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EXHIBIT 8
Form of Custodian Agreement
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CUSTODY AGREEMENT
Agreement made as of this day of , between CANADA LIFE OF
AMERICA SERIES FUND, INC., a corporation organized and existing under the laws
of the State of Maryland, and duly registered as a management investment company
under the Investment Company Act of 1940, having its principal office and place
of business at 000 Xxxxxxxxxx Xxx., Xxxxxxx, Xxxxxx X0X 0X0 (hereinafter called
the "FUND"), and CHASE MANHATTAN BANK, N.A., a New York corporation authorized
to do a banking business, having its principal office and place of business at
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, X.X. 00000 (hereinafter called the
"Custodian").
WITNESSETH:
that for and in consideration of the mutual promises hereinafter set forth the
Fund 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. "Authorized Person" shall be deemed to include the Chairman, the
President, and Vice President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer or any other person, whether or not any such
person is an Officer or employee of the Fund, duly authorized by the Board of
Directors of the Fund to give Oral Instructions and Written Instructions on
behalf of the Fund as certified in a Certificate in the form annexed hereto as
Appendix A or such other Certificate as may be received by the Custodian from
time to time.
2. "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for United States and federal agency securities, its successor
or successors and its nominee or nominees.
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 which bears or
purports to bear the
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signature (including a facsimile signature) of any two Officers of the Fund.
4. "Depository" shall mean The Depository Trust Company ("DTC"), a
clearing agency registered with the Securities and Exchange Commission, its
successor or successors and its nominee or nominees, provided the Custodian has
received a certified copy of a resolution of the Fund's Board of Directors
specifically approving deposits in DTC. The term "Depository" shall further
mean and include any other person authorized to act as a depository under the
Investment Company Act of 1940, its successor or successors and its nominee or
nominees, specifically identified in a certified copy of a resolution of the
Fund's Board of Directors specifically approving deposits therein by the
Custodian.
5. "Money Market Security" shall be deemed to include, without
limitation, debt obligations issued or guaranteed as to interest and principal
by the government of the United States or agencies or instrumentalities thereof,
commercial paper, certificates of deposit and bankers acceptances, repurchase
and reverse repurchase agreements with respect to the same, to the extent
permitted by law and bank time deposits, where the purchase and sale of such
securities normally requires settlement in federal funds on the same day as such
purchase or sale.
6. "Officers" shall be deemed to include the Chairman, the President,
any Vice President, the Secretary, any Assistant Secretary, the Treasurer, any
Assistant Treasurer or any other person or persons duly authorized by the Board
of Directors of the Fund to execute any Certificate, instruction, notice or
other instrument on behalf of the certified fund as in a Certificate in the form
annexed hereto as Appendix B or such other Certificate as may be received by the
Custodian from time to time.
7. "Oral Instructions" shall mean verbal instructions actually
received by the Custodian from a person reasonably believed by the Custodian to
be an Authorized Person. The Custodian may electronically record any Oral
Instructions given by telephone, and any other telephone discussions regarding
the accounts or transactions pursuant to this Agreement.
8. "Security" shall be deemed to include, without limitation, stock,
both common and preferred, Money Market Securities, 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, or any property or assets.
9. "Series" shall mean the various portfolios of the Fund as
described from time to time in the Fund's current and effective prospectus.
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10. "Shares" shall mean shares of capital stock of the Fund, each of
which is allocated to a particular Series.
11. "Written Instructions" shall mean written communications actually
received by the Custodian from a person reasonably believed by the Custodian to
be an Authorized Person. Written Instructions shall include instructions sent by
telex, TWX, facsimile transmission, bank wire or other such teleprocess or by
any other such method acceptable to the Custodian whereby the receiver of such
communications is reasonably able to verify by codes or otherwise (including
signature comparison or verification) the authenticity of the sender of such
communication. Written Instructions shall also include instructions transmitted
electronically through the Custodian's Info Cash or Customer Data Entry System.
