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EXHIBIT 8(d)
CUSTODY AGREEMENT
This Custody Agreement is dated April 4, 1997 between XXXXXX XXXXXXX
TRUST COMPANY, a New York State chartered trust company (the "Custodian"), and
SCHWAB ANNUITY PORTFOLIOS, a Massachusetts business trust on behalf of its
investment portfolios (the "Client").
1. Appointment and Acceptance; Accounts. (a) The Client hereby
appoints the Custodian as a custodian of Property (as defined below) owned or
under the control of the Client that are delivered to the Custodian, or any
Subcustodian as appointed below, from time to time to be held in custody for the
benefit of the Client. The Custodian agrees to act as such custodian upon the
terms and conditions hereinafter provided. The Custodian also undertakes to
comply with the requirements of Section 17(f) of the Investment Company Act of
1940, as amended (the "1940 Act") and the rules and regulations promulgated in
connection with Section 17(f) of the 1940 Act with respect to all duties to be
performed by the Custodian pursuant to this Agreement, which requirements the
Custodian represents and warrants are the only provisions of the 1940 Act
applicable to it as a custodian of the Property.
(b) Prior to the delivery of any Property by the Client to the
Custodian, the Client shall deliver to the Custodian each document and other
item listed in Appendix 1. In addition, the Client shall deliver to the
Custodian any additional documents or items as the Custodian may deem necessary
for the performance of its duties under this Agreement.
(c) The Client instructs the Custodian to establish on the books and
records of the Custodian the accounts listed in Appendix 2 (the "Accounts") in
the name of the Client. Upon receipt of Authorized Instructions (as defined
below) and appropriate documentation, the Custodian shall open additional
Accounts for the Client, including any Accounts requested by the Client to
facilitate its compliance with laws, regulations or agreements applicable to the
Client. Upon the Custodian's confirmation to the Client of the opening of such
additional Accounts, or of the closing of Accounts, Appendix 2 shall be deemed
automatically amended or supplemented accordingly. The Custodian shall record in
the Accounts and shall have general responsibility for the safekeeping of all
securities ("Securities"), cash, cash equivalents and other property (all such
Securities, cash, cash equivalents and other property being collectively the
"Property") of the Client that are delivered to the Custodian for custody.
(d) The procedures the Custodian and the Client will use in
performing activities in connection with this Agreement are set forth in a
client services guide provided to the Client by the Custodian, as such guide may
be amended from time to time by the Custodian (the "Client Services Guide") with
10 days' prior written notice and the consent of the Client; provided, however,
that any customer enhancement or amendments deemed necessary by the Custodian in
order to comply with existing or new rules, regulations or market practices, in
any jurisdiction, may be made by Custodian without the consent of the Client;
and provided, further, that the
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Custodian will use its reasonable efforts to promptly notify the Client in
advance of any such enhancement or amendment. The Client Services Guide is
incorporated herein by reference, and to the extent that the terms and
conditions of this Agreement conflict with those of the Client Service Guide,
the terms and conditions of this Agreement shall govern.
2. Subcustodians. The Property may be held in custody and deposit
accounts that have been established by the Custodian with one or more domestic
or foreign banks or other institutions as listed on Exhibit A (the
"Subcustodians"), as such Exhibit may be amended from time to time by the
Custodian by 90 days' prior written notice to the Client, or through the
facilities of one or more securities depositories or clearing agencies as listed
on Exhibit B, as may be changed from time to time by the Custodian by 90 days'
prior written notice, if possible, or by notice given to the Client as soon as
the Custodian is reasonably able, upon the Custodian's receipt of notice of the
change of any securities depository or clearing agency. Each of the entities
listed on Schedule A are "eligible foreign custodians" (as such term is defined
in Rule 17f-5(c)(2) of the 0000 Xxx) or is a domestic bank or trust company
qualified to act as a custodian under the 1940 Act. The Custodian shall
continuously monitor the eligibility of the Subcustodians, and if, at any time,
the Custodian determines that a Subcustodian no longer satisfies the
requirements of an "eligible foreign custodian" or of a domestic bank or trust
company qualified to act as a custodian under the 1940 Act, it shall promptly
give written notice to the Client of such information. The Custodian shall hold
Property through a Subcustodian, securities depository or clearing agency only
if (a) such Subcustodian and any securities depository or clearing agency in
which such Subcustodian or the Custodian holds Property, or any of their
creditors, may not assert any right, charge, security interest, lien,
encumbrance or other claim of any kind to the Property except a claim of payment
for its safe custody or administration and (b) beneficial ownership of such
Property may be freely transferred without the payment of money or value other
than for safe custody or administration. Any Subcustodian may hold Property in a
securities depository and may utilize a clearing agency.
