Exhibit (g)(4)
AMENDMENT
TO CUSTODY AGREEMENT
AMENDMENT made as of June 28, 2001 to that certain Custody Agreement
dated as of May 28, 1993 by and between M.S.D. & T. FUNDS, INC., a Maryland
corporation (the "Fund"), and FIFTH THIRD BANK, a banking corporation organized
pursuant to the laws of the State of Ohio ("Custodian") (such Custody Agreement,
including the Global Custody Addendum and Foreign Custody Manager Addendum
thereto, hereinafter referred to as the "Custody Agreement").
WITNESSETH:
WHEREAS, the Custodian has been appointed by the Fund as the custodian
of the assets of certain series or portfolios of the Fund as identified in the
Custody Agreement, including those assets to be held outside the United States;
and
WHEREAS, the Fund and the Custodian desire to amend the Custody
Agreement to reflect the adoption of Rule 17f-7 ("Rule 17f-7") under the
Investment Company Act of 1940, as amended (the "1940 Act");
NOW, THEREFORE, the Fund and Custodian hereby agree as follows:
1. Unless otherwise defined herein, capitalized terms used herein
shall have the meanings described to them in the Custody Agreement. In
particular, the term "Fund" hereinafter shall be deemed to refer to each
separate series or portfolio of the Fund unless the context otherwise requires.
2. The following new Section is hereby added to the Custody
Agreement:
"Foreign Depositories.
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(a) As used in this Section, the term "Foreign Depository" shall
mean (a) Euroclear, (b) Clearstream Banking, societe anonyme, (c) each
Eligible Securities Depository as defined in Rule 17f-7 identified to
the Fund from time to time, and (d) the respective successors and
nominees of the foregoing.
(b) Notwithstanding any other provision in this Agreement, the
Fund hereby represents and warrants, which representations and
warranties shall be continuing and shall be deemed to be reaffirmed
upon any delivery of a certificate or any giving of Oral Instructions
or Written Instructions, as the case may be, that the Fund or its
investment adviser has determined that the custody arrangements of
each Foreign Depository provide reasonable safeguards against the
custody risks associated with maintaining assets with such Foreign
Depository within the meaning of Rule 17f-7.
(c) With respect to each Foreign Depository, the Custodian shall
exercise reasonable care, prudence, and diligence (i) to provide the
Fund (or its duly authorized investment adviser) with an analysis of
the custody risks associated with maintaining assets with the Foreign
Depository in accordance with section (a)(1)(i)(A) of Rule 17f-7, and
(ii) to monitor such custody risks on a continuing basis and promptly
notify the Fund (or its duly authorized investment adviser) of any
material change in such risks in accordance with section (a)(1)(i)(B)
of Rule 17f-7. The Custodian shall advise the Fund whether the
Custodian believes each Foreign Depository to be used by the Fund is
an Eligible Securities Depository, and shall promptly advise the Fund
if the Custodian believes that any Foreign Depository that holds the
assets belonging to the Fund ceases to be an Eligible Securities
Depository. The Fund acknowledges and agrees that such analysis and
monitoring shall be made on the basis of, and limited by, information
gathered from Subcustodians or through publicly available information
otherwise obtained by the Custodian, and shall not include any
evaluation of Country Risks. As used herein the term "Country Risks"
shall mean with respect to any Foreign Depository: (a) the financial
infrastructure of the country in which it is organized, (b) such
country's prevailing settlement practices, (c) nationalization,
expropriation or other governmental actions, (d) such country's
regulation of the banking or securities industry, (e) currency
controls, restrictions, devaluations or fluctuations, and (f) market
conditions which affect the order execution of securities transactions
or affect the value of securities."
3. This Amendment 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 Amendment.
IN WITNESS WHEREOF, the Fund and the Custodian have caused this
Amendment to be executed by their respective officers, thereunto duly
authorized, as of the day and year first above written.
M.S.D. & T. FUNDS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: President
FIFTH THIRD BANK
By: /s/ Xxxxxxxxx Xxxxx
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Name: Xxxxxxxxx Xxxxx
Title: Trust Officer
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