The Fund agrees to give and to process any Written Instructions in accordance
with the terms and conditions for the use of any test arrangements,
authentication methods or other security devices used with respect to Written
Instructions which the Custodian may require. The Fund shall safeguard any
testkeys, identification codes or other security devices made available by the
Custodian and agree to be responsible for any loss, liability or damage incurred
by the Custodian or the Fund resulting from the Custodian acting in accordance
with instructions from any unauthorized person using the proper security device.
ARTICLE II
APPOINTMENT OF CUSTODIAN
1. The Fund hereby constitutes and appoints the Custodian as
custodian of all Securities and all cash at any time owned by the Fund during
the period of this Agreement other than cash from time to time deposited in a
checking account in accordance with Section 17(f) of the Investment Company Act
of 1940, as amended.
2. The Custodian hereby accepts appointment as such custodian and
agrees to perform the duties thereof as thereinafter set forth.
ARTICLE III
CUSTODY OF CASH AND SECURITIES
1. The Fund will deliver or cause to be delivered to the Custodian
all Securities and all cash owned by it, including cash received for the
issuance of its Shares, at any time during the period of this Agreement other
than cash from time to time deposited in a checking account in accordance with
Section 17(f) of the Investment Company Act of 1940, as amended, and shall
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specify with respect to Securities and cash delivered to the Custodian the
Series to which the same are specifically allocated. The Custodian shall
segregate, keep and maintain the assets of the Series separate and apart. The
Custodian will not be responsible for any Securities and cash not actually
received by it. The Custodian will be entitled to reverse any credits made,
including, without limitation, credits on the payable data for interest,
dividends or redemptions, on the Fund's behalf where such credits have been
previously made and moneys are not finally collected within a reasonable period
of time, as determined by the Custodian in its sole discretion. The Fund shall
deliver to the Custodian a certified resolution of the Board of Directors of the
Fund authorizing the Custodian to use the Book-Entry System. The Custodian is
hereby instructed on a continuous and on-going basis to deposit in the
Book-Entry System all Securities eligible for deposit therein, regardless of the
Series to which the same are specifically allocated, and to utilize the
Book-Entry System to the extent possible in connection with its performance
hereunder, including, without limitation, in connection with settlements of
purchases and sales of Securities, loans of Securities, and deliveries and
returns of Securities collateral, regardless of the Series to which the same are
specifically allocated.
Prior to a deposit of Securities in the Depository the Fund shall
deliver to the Custodian a certified resolution of the Board of Directors of the
Fund authorizing the Custodian to use the Depository. The Custodian is hereby
instructed on a continuous and ongoing basis until instructed to the contrary by
a Certificate actually received by the Custodian to deposit in the Depository
all Securities specifically allocated to such Series and eligible for deposit
therein, regardless of the Series to which the same are specifically allocated,
and to utilize the Depository to the extent possible with respect to such
Securities in connection with its performance thereunder, including, without
limitation, in connection with settlements of purchases and sales of Securities,
loans of Securities, and deliveries and returns of Securities collateral.
Securities and moneys specifically allocated to a Series deposited in either the
Book-Entry System or the Depository 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 shall be specifically allocated on the Custodian's
books to the separate account for such Series.
2. The Custodian shall establish and maintain separate accounts, in
the name of each Series, and shall credit to the separate account for each
Series all moneys received by it for the account of the Fund with respect to
such Series. Money credited to a separate account for a Series shall be
disbursed by the Custodian only:
(a) In payment for Securities purchased for such Series as
provided in Article IV hereof:
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(b) In payment of dividends or distributions with respect to
Shares of such Series, as provided in Article V hereof;
(c) In payment of original issue or other taxes with respect to
Shares of such Series, as provided in Article VI hereof;
(d) In payment for Shares of such Series redeemed by it, as
provided in Article VI hereof;
(e) Pursuant to Certificates setting forth the name and address
of the person to whom the payment is to be made, the Series account from which
payment is to be made, and the purpose for which payment is to be made; or
(f) In payment of the fees and in reimbursement of the expenses
and liabilities of the Custodian attributable to such Series, as provided in
Article VIII hereof.
