FOREIGN CUSTODY MANAGER AGREEMENT
AGREEMENT, made as of February 11, 2000, between the Capstone
Christian Values Fund, Inc. (the "Fund") and THE FIFTH THIRD BANK ("Fifth
Third").
WITNESSETH:
WHEREAS, the Fund 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 Fund 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 Fund.
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because securities cannot be withdrawn from such Securities Depository, or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 l7f-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 I attached hereto and each country, other than United States,
constituting the primary market for a security with respect to which the
Fund has given settlement instruction to The Fifth Third Bank as custodian
(the "Custodian") under its Custody Agreement with the Fund.
ARTICLE II
FIFTH THIRD AS FOREIGN CUSTODY MANAGER
1 The Fund 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 Fund'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 Fund 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 the Fund 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 Fund 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 Fund'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 Fund'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 Fund as such specified provisions; (d)
monitor pursuant to the Monitoring System the appropriateness of
maintaining the assets of the Fund with a particular Eligible Foreign
Custodian selected by Fifth Third and the contract governing the
arrangement; and (e) advise the Fund whenever an arrangement described in
the preceding clause (d) no longer meets the requirements of the Rule that
the Fund must withdraw its assets from such Eligible Foreign Custodian as
soon as reasonably practicable. The Fund 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 Fund 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 Fund hereby represents that: (a) this Agreement has been
duly authorized, executed and delivered by the Fund, constitutes a valid
and legally binding obligation of the Fund enforceable in accordance with
its terms, and no statute, regulation, rule, order, judgment or contract
binding on the Fund prohibits the Fund'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 1 and 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 Fund 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 Fund, 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 Fund 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 Fund 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 11 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 Fund with a particular Eligible Foreign custodian
selected by Fifth Third.
ARTICLE VI
MISCELLANEOUS
1 . This Agreement constitutes the entire agreement between the
Fund and Fifth Third, and no provision in the Custody Agreement between the
Fund 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 Fund 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 Fund shall be sufficiently
given if received by it at its offices at Capstone Christian Values Fund,
Inc., 0000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: Xxxxx
Xxxxxxx.
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 and principles thereof. The Fund 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 Fund 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 Fund 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 Fund 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 Fund and Fifth Third have caused this
Agreement to be executed by their respective officers, thereunto duly
authorized, as of the date first above written.
CAPSTONE CHRISTIAN VALUES FUND,
INC.
By:
_______________________________
Title:
_______________________________
FIFTH THIRD BANK
By:
________________________________
Title:
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