. Subject to paragraph 2 of this Article, the Custodian is authorized to
employ, as sub-custodian for each Fund's Securities and other assets, (a) the
foreign branches of banks described in Section 17(f)(1) of the 1940 Act, (b) the
foreign banking institutions, and (c) the foreign securities depositories and
clearing agencies, as the same are from time to time designated on Schedule I
hereto (each a "Foreign Sub-Custodian"). From time to time entities may,
subject to paragraph 2 of this Article, be added to Schedule I upon the
agreement of the Custodian and the Primary Custodian, and the Custodian may from
time to time delete from Schedule I any Foreign Sub-Custodian which ceases to
have any agreement with the Custodian, provided that the Custodian shall give
prompt written notice of any such deletion to the Primary Custodian . Upon
receipt of a Certificate, the Custodian shall cease the employment of any one or
more Foreign Sub-Custodians for maintaining custody of a Fund's assets and such
Foreign Sub-Custodian shall be deemed deleted from Schedule I.
-12-
2. Notwithstanding preceding paragraph 1 of this Article, the Custodian
shall utilize a Foreign Sub-Custodian listed on Schedule I hereto as amended
from time to time which is not a bank described in Section 17(f)(1) of the 1940
Act only if the Fund's foreign custody manager with respect to such Foreign Sub-
Custodian has consented to Custodian's use of the same. The Primary Custodian
represents that with respect to each entity listed on the date first above
written in part B of Schedule I hereto, it is the duly appointed foreign custody
manager and it hereby consents. The Primary Custodian shall cause the Trust and
a Fund to provide to the Custodian from any foreign custody manager other than
Fifth Third Bank or The Bank of New York such documents and certifications as
the Custodian may reasonably request from time to time in connection with any
addition to Schedule I.
3. At the election of the Primary Custodian, it shall, to the extent
permitted by applicable law and the terms of Custodian's agreement with the
Foreign Sub-Custodian, be entitled to be subrogated to, or to be an assignee of,
the rights of the Custodian with respect to any claims against a Foreign Sub-
Custodian as a consequence of any loss, damage, cost, expense, liability or
claim sustained or incurred by a Fund if and to the extent that such Fund has
not been made whole for any such loss, damage, cost, expense, liability or
claim.
4. The Custodian will, consistent with the terms of the applicable Foreign
Sub-Custodian agreement, use reasonable efforts to arrange for the independent
accountants of a Fund to be afforded access to the books and records of any
Foreign Sub-Custodian insofar as such books and records relate to the
performance of such Foreign Sub-Custodian under its agreement with the Custodian
on behalf of such Fund.
5. The Custodian represents and warrants, and each transaction that the
Custodian effectuates pursuant to this Agreement involving the use of a Foreign
Sub-Custodian shall constitute a representation and warranty by the Custodian,
that the Securities and other assets of the Trust held by each Foreign Sub-
Custodian are held on terms at least as favorable as the terms on which the
Securities and other assets of the Custodian and each other client of the
Custodian (other than certain clients for which the Foreign Sub-Custodian
maintains separate accounts) are held by such Foreign Sub-Custodian, except to
the extent that the Custodian may have rights and remedies for which neither the
Primary Custodian, the Trust, nor a Fund is entitled to subrogation or
assignment as described in paragraph 3 of this Article.
6. The Custodian will supply to the Primary Custodian from time to time, as
mutually agreed upon, statements in respect of the securities and other assets
of each Fund held by Foreign Sub-Custodians, including but not limited to an
identification of entities having possession of each Fund's Foreign Securities
and other assets, and advices or notifications of any transfers of Foreign
Securities to or from each custodial account maintained by a Foreign Sub-
Custodian for the Custodian on behalf of a Fund.
-13-
7. The Custodian shall transmit promptly to the Primary Custodian all
notices, reports or other written information received pertaining to the Fund's
Foreign Securities, including without limitation, notices of corporate action,
proxies and proxy solicitation materials.
8. Notwithstanding any provision of this Agreement to the contrary,
settlement and payment for securities received for the account of any Fund and
delivery of securities maintained for the account of any Fund may be effected in
accordance with the customary or established securities trading or securities
processing practices and procedures in the jurisdiction or market in which the
transaction occurs, including, without limitation, delivery of securities to the
purchaser thereof or to a dealer therefor (or an agent for such purchaser or
dealer) against a receipt with the expectation of receiving later payment for
such securities from such purchaser or dealer.