3. Promptly after the close of business on each day the Custodian
shall furnish each Series of the Fund with confirmations and a summary, of all
transfers to or from the account of each Series thereunder during said day.
Where Securities are transferred to the account of the Fund hereunder for a
Series, the Custodian shall also by book entry or otherwise identify the
Securities belonging to such Series which compose a portion of the 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 the Book-Entry System or the
Depository. At least monthly and from time to time, as may be requested by the
Fund, or its independent accountants, the Custodian shall furnish to the Fund
and its independent accountants a detailed statement on a per Series basis of
the Securities and moneys held for the Fund under the Agreement, and shall
afford such independent accountants reasonable opportunity to determine the
adequacy and accuracy of all records reflecting such securities and money held
for the Fund hereunder.
4. All Securities held for the Fund, which are issued or issuable
only in bearer form, except such Securities as are held in the Book-Entry
System, shall be held by the Custodian in that form; all other Securities held
for the Fund may be registered in the name of the Fund, in the name of the
Custodian, in the name of any duly appointed registered nominee of the Custodian
as the Custodian may from time to time determine, or in the name of the
Book-Entry System or the Depository or their successor or successors, or their
nominee or nominees. The Fund 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 its name or in the name of its registered nominee or
in the name of the Book-Entry System or the Depository any Securities which it
may hold hereunder any which may, from time to time, be registered in the name
of the Fund. The Custodian
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shall hold all such Securities which are specifically allocated to a Series not
held in the Book-Entry System or in the Depository in a separate bank custody
account in the name of such Series physically segregated at all times from those
of any other person or persons.
5. Unless otherwise instructed to the contrary by a Certificate, the
Custodian by itself, or through the use of the Book-Entry System or the
Depository with respect to Securities and therein deposited, shall with respect
to all Securities held for the Fund in accordance with this Agreement:
(a) Collect all income due or payable;
(b) Present for payment and collect the amount payable upon all
Securities which may mature or be called, redeemed, or retired, or otherwise
become payable, to the extent that the Custodian is actually aware of such
opportunities;
(c) Exchange Securities for other Securities where the exchange
is purely ministerial as, for example, the exchange of Securities in temporary
form for Securities in definitive form or the mandatory exchange of
certificates;
(d) 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;
(e) Hold directly, or through the Book-Entry System or the
Depository with respect to Securities therein deposited, for the account of a
Series all rights and similar securities issued with respect to any Securities
held by the Custodian for such Series hereunder;
(f) Sell fractional interests resulting from a stock split or a
stock dividend and credit the appropriate account(s) with the proceeds thereof,
and, in connection with any such sale, take any action the Custodian deems, in
good faith, to be appropriate (including, without limitation, appointing a
broker to effectuate such sale), in which case the Custodian shall be held
harmless for any such action;
(g) Deliver to the Fund promptly all written information,
received by the Bank including, without limitation notices, proxies, (signed in
blank, if issued in the name of the Custodian's nominee or a nominee of the
Depository or Book-Entry System), consents, authorizations, and disclosure
materials to which the Fund would be entitled as the record owner of the
Securities held by the Custodian hereunder. In addition, the Custodian shall
follow coupon payments, redemptions, exchanges or similar matters with respect
to Securities and advise the Fund of rights issued, tender offers or any other
discretionary rights with respect to Securities, in each case, of which the
Custodian
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receives notice from the issuers of the Securities or as to which notice is
published in publications routinely utilized by the Custodian for this purpose.