3. Records. The books and records of the Client shall be
prepared and maintained as provided in this Section 3 and consistent with
Rule 17f-5(a)(1)(iii)(D) of the 1940 Act. With respect to Property held by a
Subcustodian:
(a) The Custodian may hold Property for all of its customers with a
Subcustodian in a single account identified as belonging to the Custodian
for the benefit of its customers;
(b) The Custodian shall identify on its books as belonging to
the Client any Property held by a Subcustodian for the Custodian's
account;
(c) The Custodian shall require that Property held by the
Subcustodian for the Custodian's account be identified on the
Subcustodian's books as separate from any other property held by the
Subcustodian other than property of the Custodian's customers held solely
for the benefit of customers of the Custodian; and
(d) In the event the Subcustodian holds Property in a securities
depository or clearing agency, such Subcustodian shall be required by its
agreement with the Custodian
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to identify on its books such Property as being held for the account of
the Custodian as custodian for its customers or in such other manner as is
required by local law or market practice.
4. Access to Records. The Custodian shall allow the Client and its
designees access to the Custodian's records relating to the Property held by the
Custodian. The Custodian shall also obtain from any Subcustodian (and shall
require each Subcustodian to use reasonable efforts to obtain from any
securities depository or clearing agency listed on Exhibit B) an undertaking, to
the extent consistent with local practice and the laws of the jurisdiction or
jurisdictions to which such Subcustodian, securities depository or clearing
agency is subject, to permit the Client and its independent public accountants
and their designated representatives such access to the records of such
Subcustodian, securities depository or clearing agency as may be reasonably
required in connection with the examination of the Client's affairs or to take
such other action as the Custodian in its judgment may deem sufficient to ensure
such access.
5. Reports. The Custodian shall provide such reports and other
information to the Client and to such persons as the Client directs, including
reports (or portions thereof) of the Custodian's system of internal accounting
controls applicable to the Custodian's duties under this Agreement and such
other reports as the Custodian and the Client may agree upon from time to time.
6. Payment of Monies. The Custodian shall make, or cause any
Subcustodian to make, payments from monies being held in the Accounts only in
accordance with Authorized Instructions or as provided in Sections 9, 13 and 17.
The Custodian may act as the Client's agent or act as a principal in
foreign exchange transactions at such rates as are agreed from time to time
between the Client and the Custodian.
7. Transfer of Securities. The Custodian shall make, or cause
any Subcustodian to make, transfers, exchanges or deliveries of the Property
only in accordance with Authorized Instructions or as provided in Sections 9,
13 and 17.
8. Corporate Action. (a) The Custodian shall notify the Client
of details of all corporate actions affecting the Client's Property promptly
upon its receipt of such information.
(b) The Custodian shall take, or cause any Subcustodian to take,
such corporate action only in accordance with Authorized Instructions or as
provided in this Section 8 or Section 9.
(c) In the event the Client does not provide timely Authorized
Instructions to the Custodian in connection with any corporate action the
Custodian shall act in accordance with the default option provided in the Client
Service Guide and/or the issuer of the Securities and the Custodian shall give
the Client written notice of any such action.
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(d) Fractional shares resulting from corporate action activity shall
be treated in accordance with local market practices.