9. Notwithstanding any other provision in this Agreement to the contrary,
with respect to any losses or damages arising out of or relating to any actions
or omissions of any Foreign Sub-Custodian, the sole responsibility and liability
of the Custodian shall be to take appropriate action, at the Primary Custodian's
expense and with the Primary Custodian's consent to recover such loss or damage
from the Foreign Sub-Custodian. It is expressly understood and agreed that the
Custodian's sole responsibility and liability shall be limited to amounts so
recovered from the Foreign Sub-Custodian.
ARTICLE IX.
FX TRANSACTIONS
1. Whenever the Trust on behalf of a Fund shall enter into an FX
Transaction, the Primary Custodian shall promptly deliver to the Custodian a
Certificate or Oral Instructions specifying with respect to such FX Transaction:
(a) the Fund to which such FX Transaction is specifically allocated; (b) the
type and amount of Currency to be purchased by such Fund; (c) the type and
amount of Currency to be sold by the Fund; (d) the date on which the Currency to
be purchased is to be delivered; (e) the date on which the Currency to be sold
is to be delivered; and (f) the name of the person from whom or through whom
such currencies are to be purchased and sold. Unless otherwise instructed by a
Certificate or Oral Instructions, the Custodian shall deliver, or shall instruct
a Foreign Sub-Custodian to deliver, the Currency to be sold on the date on which
such delivery is to be made, as set forth in the Certificate, and shall receive,
or instruct a Foreign Sub-Custodian to receive, the Currency to be purchased on
the date as set forth in the Certificate.
2. Where the Currency to be sold is to be delivered on the same day as the
Currency to be purchased, as specified in the Certificate or Oral Instructions,
the Custodian or a Foreign Sub-Custodian may arrange for such deliveries and
receipts to be
-14-
made in accordance with the customs prevailing from time to time among brokers
or dealers in Currencies, and such receipt and delivery may not be completed
simultaneously. The Primary Custodian and the Trust assume all responsibility
and liability for all credit risks involved in connection with such receipts and
deliveries, which responsibility and liability shall continue until the Currency
to be received has been received in full.
3. Any FX Transaction effected by the Custodian in connection with this
Agreement may be entered with the Custodian, any office, branch or subsidiary of
The Bank of New York Company, Inc., or any Foreign Sub-Custodian acting as
principal or otherwise through customary banking channels. The Primary
Custodian may issue a standing Certificate with respect to FX Transaction but
the Custodian may establish rules or limitations concerning any foreign exchange
facility made available hereunder. The Primary Custodian and the Trust shall
bear all risks of investing in Securities or holding Currency. Without limiting
the foregoing, the Primary Custodian and each Fund shall bear the risks that
rules or procedures imposed by a Foreign Sub-Custodian or foreign depositories,
exchange controls, asset freezes or other laws, rules, regulations or orders
shall prohibit or impose burdens or costs on the transfer to, by or for the
account of a Fund of Securities or any cash held outside such Fund's
jurisdiction or denominated in Currency other than its home jurisdiction or the
conversion of cash from one Currency into another currency. The Custodian shall
not be obligated to substitute another Currency for a Currency (including a
Currency that is a component of a Composite Currency Unit) whose
transferability, convertibility or availability has been affected by such law,
regulation, rule or procedure. Neither the Custodian nor any Foreign Sub-
Custodian shall be liable to the Primary Custodian or to any Fund for any loss
resulting from any of the foregoing events.
ARTICLE X.
CONCERNING THE CUSTODIAN
1. (a) Except as hereinafter provided, or as provided in Article VIII
neither the Custodian nor its nominee shall be liable for any loss or damage,
including counsel fees, resulting from its action or omission to act or
otherwise, except for any such loss or damage arising out of its own gross
negligence or willful misconduct. In no event shall the Custodian be liable to
the Primary Custodian, the Trust, any Fund, or any other third party for
special, indirect or consequential damages or lost profits or loss of business,
arising under or in connection with this Agreement, even if previously informed
of the possibility of such damages and regardless of the form of action. The
Custodian may, with respect to questions of law arising hereunder, apply for and
obtain the advice and opinion of counsel to the Primary Custodian, or of its own
counsel (provided such counsel is selected with due care by the Custodian) at
the reasonable expense of the
-15-
Primary Custodian, and shall be fully protected with respect to anything done or
omitted by it in conformity with such advice or opinion.