6. Upon receipt of a Certificate or Written Instruction and not
otherwise, the Custodian, directly or through the use of the Book-Entry System
or the Depository 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 Fund as owner of any Securities may be exercised;
(b) Delivery any Securities held for the Fund in exchange for
other Securities or cash issued or paid in connection with the liquidation,
reorganization, refinancing, merger, consolidation or recapitalization or any
corporation, or the exercise of any conversion privilege and receive and hold
hereunder specifically allocated to such Series any cash or other Securities
received in exchange;
(c) Deliver any Securities held for the Fund to any protective
committee, reorganization committee or other person in connection with the
reorganization, refinancing, merger, consolidating, recapitalization or sale of
assets of any corporation, and receive and hold hereunder specifically allocated
to such Series such certificates of deposit, interim receipts or other
instruments or documents as may be issued to it to evidence such delivery; and
(d) Make such transfers or exchanges of the assets of the
Series specified in such Certificate and take such other steps as shall be
stated in such Certificate to be for the purposes of effectuating any duly
authorized plan of liquidation, reorganization, merger, consolidation or
recapitalization of the Fund.
ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE FUND
1. Promptly after each purchase of Securities by the Fund, the Fund
shall deliver to the Custodian (i) with respect to each purchase of Securities
which are not Money market Securities, a Certificate or Written Instruction, and
(ii) with respect to each purchase of Money Market Securities, a Certificate,
Oral Instructions or Written Instructions, specifying with respect to each such
purchases:
(a) the Series to which the purchased Securities are to be
specifically allocated,
(b) the name of the issuer and the title of the Securities,
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(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, and
(g) the name of the person from whom or the broker through whom
the purchase was made.
The Custodian shall upon receipt of Securities purchased by or for the Fund pay
out of the monies held for the account of the Series to which such Securities
are to be specifically allocated the total amount payable to the person from
whom or the broker through whom the purchase was made, provided that the same
conforms to the total amount payable as set forth in such Certificate, Oral
Instructions or Written Instructions.
2. Promptly after each sale of Securities by the Fund, the Fund shall
deliver to the Custodian (i) with respect to each sale of Securities which are
not Money Market Securities, a Certificate or Written Instruction, and (ii) with
respect to each sale of Money Market Securities, a Certificate, Oral
Instructions or Written Instructions, specifying with respect to each such
sales:
(a) the Series 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, and
(g) the name of the broker through whom or the person to whom
the sale was made.
The Custodian shall deliver the Securities against payment therefor from the
person to whom or the broker, dealer or other agent through whom the sale was
made, provided, however, that the Custodian shall be authorized, in accordance
with customary securities processing practice, to deliver Securities against a
receipt, with the exception of collecting payment from such person, broker,
dealer or other agent to whom Securities were
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delivered, before the close of business on the same day. The Custodian shall not
make delivery of Securities unless the total amount payable to the Fund upon
such sale conforms to the total amount payable as set forth in such Certificate,
Oral Instructions or Written Instructions. Subject to the foregoing, the
Custodian may accept payment in such form as shall be satisfactory to it, and
may deliver Securities and arrange for payment in accordance with customary
securities processing practices.
3. Notwithstanding the above, any payment or delivery in respect of
Securities may be made, in accordance with the customary or established
securities trading or securities processing practices and procedures of the
jurisdiction or market in which such transaction occurs, including without
limitation, delivery of Securities to a purchase, broker, dealer or their agents
against a receipt with the expectation of receiving later payment and free
delivery.
4. All collection and receipt of funds, Securities or other property
pursuant to this Agreement and all payment and delivery of funds, securities or
other property pursuant to this Agreement shall be made by the Custodian as
agent for the Fund and at the risk of the Fund, except as otherwise provided
herein, including, without limitation, the risk associated with the securities
processing practice of delivering securities against a receipt and the risk that
the counterparty in any transaction into which the Fund enters will not transfer
funds, Securities or other property hereunder or otherwise perform in accordance
with the Funds expectation of such counterparty's obligations thereunder.
5. The Custodian, in its discretion, may credit or debit the accounts
hereunder on a contractual settlement date with cash or Securities with respect
to any sale, exchange or purchase of Securities. Otherwise, such transactions
will be credited or debited to the accounts on the data cash or Securities are
actually received by the Custodian and reconciled to the accounts.