9. General Authority. In the absence of Authorized Instructions
to the contrary, the Custodian may, and may authorize any Subcustodian to:
(a) make payments to itself or others for expenses of handling
Property or other similar items relating to its duties under this
Agreement, provided that all such payments shall be accounted for to the
Client;
(b) receive and collect all income and principal with respect to
Securities and to credit cash receipts to the Accounts;
(c) exchange Securities when the exchange is purely ministerial
(which ministerial activities shall include without limitation, the
exchange of interim receipts or temporary securities for securities in
definitive form and the exchange of warrants, or other documents of
entitlement to securities, for the securities themselves);
(d) surrender Securities at maturity or when called for
mandatory redemption upon receiving payment therefor;
(e) execute in the Client's name such ownership and other
certificates as may be required to obtain the payment of income from
Securities;
(f) pay or cause to be paid, from the Accounts, any and all taxes
and levies in the nature of taxes imposed on Property by any governmental
authority in connection with custody of and transactions in such Property;
(g) endorse for collection, in the name of the Client, checks,
drafts and other negotiable instruments;
(h) take non-discretionary action on mandatory corporate
actions; and
(i) in general, attend to all nondiscretionary details in connection
with the custody, sale, purchase, transfer and other dealings with the
Property.
10. Authorized Instructions; Authorized Persons. (a) Except as
otherwise provided in Sections 6 through 9, 13 and 17, all payments of monies,
all transfers, exchanges or deliveries of Property and all responses to
corporate actions shall be made or taken only upon receipt by the Custodian of
Authorized Instructions; provided that such Authorized Instructions are timely
received by the Custodian. "Authorized Instructions" of the Client means
instructions from an Authorized Person received either directly or through the
Client's fund accountant by telecopy, tested telex, electronic link,
mainframe-to-mainframe computer link ("mainframe link") or other electronic
means or by such other means as may be agreed in writing between the Client and
the Custodian.
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(b) "Authorized Person" means each of the persons or entities
identified on Appendix 3 as amended from time to time by written notice from the
Client to the Custodian. The Client represents and warrants to the Custodian
that each Authorized Person listed in Appendix 3, as amended from time to time,
is authorized to issue Authorized Instructions on behalf of the Client. Prior to
the delivery of the Property to the Custodian, the Custodian shall provide (i) a
list of designated system user ID numbers and passwords that the Client shall be
responsible for assigning to Authorized Persons or (ii) a mainframe link to be
used by Authorized Persons. The Custodian shall assume that an electronic
transmission received and identified by a system user ID number and password or
mainframe link was sent by an Authorized Person. The Custodian agrees to provide
additional designated system user ID numbers and passwords or mainframe links as
needed by the Client. The Client authorizes the Custodian to issue new system
user ID numbers or mainframe links upon the request of a then currently existing
Authorized Person. Upon the issuance of additional system user ID numbers or
mainframe links by the Custodian to the Client, Appendix 3 shall be deemed
automatically amended accordingly. The Client authorizes the Custodian to
receive, act and rely upon any Authorized Instructions received by the Custodian
which have been issued, or which the Custodian reasonably believes have been
issued by an Authorized Person.
(c) Any Authorized Person may cancel/correct or otherwise amend any
Authorized Instruction received by the Custodian, but the Client agrees to
indemnify the Custodian for any liability, loss or expense incurred by the
Custodian and its Subcustodians as a result of their having relied upon or acted
on any prior Authorized Instruction. An amendment or cancellation of an
Authorized Instruction to deliver or receive any security or funds in connection
with a trade will not be processed once the trade has settled.
11. Registration of Securities. (a) In the absence of Authorized
Instructions to the contrary, Securities which must be held in registered form
shall be registered in the name of the Custodian or the Custodian's nominee or,
in the case of Securities in the custody of an entity other than the Custodian,
in the name of the Custodian, its Subcustodian or any such entity's nominee. The
Custodian may, without notice to the Client, cause any Securities to be
registered or re-registered in the name of the Client.
(b) Where the Custodian has been instructed by the Client to hold
any Securities in the name of any person or entity other than the Custodian, its
Subcustodian or any such entity's nominee, the Custodian shall not be
responsible for any failure to collect such dividends or other income or
participate in any such corporate action with respect to such Securities.