(b) The Custodian agrees to indemnify the Primary Custodian against, and
save the Primary Custodian harmless from, any direct money damages to the extent
the same are cause by the Custodian's gross negligence or willful misconduct,
and the related reasonable fees and expenses of counsel.
2. Without limiting the generality of the foregoing, the Custodian shall be
under no obligation to inquire into, and shall not be liable for:
(a) the validity of the issue of any Securities purchased, sold, or
written by or for a Fund, the legality of the purchase, sale or writing thereof,
or the propriety of the amount paid or received therefor; provided such
Securities appear authentic on their face;
(b) the legality of the sale or redemption of any Shares, or the
propriety of the amount to be received or paid therefor;
(c) the legality of the declaration or payment of any dividend by a
Fund;
(d) the legality of any borrowing by a Fund using Securities as
collateral;
(e) the legality of any loan of portfolio Securities by a Fund, nor
shall the Custodian be under any duty or obligation to see to it that any cash
collateral delivered to it by a broker, dealer, or financial institution or held
by it at any time as a result of such loan of portfolio Securities of a Fund is
adequate collateral for such Fund against any loss it might sustain as a result
of such loan. The Custodian specifically, but not by way of limitation, shall
not be under any duty or obligation periodically to check or notify any Fund or
the Primary Custodian that the amount of such cash collateral held by it for a
Fund is sufficient collateral for such Fund, but such duty or obligation shall
be the sole responsibility of such Fund. In addition, the Custodian shall be
under no duty or obligation to see that any broker, dealer or financial
institution to which portfolio Securities of a Fund are lent pursuant to Article
V of this Agreement makes payment to it of any dividends or interest which are
payable to or for the account of such Fund during the period of such loan or at
the termination of such loan, provided, however, that the Custodian shall
promptly notify the Primary Custodian in the event that such dividends or
interest are not paid and received when due; or
(f) the authority of the Primary Custodian or any Authorized Person to give
Certificates, Written Instructions or Oral Instructions on behalf of any Fund,
or any Fund's compliance with the 1940 Act.
-16-
3. The Custodian shall not be liable for, or considered to be the Custodian
of, any money, whether or not represented by any check, draft, or other
instrument for the payment of money, received by it or a Foreign Sub-Custodian
on behalf of a Fund until the Custodian or a Foreign Sub-Custodian actually
receives and collects such money directly or by the final crediting of the
account representing the Fund's interest at the foreign book-entry or securities
depository.
(a) Whenever Securities (including, but not limited to, warrants, options,
conversions, redemptions, tenders, options to tender or non-mandatory puts
or calls) confer optional rights on the Trust, or provide for discretionary
action or alternative courses of action by the Primary Custodian, the
Primary Custodian shall be responsible for making for delivering a
Certificate to the Custodian. In order for the Custodian or a Foreign Sub-
Custodian to act, the Custodian must receive such Certificate at the
Custodian's offices, addressed as the Custodian may from time to time
request, by no later than the deadline specified by the Custodian, in its
sole discretion, from time to time. Absent the Custodian's receipt of such
Certificate prior to its specified deadlines, the Custodian shall not be
liable for failure to take any action relating to or to exercise any rights
conferred by such Securities.
(b) The Custodian shall endeavor to notify the Primary Custodian of such
rights or discretionary actions or of the date or dates by when such rights must
be exercised or such action must be taken provided that Custodian has received,
directly or from a Foreign Sub-Custodian from the issuer, or, from one of the
nationally or internationally recognized bond or corporate action services to
which Custodian subscribes, timely notice of such rights or discretionary
corporate action or of the date or dates such rights must be exercised or such
action must be taken. Absent actual receipt of such notice, Custodian shall have
no liability for failing to so notify the Primary Custodian.