(i) The Custodian may reverse credits or debits made to the
accounts in its discretion if the related transaction fails to settle within a
reasonable period, determined by the Custodian in its discretion, after the
contractual settlement date for the related transaction.
(ii) If any Securities delivered pursuant hereto are returned by
the recipient thereof, the Custodian may reverse the credits and debits of the
particular transaction at any time.
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ARTICLE V
SALE AND REDEMPTION OF SHARES
1. Whenever the Fund shall sell any Shares of any Series of the Fund,
it shall deliver to the Custodian a Certificate duly specifying:
(a) the Series,
(b) the name of the insurance company separate account to which
the shares are sold and from which money is to be received, and
(c) The amount of money to be received by the Custodian for the
sale of such Shares and specifically allocated to the separate account in the
name of the Fund for such Series.
2. Upon receipt of such money from the transfer agent, the Custodian
shall credit such money to the separate account in the name of the Fund for the
Series for which such money wee received.
3. Upon issuance of any Shares of any Series described in the
foregoing provisions of this Article, the Custodian shall pay, out of the money
held for the account of the Fund, all original issue or other taxes required to
be paid by the Fund in connection with such issuance upon the receipt of a
Certificate specifying the amount to be paid.
4. Whenever the Fund shall hereafter redeem the Shares of any Series,
it shall furnish to the Custodian a Certificate specifying:
(a) the Series of Shares redeemed,
(b) the name of the insurance company separate account to which
money is to be paid, and
(b) the amount to be paid for such Shares.
ARTICLE VI
OVERDRAFTS OR INDEBTEDNESS
1. If the Custodian should in its sole discretion advance funds on
behalf of any Series which results in an overdraft because the moneys held by
the Custodian in the separate account for such Series shall be insufficient to
pay the total amount payable upon a purchase of Securities to be specifically
allocated to such Series as set forth in a Certificate or Oral Instructions
issued pursuant to Article IV, or which results in an overdraft in the separate
account of such Series for some other reason, or if the Fund is for any other
reason indebted to
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the Custodian with respect to a Series (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
VII), such overdraft or indebtedness shall be deemed to be a loan made by the
Custodian to the Fund for such Series payable 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 the 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. Any such overdraft or indebtedness shall be
reduced by an amount equal to the total of all amounts due the Fund with respect
to such Series which have not been collected by the Custodian on behalf of the
Fund when due because of the negligent failure of the Custodian to make timely
demand or presentation for payment. In addition, the Fund hereby agrees that the
Custodian shall have a continuing lien and security interest in and to any
property specifically allocated to such Series at any time held by it for the
benefit of such Series or in which the Fund may have an interest which is then
in the custodian's possession or control or in possession or control of any
third party acting in the Custodian's behalf. The Fund authorized the Custodian,
in its sole discretion, at any time, and upon reasonable notice to the Fund, to
charge any such overdraft or indebtedness together with interest due thereon
against any balance of account standing to such Series' credit on the
Custodian's books.