12. Deposit Accounts. All cash received by the Custodian for the
Accounts shall be held by the Custodian as a short-term credit balance in favor
of the Client and, if the Custodian and the Client have agreed in writing in
advance that such credit balances shall bear interest, the Client shall earn
interest at the rates and times as agreed between the Custodian, and the Client
and the Custodian shall notify the Client of the applicable interest rate and
times. The Client acknowledges that any such credit balances shall not be
accompanied by the benefit of any governmental insurance.
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13. Short-term Credit Extensions. (a) From time to time, the
Custodian may extend or arrange short-term credit for the Client which is (i)
necessary in connection with payment and clearance of securities and foreign
exchange transactions or (ii) pursuant to an agreed schedule, as and if set
forth in the Client Services Guide, of credits for dividends and interest
payments on Securities. All such extensions of credit shall be repayable by the
Client on demand.
(b) The Custodian shall be entitled to charge the Client interest
for any such credit extension at rates to be agreed upon from time to time or,
if such credit is arranged by the Custodian with a third party on behalf of the
Client, the Client shall reimburse the Custodian for any interest charge, and in
each case the Custodian shall notify the Client of the applicable interest
rates. In addition to any other remedies available, the Custodian shall be
entitled to a right of set-off against the Property to satisfy the repayment of
such credit extensions and the payment of, or reimbursement for, accrued
interest thereon.
14. Representations and Warranties. (a) The Client represents and
warrants that (i) the execution, delivery and performance of this Agreement
(including, without limitation, the ability to obtain the short-term extensions
of credit in accordance with Section 13) are within the Client's power and
authority and have been duly authorized by all requisite action (corporate or
otherwise) of the Client and of the beneficial owner of the Property, if other
than the Client, and (ii) this Agreement and each extension of short-term credit
extended to or arranged for the benefit of the Client in accordance with Section
13, shall at all times constitute a legal, valid and binding obligation of the
Client enforceable against the Client in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights in general and subject to the
effect of general principles of equity (regardless of whether considered in a
proceeding in equity or at law).
(b) The Custodian represents and warrants that (i) the execution,
delivery and performance of this Agreement are within the Custodian's power and
authority and have been duly authorized by all requisite action (corporate or
otherwise) of the Custodian and (ii) this Agreement constitutes the legal, valid
and binding obligation of the Custodian enforceable against the Custodian in
accordance with its terms, except as may be limited by bankruptcy, insolvency or
other similar laws affecting the enforcement of creditors' rights in general and
subject to the effect of general principles of equity (regardless of whether
considered in a proceeding in equity or at law).
15. Standard of Care; Indemnification. (a) The Custodian shall be
responsible for the performance of only such duties as are set forth in this
Agreement or contained in Authorized Instructions given to the Custodian which
are not contrary to the provisions of any relevant law or regulation. The
Custodian shall be liable to the Client for any loss, liability or expense
incurred by the Client in connection with the performance of the Custodian's
responsibilities under this Agreement to the extent that any such loss,
liability or expense results from the negligence or willful misconduct of the
Custodian or any Subcustodian; provided, however that neither the Custodian nor
any Subcustodian shall be liable to the Client for any indirect, special or
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consequential damages. The Custodian shall not be liable for any loss, liability
or expense resulting from events beyond the control of the Custodian or any
Subcustodian, including, but not limited to, force majeure.
(b) The Client acknowledges that the Property may be physically held
outside the United States.
(c) In addition, the Client shall indemnify the Custodian and
Subcustodians and any nominee for, and hold each of them harmless from, any
liability, loss or expense (including attorneys' fees and disbursements)
incurred in connection with the Client's obligations under this Agreement,
including without limitation, (i) as a result of the Custodian having acted or
relied upon any Authorized Instructions or (ii) arising out of any such person
acting as a nominee or holder of record of Securities; provided, however, that
the Client shall not indemnify or hold harmless any of such entities where any
such liability, loss or expense is as a result of or has arisen from the
negligence or willful misconduct of the Custodian, any Subcustodian, any of
their nominees or any agent appointed by the Custodian or any Subcustodian to
perform their obligations under this Agreement.