(c) With respect to all Securities, however registered, the voting rights
are to be exercised only by the Primary Custodian or its nominee. Custodian's
only duty shall be to provide the Primary Custodian with access to a provider of
global proxy services (the cost of which will be paid by the Primary Custodian).
Other than to provide access to such provider of global proxy services Custodian
shall have no obligations with respect to voting.
4. The Custodian shall not be under any duty or obligation to take action
to effect collection of any amount if the Securities upon which such amount is
payable are in default, or if payment is refused after due demand or
presentation, unless and until (i) it shall be directed to take such action by a
Certificate and (ii) it shall be assured to its satisfaction of reimbursement of
its costs and expenses in connection with any such action.
-17-
5. The Custodian shall not be under any duty or obligation (a) to ascertain
whether any Securities at any time delivered to, or held by it or by any Foreign
Sub-Custodian, for the account of the Fund and specifically allocated to a Fund
are such as properly may be held by the Fund or such Series under the provisions
of its then current prospectus, or (b) to ascertain whether any transactions by
the Fund, whether or not involving the Custodian, are such transactions as may
properly be engaged in by the Fund.
6. The Custodian shall be entitled to receive and the Primary Custodian
agrees to pay to the Custodian all out-of-pocket expenses and such compensation
as may be agreed upon from time to time between the Custodian and the Primary
Custodian. The expenses for which the Custodian shall be entitled to
reimbursement hereunder shall include, but are not limited to, the expenses of
sub-custodians and foreign branches of the Custodian incurred in settling
outside of New York City transactions involving the purchase and sale of
Securities of the Fund.
7. The Custodian shall be entitled to rely upon any Certificate, notice or
other instrument in writing received by the Custodian and reasonably believed by
the Custodian to be a Certificate. The Custodian shall be entitled to rely upon
any Oral Instructions actually received by the Custodian hereinabove provided
for. The Primary Custodian agrees to forward to the Custodian a Certificate or
facsimile thereof confirming such Oral Instructions in such manner so that such
Certificate or facsimile thereof is received by the Custodian, whether by hand
delivery, telecopier or other similar device, or otherwise, by the close of
business of the same day that such Oral Instructions are given to the Custodian.
The Primary Custodian agrees that the fact that such confirming instructions are
not received, or that contrary instructions are received, by the Custodian shall
in no way affect the validity of the transactions or enforceability of the
transactions hereby authorized. The Primary Custodian agrees that the Custodian
shall incur no liability to the Fund in acting upon Oral Instructions given to
the Custodian hereunder concerning such transactions provided such instructions
reasonably appear to have been received from an Authorized Person.
8. The books and records pertaining to the Trust which are in the
possession of the Custodian shall be the property of the Trust. Such books and
records shall be prepared and maintained as required by the 1940 Act, as
amended, and other applicable securities laws and rules and regulations. The
Trust or its authorized representatives, shall have access to such books and
records during the Custodian's normal business hours. Upon the reasonable
request of the Trust, copies of any such books and records shall be provided by
the Custodian to the Trust or its authorized representative, and the Primary
Custodian shall reimburse the Custodian its expenses of providing such copies.
Upon reasonable request of the Trust, the Custodian shall provide in hard copy
or on micro-film, whichever the Custodian elects, any records included in any
such delivery which are maintained by the Custodian on a computer disc, or are
similarly maintained,
-18-
and the Primary Custodian shall reimburse the Custodian for its expenses of
providing such hard copy or micro-film.
9. The Custodian shall provide the Primary Custodian with such reports on
its own systems of internal accounting control as the Primary Custodian may
reasonably request from time to time.
10. The Primary Custodian agrees to indemnify the Custodian against and save
the Custodian harmless from any direct money damages (but not any incidental,
indirect, special, or consequential damages, or any lost profits or loss of
business) howsoever arising or incurred because of or in connection with this
Agreement, and the related reasonable fees and expenses of counsel, except to
the extent the same arise out of the Custodian's own gross negligence or willful
misconduct.