ARTICLE VIII
CONCERNING THE CUSTODIAN
1. The Custodian shall exercise the standard of care of a
professional custodian engaged in the banking or trust company industry and
having professional expertise in financial and securities processing
transactions and custody. Except as hereinafter provided, neither the Custodian
nor its nominees nor its agents (which the Custodian is hereby authorized to
retain to perform certain of its functions hereunder and which may include
subsidiaries or affiliates of the Custodian) shall be liable for any lose 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 negligence
or willful misconduct. The Custodian may, with respect to questions of law,
apply for and obtain the advice and opinion of counsel to the Fund or of its own
counsel, at the expense of the Fund, and shall by fully protected with respect
to anything done or omitted by it in good faith in conformity with such advice
or opinion. The custodian shall be liable to the Fund for any loss of damage
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resulting from the use of the Book-Entry System or any Depository arising by
reason of any negligence or willful misconduct on the part of the Custodian or
any of its employees. In the event that the Custodian should determine that
there has been any lose or damage involving Securities of the Fund deposited
with any Depository, the Custodian shall take such action with respect to its
rights and remedies, if any, against such Depository as the Custodian shall
reasonably deem appropriate. The Custodian shall credit to the Fund's account
hereunder the amount, if any, as determined by the Custodian, of the payments,
if any, recovered by the Custodian from, or for the account of, any Depository
as reimbursement for the lose of, or damage to, any Securities deposited by the
Custodian hereunder with said Depository. With respect to any lose or damage
which the Custodian may be liable hereunder, the Custodian shall be liable to
the Fund only to the extent of the Fund's general damages, determined based on
the market value of the property which is the subject of the lose at the date of
discovery of the loss. General damages shall mean only those damages as directly
and necessarily result from the Custodian's negligence or willful misconduct
without reference to any special conditions or circumstances of the Fund's
Series or of any transaction.
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 by or
for the Fund, the legality of the purchase thereof, of the property of the
amount paid therefor;
(b) The legality of the sale of any Securities by or for the
Fund, or the propriety of the amount for which the same are sold;
(c) The legality of the issue or sale of any Shares, or the
sufficiency of the amount to be received therefor;
(d) The legality of the redemption of any Shares, of the
propriety of the amount to be paid therefor;
(e) The legality of the declaration or payment of any dividend
by the Fund;
(f) The legality of any borrowing by the Fund using Securities
as collateral;
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 on behalf of the Fund
until the Custodian actually receives and collects such money directly or by the
final crediting of the account representing the Securities belonging to
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the Fund which compose a portion of the fungible bulk of Securities registered
in the name of the Custodian (or its nominee) or in the name of the Book-Entry
System or the Depository or their successor or successors, or their nominee or
nominees, as shown on the Custodian's account on the books of the Book-Entry
system or the Depository.
4. The Custodian shall not be under any duty or obligation to take
action to effect collection of any amount due to the Fund from the transfer
agent of the Fund nor to take any action to effect payment or distribution by
the transfer agent of the Fund of any amount paid by the Custodian to the
transfer agent of the Fund in accordance with this Agreement.
5. 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 (1) it shall be directed to take such action by a
Certificate, (ii) it shall be assured to its satisfaction of reimbursement of
its costs and expenses in connection with any such action, and (iii) it shall
agree to take such action.
6. The Custodian Shall not be under any duty or obligation to
ascertain whether any Securities at any time delivered to or held by it for the
account of the Fund and specifically allocated to a Series are such as properly
may be held by the Fund and allocated to such Series under the provisions of its
Articles of Incorporation and its then current prospectus.
7. Without limiting the generality of the foregoing, the Custodian
shall have no duty or responsibility;
(a) to supervise the investment of, or make recommendations
with respect to the purchase, retention or sale of, Securities or other property
hereunder;
(b) for any act or omission (except as may be otherwise
specifically permitted herein), or for the solvency or notice to the Fund of the
solvency, of any broker or agent which is selected by the Custodian (in the
absence of gross negligence or willful misconduct by the Custodian in such
selection) or by the Fund or any other person to effect any transaction
hereunder;
(c) to evaluate, or report to the Fund regarding the financial
condition of any party of which the Custodian delivers Securities, Shares,
payment or any other property pursuant to this Agreement; or
(d) for any lose occasioned by delay in the actual receipt of
notice by the Custodian of any payment, redemption or other transaction in
respect to which the Custodian is authorized to take some action pursuant to
this Agreement.
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8. The Custodian shall be entitled to receive and the Fund 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 Fund. The Custodian
may charge such compensation and any expenses incurred by the Custodian in the
performance of its duties with respect to a Series against any money
specifically allocated to a Series. Unless and until the Fund instructs the
Custodian by a Certificate to apportion any loss, damage, liability or expense
among this Series in a specified manner, the Custodian shall also be entitled to
charge against any money held by it for the account of any Series on a pro rata
basis among such Series (based on such Series' net asset value at the time of
the charge to the aggregate net asset value of all Series at that time) the
amount of any loss, damage, liability or expense, including counsel fees, for
which the Custodian shall be entitled to reimbursement under the provisions of
this Agreement.