16. Fees; Liens. The Client shall pay to the Custodian from time to
time such compensation for its services pursuant to this Agreement as may be
mutually agreed upon as well as the Custodian's out-of-pocket and incidental
expenses. The Client shall hold the Custodian harmless from any liability or
loss resulting from any taxes or other governmental charges, and any expenses
related thereto, which may be imposed or assessed with respect to the Accounts
or any Property held therein. The Custodian is, and any Subcustodians are,
authorized to charge the Accounts for such items. The Client shall grant the
Custodian a lien on the Property to the extent necessary: (1) to cover any
temporary short-term credit extensions under Section 13 of this Agreement, and
(2) to cover any temporary borrowing in connection with fees payable hereunder
for safe custody or administration. The Custodian shall give reasonable notice
to the Client prior to taking any action to enforce the lien granted to the
Custodian in this Section 16.
17. Termination. This Agreement may be terminated by the Client or
the Custodian by 60 days written notice to the other, sent by registered mail.
If notice of termination is given, the Client shall, within 30 days following
the giving of such notice, deliver to the Custodian a statement in writing
specifying the successor custodian or other person to whom the Custodian shall
transfer the Property. In either event, the Custodian, subject to the
satisfaction of any lien it may have, shall transfer the Property to the person
so specified. If the Custodian does not receive such statement the Custodian, at
its election, may transfer the Property to a bank or trust company established
under the laws of the United States or any state thereof, if such bank or trust
company is qualified to be a Custodian pursuant to the 1940 Act, to be held and
disposed of pursuant to the provisions of this Agreement or may continue to hold
the Property until such a statement is delivered to the Custodian. In such event
the Custodian shall be entitled to fair compensation for its services during
such period as the Custodian remains in possession of any Property and the
provisions of this Agreement relating to the duties and obligations of the
Custodian shall remain in full force and effect; provided, however, that the
Custodian shall have
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no obligation to settle any transactions in Securities for the Accounts. The
provisions of Sections 15 and 16 shall survive termination of this Agreement.
18. Investment Advice. The Custodian shall not supervise, recommend
or advise the Client relative to the investment, purchase, sale, retention or
other disposition of any Property held under this Agreement.
19. Confidentiality. (a) The Custodian, its agents and employees
shall maintain the confidentiality of information concerning the Property held
in the Client's account, including in dealings with affiliates of the Custodian.
In the event the Custodian or any Subcustodian is requested or required to
disclose any confidential information concerning the Property by any court or
regulatory authority, the Custodian shall, to the extent practicable and legally
permissible, promptly notify the Client in writing of such request or
requirement so that the Client may seek a protective order or waive any
objection to the Custodian's or such Subcustodian's compliance with this Section
19. In the absence of such a waiver, if the Custodian or such Subcustodian is
compelled, in the opinion of its counsel, to disclose any confidential
information, the Custodian or such Subcustodian may disclose such information to
such persons as, in the opinion of counsel, is so required.
(b) The Client shall maintain the confidentiality of, and not
provide to any third parties absent the written permission of the Custodian, any
computer software, hardware or communications facilities made available to the
Client or its agents by the Custodian.
20. Notices. Any notice or other communication from the Client to
the Custodian, unless otherwise provided by this Agreement or the Client
Services Guide, shall be sent by certified or registered mail to Xxxxxx Xxxxxxx
Trust Company, Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx, 00000, Attention:
President, and any notice from the Custodian to the Client is to be mailed
postage prepaid, addressed to the Client at the address appearing below, or as
it may hereafter be changed on the Custodian's records in accordance with
written notice from the Client.
21. Assignment. This contract may not be assigned by either party
without the prior written approval of the other.
22. Miscellaneous. (a) This Agreement shall bind the successors and
assigns of the Client and the Custodian.
(b) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York without regard to its conflicts
of law rules and to the extent not preempted by federal law. The Custodian and
the Client hereby irrevocably submit to the exclusive jurisdiction of any New
York State court or any United States District Court located in the State of New
York in any action or proceeding arising out of this Agreement and
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hereby irrevocably waive any objection to the venue of any such action or
proceeding brought in any such court or any defense of an inconvenient forum.