11. Subject to the foregoing provisions of this Agreement, including,
without limitation, those contained in Articles VIII and IX the Custodian may
deliver and receive Securities, and receipts with respect to such Securities,
and arrange for payments to be made and received by the Custodian in accordance
with the customs prevailing from time to time among brokers or dealers in such
Securities. When the Custodian is instructed to deliver Securities against
payment, delivery of such Securities and receipt of payment therefor may not be
completed simultaneously. If the Custodian or any Foreign Sub-Custodian delivers
and receives Securities and receipts therefor, and arranges for payments to be
made or received by Custodian or any Foreign Sub-Custodian in accordance with
customs and practices in the jurisdiction or markets in which the transaction
occurs, the Custodian, shall not have nor assume any responsibility or liability
for any credit risks involved in connection with the Custodian's delivery of
Securities pursuant to Certificates, Written Instructions or Oral Instructions.
12. The Custodian shall have no duties or responsibilities whatsoever except
such duties and responsibilities as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied in this Agreement
against the Custodian.
ARTICLE XI.
TERMINATION
Either of the parties 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 giving of such notice.
In the event such notice is given by the Primary Custodian, it shall be
accompanied by a Certificate designating a successor custodian or custodians,
each of which shall be a bank or trust company having not less than $2,000,000
aggregate capital, surplus and undivided profits. In the event such notice is
given by the Custodian, the Primary Custodian shall, on or before the
termination date, deliver to the Custodian a Certificate designating a successor
custodian
-19-
or custodians. In the absence of such designation by the Primary Custodian, the
Custodian may designate the Primary Custodian as successor custodian. Upon the
date set forth in such notice this Agreement shall terminate, and the Custodian
shall upon delivery directly to the successor custodian all Securities and money
then owned by the Funds and held by it as Custodian, after deducting all fees,
expenses and other amounts for the payment or reimbursement of which it shall
then be entitled.
ARTICLE XII.
MISCELLANEOUS
1. Annexed hereto as Appendix A is a Certificate signed by two of the
present Authorized Persons of the Primary Custodian under its seal, setting
forth the names and the signatures of the present Authorized Persons. The
Primary Custodian agrees to furnish to the Custodian a new Certificate in
similar form in the event that any such present Authorized Person ceases to be
an Authorized Person or in the event that other or additional Authorized Persons
are elected or appointed. Until such new Certificate shall be received, the
Custodian shall be fully protected in acting under the provisions of this
Agreement upon Oral Instructions or signatures of the Authorized Persons as set
forth in the last delivered Certificate.
2. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Custodian, shall be sufficiently given if
addressed to the Custodian and mailed or delivered to it at its offices at 00
Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as the
Custodian 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 Primary Custodian shall be sufficiently given
if addressed to the Primary Custodian and mailed or delivered to it at its
office at 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000, or at such other
place as the Primary Custodian may from time to time designate in writing.
4. This Agreement may not be amended or modified in any manner except by a
written agreement executed by both parties with the same formality as this
Agreement.
5. This Agreement shall extend to and shall be binding upon the parties
hereto, and their respective successors and assigns; provided, however, that
this Agreement shall not be assignable by the Primary Custodian without the
written consent of the Custodian, or by the Custodian without the written
consent of the Fund, authorized or approved by a resolution of the Fund's Board
of Trustees.
6. This Agreement shall be construed in accordance with the laws of the
State of New York without giving effect to conflict of laws principles thereof.
Each party
-20-
hereby consents to the jurisdiction of a state or federal court situated in New
York City, New York in connection with any dispute arising hereunder and hereby
waives its right to trial by jury.
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. The performance and provisions of this Agreement are intended to benefit
only the Primary Custodian and the Custodian, and no rights shall be granted to
any other person by virtue of this Agreement.
-21-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers, thereunto duly authorized and their
respective seals to be hereunto affixed, as of the day and year first above
written.