9. The Custodian shall be entitled to rely upon any Certificate,
notice or other instrument in writing received by the Custodian and reasonably
believed the Custodian to be a Certificate. The Custodian shall be entitled to
rely upon any Oral Instructions and any Written Instructions actually received
by the Custodian pursuant to Articles IV or V hereof. The Fund agrees to forward
to the Custodian a Certificate confirming such Oral Instructions or Written
Instructions in such manner so that such a 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 or Written Instructions are given to the Custodian. The Fund agrees
that the fact that such confirming instructions are not received by the
custodian shall in no way affect the validity of the transactions or
enforceabilty of the transaction hereby authorized by the Fund. The Fund agrees
that the Custodian shall incur no liability to the Fund in acting upon Oral
Instructions or Written Instructions given to the Custodian hereunder concerning
such transactions provided that the Custodian reasonably believes that such
instructions were received from an Authorized Person. In the event that a
confirming Certificate is not received by the Custodian, the Custodian shall
notify the Fund of such fact, no later than ten days after receipt by the
Custodian of such unconfirmed Oral Instructions or Written Instructions.
Further, the Custodian shall incur no liability of the failure of any confirming
certificate or facsimile to conform to such Oral Instructions or Written
Instructions or for the Custodian's inability to produce such confirming
Certificate or facsimile at any subsequent time.
10. The books and records pertaining to the Fund which are in the
possession of the Custodian shall be made readily available to the Fund as
described below. Such books and records shall be prepared and maintained as
required by the Investment Company Act of 1940, as amended, and other applicable
securities laws and rules and regulations. The Fund, or the Fund's
16
authorized representatives, shall have reasonable access to such books and
records during the Custodian's normal business hours. Upon the reasonable
request of the Fund, copies of such books and records shall be provided by the
Custodian to the Fund or the Fund's authorized representative at the Fund's
expense.
11. The Custodian shall provide the Fund with any report obtained by
the Custodian on the system of internal accounting control of the Book-Entry
System or the Depository and with such reports on its own system of internal
accounting control as may be available and as the Fund, or its independent
accountants, may reasonably request from time to time.
12. On the date hereof, the Custodian maintains appropriate insurance
coverages, for its own protection, in amounts which the Custodian deems
appropriate. The Custodian agrees to promptly notify the Fund in the event such
insurance ceases for any reason to be maintained.
13. The Custodian shall have no duties or responsibilities whatsoever
except such duties and responsibility as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied in this Agreement
against the Custodian.
ARTICLE IX
TERMINATION
1. 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 sixty (60) days after the date of
giving of such notice. In the event such notice is given by the Fund, it shall
be accompanied by a copy of a resolution of the Board of Directors of the Fund,
certified by the Secretary or any Assistant Secretary, electing to terminate
this Agreement and 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 Fund shall, on or before the termination date, deliver to the
Custodian a copy of a resolution of its Board of Directors, certified by the
Secretary or any Assistant Secretary, designating a successor custodian or
custodians. In the absence of such designation by the Fund, the custodian may
designate a successor custodian which shall be a bank or trust company having
not less than $2,000,000 aggregate capital, surplus and undivided profits. Upon
the date set forth in such notice this Agreement shall terminate, and the
Custodian shall upon receipt of a notice of acceptance by the successor
custodian on that date deliver directly to the successor custodian all
Securities and moneys then owned by the Fund and held by it as Custodian, after
deducting all fees and expenses for the payment or reimbursement of which it
shall then be entitled.