(c) The names "Schwab Annuity Portfolios" and "Trustees of Schwab
Annuity Portfolios" refer respectively to the Trust created and the Trustees, as
trustees but not individually or personally, acting from time to time under the
Declaration of Trust, to which reference is hereby made and a copy of which is
on file at the office of the Secretary of the Commonwealth of Massachusetts and
elsewhere as required by law, and to any and all amendments thereto so filed or
hereafter filed. The obligations of "Schwab Annuity Portfolios" entered into in
the name or on behalf thereof by any of the Trustees, representatives or agents
are made not individually, but in such capacities, and are not binding upon any
of the Trustees, interest holders or representatives of the Trust personally,
but bind only the assets of the Trust, and all persons dealing with any series
of units of interest of the Trust must look solely to the assets of the Trust
belonging to such series for the enforcement of any claims against the Trust.
In witness whereof, the parties hereto have set their hands as of
the date first above written.
SCHWAB ANNUITY PORTFOLIOS
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President and
Chief Operating Officer
Address for record: c/o Xxxxxxx Xxxxxx Investment
Management, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Secretary
Accepted:
XXXXXX XXXXXXX TRUST COMPANY
By: /s/ Authorized Signature
------------------------
Authorized Signature
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EXHIBIT 8(d)
AMENDMENT DATED AS OF APRIL 4, 1997
BETWEEN XXXXXX XXXXXXX TRUST COMPANY ("THE CUSTODIAN")
AND SCHWAB ANNUITY PORTFOLIOS ("THE CLIENT")
WHEREAS the Custodian and the Client have entered into a Custody Agreement
dated as of April 4, 1997 (as amended from time to time, the "Agreement") for
the safekeeping of securities and cash received by the Custodian for the account
of the Client;
WHEREAS, the client has opened an account with Short-Term Investments Co.
in order to invest in their Liquid Assets Portfolio, MSTC Cash Reserves Class
(the "Fund");
WHEREAS, the Client and the Custodian have agreed to enter into this
Amendment in order to authorize the Custodian to take certain additional actions
on behalf of the Client;
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
1 Terms defined in the Agreement are used herein with their defined
meanings.
2 Notwithstanding any provisions in the Custody Agreement to the contrary,
the Client hereby directs the Custodian to transfer to Client's account #
______________ with the Fund (the "Fund Account"), on a daily basis, any
US dollar cash received by the Custodian for the Client's Accounts
specified on Schedule 1 hereto, in excess of the amount deemed necessary
to settle Client's cash and securities transactions. If the US dollar cash
received by the Custodian on the Client's behalf is not adequate to settle
such transactions, the Client hereby authorizes the Custodian to cause
shares to be redeemed from Client's Fund Account in amounts necessary to
settle such transactions.
3 The Client hereby authorizes the Custodian to provide the Fund Management
Company ("FMC"), an agent on behalf of the Fund, such information with
respect to the Client as may be required by applicable laws and
regulations or as may be reasonably requested by FMC and approved by the
Client in writing.
4 The Client acknowledges that the Custodian has entered into a Shareholder
Service Agreement with FMC on behalf of the Fund for certain
administrative services the Custodian provided to the Fund. The Custodian
receives a fee for such services as set forth in the Prospectus of the
Fund under "Annual Portfolio Operating Expenses, 12b-1 Fees."
5 The Client confirms that any decision to invest in the Fund is solely a
decision of the Client and the Client has not relied on the Custodian for
any investment advice. The Client confirms further that the Custodian is
not exercising any discretionary authority with respect to the Client's
investments in the Fund.
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6 Except as expressly amended hereby, all terms and provisions of the
Agreement are and shall continue to be in full force and effect. This
Amendment shall be construed in accordance with the applicable laws of the
State of New York. This Amendment may be executed by one or both of the
parties hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this amendment to be
duly executed and delivered by their respective authorized officers as of
the day and year first above written.
XXXXXX XXXXXXX TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Principal and Treasurer
SCHWAB ANNUITY PORTFOLIOS
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
And Chief Operating Officer
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Schedule 1
Client Accounts
Account Name Account Number Account Mnemonic
------------ -------------- ----------------
1. Schwab Asset Director 000-42991 SHGP
High Growth Portfolio