FIFTH THIRD BANK
[SEAL] By:_______________________
Attest:
_______________________
THE BANK OF NEW YORK
[SEAL] By:_______________________
Name:
Title:
Attest:
_______________________
-22-
APPENDIX A
I, , President and I, ,
of FIFTH THIRD BANK do hereby certify that:
The following persons have been duly authorized to execute any Certificate,
instruction, notice or other instrument on behalf of Fifth Third Bank, and the
signatures set forth opposite their respective names are their true and correct
signatures:
Name Position Signature
________________ __________________ ____________________
APPENDIX B
I, _________________, a Vice President with THE BANK OF NEW YORK do hereby
designate the following publications:
The Bond Buyer
Depository Trust Company Notices
Financial Daily Card Service
XX Xxxxxx Municipal Bond Service
London Financial Times
New York Times
Standard & Poor's Called Bond Record
Wall Street Journal
SCHEDULE I
(FUNDS)
Exhibit g(ii)A
FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT made as of _____________ __, 1999, between Fifth Third Funds (the
"Company"), an investment company having the various Series listed on Schedule 1
attached hereto and The Bank of New York ("BNY").
W I T N E S S E T H:
WHEREAS, the Company desires to appoint BNY as a Foreign Custody Manager on
the terms and conditions contained herein;
WHEREAS, BNY desires to serve as a Foreign Custody Manager and perform the
duties set forth herein on the terms and condition contained herein;
NOW THEREFORE, in consideration of the mutual promises hereinafter
contained in this Agreement, the Company and BNY hereby agrees 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. "BOARD" shall mean the Board of Trustees of the Company.
2. "ELIGIBLE FOREIGN CUSTODIAN" shall have the meaning provided in the
Rule.
3. "MONITORING SYSTEM" shall mean a system established by BNY to fulfill
the Responsibilities specified in Section 1, clauses (d) and (e), and Section 3
of Article III of this Agreement.
4. "QUALIFIED FOREIGN BANK" shall have the meaning provided in the Rule.
5. "RESPONSIBILITIES" shall mean the responsibilities delegated to BNY as a
Foreign Custody Manager with respect to each Specified Country and each Eligible
Foreign Custodian selected by BNY, 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 from time to time.
7. "SECURITIES DEPOSITORY" shall mean any securities depository or clearing
agency within the meaning of Section (a)(1)(ii) or (a)(1)(iii) of the Rule.
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8. "SPECIFIED COUNTRY" shall mean each country listed on Schedule 2
attached hereto and each country, other than the United States, constituting the
primary market for a security with respect to which The Bank of New York, as
custodian (the "Custodian") under its Custody Agreement with Fifth Third Bank,
has received a settlement instruction.
ARTICLE II.
BNY AS A FOREIGN CUSTODY MANAGER
1. The Company on behalf of its Board hereby delegates to BNY with respect
to each Specified Country the Responsibilities.
2. BNY accepts such 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 Company's assets would
exercise.
ARTICLE III.
RESPONSIBILITIES
1. Subject to the provisions of this Agreement, BNY shall with respect to
each Specified Country select an Eligible Foreign Custodian. In connection
therewith, BNY shall: (a) determine that assets of the Company 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
paragraph (c)(1) of the Rule; (b) determine that the Company's foreign custody
arrangements with each Qualified Foreign Bank are governed by a written contract
with the Custodian (or, in the case of 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 Company's assets based on the standards specified in
paragraph (c)(1) of the Rule; (c) determine that each contract with a Qualified
Foreign Bank 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 BNY reasonably
determines will provide, in their entirety, the same or a greater level of care
and protection for the assets of the Company as such specified provisions in
their entirety; (d) monitor the appropriateness of maintaining the assets of the
Company with a particular Eligible Foreign Custodian pursuant to paragraph
(c)(1) of the Rule and in the case of a Qualified Foreign Bank, any material
change in the contract governing such arrangement and in the case of a
Securities Depository, any material change in the established practices or
procedures of such Securities Depository; and (e) advise the Company whenever an
arrangement (including, in the case of a Qualified Foreign Bank, any material
change in the contract governing such arrangement and in the case of a
Securities Depository, any material change in the established practices or
procedures of such Securities Depository) described in preceding clause (d) no
longer meets the requirements of the Rule. Anything in this Agreement to the
contrary notwithstanding, BNY shall in no event be deemed to have selected any
Securities Depository the use of which is mandatory by law or regulation or
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because securities cannot be withdrawn from such Securities Depository, or
because maintaining securities outside the Securities Depository is not
consistent with prevailing custodial practices in the relevant market (each, a
"Compulsory Depository"); it being understood however, that for each Compulsory
Depository utilized or intended to be utilized by the Company, BNY shall provide
the Company from time to time with information addressing the factors set forth
in Section (c)(1) of the Rule and BNY's opinions with respect thereto so that
the Company may determine the appropriateness of placing Company assets therein.