17
2. If a successor custodian is not designated by the Fund of the
Custodian, in accordance with the preceding paragraph, the Fund shall upon the
date specified in the notice of termination of this Agreement and upon the
delivery by the Custodian of all Securities (other than Securities held in the
Book-Entry System which cannot be delivered to the Fund) and monies then owned
by the Fund, be deemed to be its own custodian and the Custodian shall thereby
by relieved of all duties and responsibilities pursuant to this Agreement, other
than the duty with respect to Securities held in the Book-Entry System which
cannot be delivered to the Fund to hold such Securities hereunder in accordance
with this Agreement.
ARTICLE X
MISCELLANEOUS
1. Annexed hereto as Appendix A is a Certificate signed by two of the
present Officers of the Fund under its corporate seal, setting forth the names
and the signatures of the present Authorized Persons. The Fund 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 upon Written
Instructions bearing or purporting to bear the signatures (including facsimile
signatures) of the present Authorized Persons as set forth in the last delivered
Certificate.
2. Annexed hereto as Appendix B is a Certificate signed by two of the
present Officers of the Fund under its corporate seal, setting forth the names
and the signatures of the present Officers of the Fund. The Fund agrees to
furnish to the Custodian a new Certificate in similar form in the event any such
present Officer ceases to be an Officer of the Fund, or in the event that other
or additional Officers 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 Certificates bearing or purporting to bear the
signatures (including facsimile signatures) of the Officers as set forth in the
last delivered Certificate.
3. 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 principal office
or at such other place as the Custodian may from time to time designate in
writing.
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4. Any notice or other instrument in writing, authorized or required
by this Agreement to be given to the Fund shall be sufficiently given if
addressed to the Fund and mailed or delivered to it at its principal office or
at such other place as the Fund may from time to time designate in writing.
5. This Agreement may not be amended or modified in any manner except
by a written agreement executed by both parties with the some formality as this
Agreement and approved by a resolution of the Board of Directors of the Fund.
6. 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 Fund 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 its Board of Directors.
7. This Agreement shall be governed and construed in accordance with
the laws of the State of New York. The headings of the provisions or paragraphs
hereof are included for convenience of reference only and do not form a part of
this Agreement.
8. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate Officers, thereunto duly authorized and
their respective corporate seals to be hereunto affixed, as of the day and year
first above written.
CANADA LIFE OF AMERICA SERIES FUND, INC.
By:
------------------------------------
Attest:
-------------------------
CHASE MANHATTAN BANK, N.A.
By:
------------------------------------
Attest:
-------------------------
19
APPENDIX A
I, , , and I, ,
of CANADA LIFE OF AMERICA SERIES FUND, INC., a Maryland
Corporation (the "Fund"), do hereby certify that:
The following individuals have been duly authorized by the Board of
Directors of the Fund in conformity with the Fund's Articles of Incorporation
and By-Laws to give Oral Instructions and Written Instructions on behalf of the
Fund, and the signatures set forth opposite their respective names are their
true and correct signatures:
Name Signature
------------------------------ ---------------------------
IN WITNESS WHEREOF, we have hereunto set our hands and the seal of CANADA
LIFE OF AMERICA SERIES FUND, INC. as of ,19 .
---------------------------
---------------------------
00
XXXXXXXX X
X, , , xxx X, ,
xx XXXXXX LIFE OF AMERICA SERIES FUND, INC., a Maryland
Corporation (the "FUND"), do hereby certify that:
The following individuals are duly authorized by the Board of Directors
of the Fund to execute any Certificate, instruction, notice or other instrument
on behalf of the Fund and serve in the following positions with the Fund and
each individual has been duly elected or appointed by the Board of Directors of
the Fund to each such position and qualified therefor in conformity with the
Fund's Articles of Incorporation and By-Laws, and the signatures set forth
opposite their respective names are their true and correct signatures:
Name Position Signature
---------------------- ------------------- -------------------------
IN WITNESS WHEREOF, we have hereunto set our hands and the seal of CANADA
LIFE OF AMERICA SERIES FUND, INC. as of , 19 .
--------------------------
--------------------------
Secretary