2. (a) For purposes of Clauses (a) and (b) of preceding Section 1 of this
Article, with respect to Securities Depositories, it is understood that such
determination shall be made on the basis of, and limited by, publicly available
information with respect to each such Securities Depository.
(b) For purposes of clause (d) of preceding Section 1 of this Article,
BNY's determination of appropriateness shall not include, nor be deemed to
include, any evaluation of Country Risks associated with investment in a
particular country. For purposes hereof, "Country Risks" shall mean systemic
risks of holding assets in a particular country including, but not limited to,
(a) the use of Compulsory Depositories, (b) such country's financial
infrastructure, (c) such country's prevailing custody and settlement practices,
(d) nationalization, expropriation or other governmental actions, (e) regulation
of the banking or securities industry, (f) currency controls, restrictions,
devaluations or fluctuations, and (g) market conditions which affect the orderly
execution of securities transactions or affect the value of securities.
3. BNY shall provide to the Board at such times as the Board deems
reasonable and appropriate based on the circumstances of the relevant foreign
custody arrangements written reports notifying the Board of the placement of
assets of the Company with a particular Eligible Foreign Custodian within a
Specified Country and of any material change in the arrangements (including, in
the case of Qualified Foreign Banks, any material change in any contract
governing such arrangements and in the case of Securities Depositories, any
material change in the established practices or procedures of such Securities
Depositories) with respect to assets of the Company with any such Eligible
Foreign Custodian.
ARTICLE IV.
REPRESENTATIONS
1. The Company hereby represents that: (a) this Agreement has been duly
authorized, executed and delivered by the Company, constitutes a valid and
legally binding obligation of the Company enforceable in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy
laws, any other similar laws affecting the rights of creditors generally and by
equitable principles, and except to the extent that the enforceability of
indemnification provisions may be limited by public policy limitations, and no
statute, regulation, rule, order, judgment or contract binding on the Company
prohibits the Company'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 or its
investment advisor or investment subadvisor has considered the Country Risks
associated with
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investment in each Specified Country and will have considered such risks prior
to any settlement instructions being given to the Custodian with respect to any
other Specified Country.
2. BNY hereby represents that: (a) BNY is duly organized and existing under
the laws of the State of New York, 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 BNY, constitutes a valid and legally binding obligation of BNY enforceable in
accordance with its terms, and no statute, regulation, rule, order, judgment or
contract binding on BNY prohibits BNY's execution or performance of this
Agreement; (c) BNY has established the Monitoring System; and (d) BNY is a "U.S.
Bank" within the meaning of Section (a)(7) of the Rule.
ARTICLE V.
CONCERNING BNY
1. BNY 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 Company except to the extent the same arises out of the
failure of BNY to exercise the care, prudence and diligence required by Section
2 of Article II hereof. In no event shall BNY be liable to the Company, 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 Company shall indemnify BNY and hold 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,
BNY by reason or as a result of any action or inaction, or arising out of BNY's
performance hereunder, provided that the Company need not indemnify BNY to the
extent any such costs, expenses, damages, liabilities or claims arises out of
BNY's failure to exercise the reasonable care, prudence and diligence required
by Section 2 of Article II hereof.
3. For its services hereunder, the Company agrees to pay to BNY such
compensation and out-of-pocket expenses as shall be mutually agreed.
4. BNY shall have only such duties as are expressly set forth herein. In no
event shall BNY be liable for any Country Risks associated with investments in a
particular country.
ARTICLE VI.
MISCELLANEOUS
1. This Agreement constitutes the entire agreement between the Company and
BNY, and no provision in the Custody Agreement between Fifth Third Bank and the
Custodian shall affect the duties and obligations of BNY hereunder, or limit or
impair the rights of the Company nor shall any provision in this Agreement
affect the duties or obligations of the Custodian under said Custody Agreement,
or limit or impair the rights of the Company.
-5-
2. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to BNY, shall be sufficiently given if received by it
at its offices at 00 Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such
other place as BNY 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 Company shall be sufficiently given if
received by it at its offices at c/o Fifth Third Bank, 00 Xxxxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxx 00000 or at such other place as the Company 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 the Company and BNY. This Agreement shall extend
to and shall be binding upon the parties hereto, and their respective successors
and assigns; provided however, that this Agreement shall not be assignable by
the Company or BNY without the written consent of BNY or the Company.
5. This Agreement shall be construed in accordance with the substantive
laws of the State of New York, without regard to conflicts of laws principles
thereof. The Company and BNY each hereby consents to the jurisdiction of a state
or federal court situated in New York City, New York in connection with any
dispute arising hereunder. The Company hereby irrevocably waives, to the fullest
extent permitted by applicable law, any objection which it may now or hereafter
have to the laying of venue of any such proceeding brought in such a court and
any claim that such proceeding brought in such a court has been brought in an
inconvenient forum. The Company and BNY each hereby irrevocably waives any and
all rights to trial by jury in any legal proceeding arising out of or relating
to this Agreement.
6. The parties hereto agree that in performing hereunder, BNY is acting
solely on behalf of the Company and no contractual or service relationship shall
be deemed to be established hereby between BNY 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 with respect to the Company
simultaneously with the termination of the Custody Agreement between The Bank of
New York and Fifth Third Bank, and may otherwise be terminated by the Company or
BNY upon not less than thirty (30) days prior written notice.
9. It is expressly agreed that the obligations of the Company hereunder
shall not be binding upon any of the Trustees, shareholders, nominees, officers,
agents or employees of the Company personally but shall bind only the trust
property of the Company as provided in the Company's Agreement and Declaration
of Trust dated September 15, 1988, as from time to time amended. The execution
and delivery of this Agreement have been authorized by the Trustees of
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the Company and this Agreement has been signed and delivered by an authorized
officer of the Company, acting as such, and neither such authorization by the
Trustees nor such execution and delivery by such officer shall be deemed to have
been made by any of them individually or to impose any liability on any of them
personally, but shall bind only the trust property of the Company as provided in
the above-mentioned Agreement and Declaration of Trust.
IN WITNESS WHEREOF, the Company and BNY has caused this Agreement to be
executed by their respective officers, thereunto duly authorized, as of the date
first above written.
________________________________
FIFTH THIRD FUNDS
THE BANK OF NEW YORK
By: _____________________________
Title:
SCHEDULE 1
Name of Fund
------------
SCHEDULE 2
Specified Countries
Exhibit g(ii)(B)
[EXECUTION VERSION]
May 25, 1999
Fifth Third Funds
c/o BISYS Fund Services LLP
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000-0000
Ladies and Gentlemen:
This letter is to acknowledge that, in accordance with the requirements of
Rule 17f-5 under the Investment Company Act of 1940, as amended, we agree to
serve as the "Foreign Custody Manager" (as defined in Rule 17f-5) of the Board
of Trustees of Fifth Third Funds (the "Trust") with respect to the separate
series thereof (the "Funds"), and to perform the responsibilities set forth in
paragraphs (c)(1), (c)(2) and (c)(3) of Rule 17f-5 (the "Delegated
Responsibilities") for the Board with respect to each "Compulsory Depository."
For the purposes of this letter, "Compulsory Depository means any securities
depository or clearing agency within the meaning of Section (a)(1)(ii) or
(a)(1)(iii) of Rule 17f-5, the use of which is mandatory by law or regulation or
because securities cannot be withdrawn from such a securities depository or
clearing agency or because maintaining securities outside such securities
depository or clearing agency is not consistent with prevailing custodial
practices in the relevant market. In performing the Delegated Responsibilities,
we agree to exercise reasonable care, prudence and diligence such as a person
having responsibility for the safe keeping of assets of the Funds would
exercise. We also agree to provide information to the Board notifying it of the
placement of Fund assets with a particular Compulsory Depository and of any
material change in the Funds' arrangements therewith, at such times as the Board
deems reasonable and appropriate based on the circumstances of the Funds'
foreign custody arrangements.
Sincerely,
FIFTH THIRD BANK
By: _________________________________
Its:_________________________________
Acknowledged By:
FIFTH THIRD FUNDS
By:_________________________
Its:_________________________
