EXHIBIT (G)
Custodian Agreement
CUSTODY AGREEMENT
AGREEMENT, dated as of December ___, 1998 between Conseco Series Trust
("Fund"), on behalf of each of the series listed on Appendix I (each a
"Portfolio") and The Bank of New York ("Custodian").
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words shall have the
meanings set forth below:
1. "AUTHORIZED PERSON" shall be any person, whether or not an officer
or employee of Fund, duly authorized by Fund to give Oral and/or Written
Instructions on behalf of Fund, such persons to be designated in a Certificate
of Authorized Persons which contains a specimen signature of such person.
2. "BNY AFFILIATE" shall mean any office, branch or subsidiary of The
Bank of New York Company, Inc.
4. "BOOK-ENTRY SYSTEM" shall mean the Federal Reserve/Treasury book-
entry system for receiving and delivering securities, its successors and
nominees.
5. "BUSINESS DAY" shall mean any day on which Custodian, Book-Entry
System and relevant Depositories are open for business.
6. "DEPOSITORY" shall include the Depository Trust Company, the
Participants Trust Company, Euro-clear, Cedel, S.A. and any other securities
depository or clearing agency (and their respective successors and nominees)
registered with the U.S. Securities and Exchange Commission or otherwise
authorized to act as a securities depository or clearing agency.
7. "FOREIGN SECURITIES" shall include, without limitation, securities
issued by a government other than the United States government or a corporation
or other entity organized under the laws of any country other than the United
States and the securities issued by the United States government or by a state
or political subdivision thereof or by an agency thereof or by any entity
organized under the laws of the United States or of any state thereof which have
been issued and sold primarily outside the United States.
8. "ORAL INSTRUCTIONS" shall mean verbal instructions received by
Custodian from an Authorized Person or from a person reasonably believed by
Custodian to be an Authorized Person.
9. "UCC" shall mean the Uniform Commercial Code as in effect in the
State of New York.
10. "SECURITIES" shall include, without limitation, securities held in
the Book-Entry System or at a Depository, Foreign Securities, common stock and
other equity securities, bonds, debentures and other debt securities, notes,
mortgages or other obligations, and any instruments representing rights to
receive, purchase, or subscribe for the same, or representing any other rights
or interests therein.
11. "WRITTEN INSTRUCTIONS" shall mean any notices, instructions or
other instruments in writing received by Custodian from an Authorized Person or
from a person reasonably believed by Custodian to be an Authorized Person by
letter, telex, facsimile or electronic transmission, Custodian's on-line
communication system, or any other method whereby Custodian is able to verify
with a reasonable degree of certainty the identity of the sender of such
communications or the sender is required to provide a password or other
identification code.
ARTICLE II
APPOINTMENT OF CUSTODIAN; ACCOUNTS;
REPRESENTATIONS AND WARRANTIES
1. Fund, on behalf of each Portfolio, hereby appoints Custodian as
custodian of all Securities and cash at any time delivered to Custodian during
the term of this Agreement.
(a) Fund, on behalf of each Portfolio, authorizes Custodian to hold.
Securities in registered form in its name or the name of its nominees. Custodian
hereby accepts such appointment and agrees to establish and maintain one or more
securities accounts and cash accounts in the name of Fund (collectively, the
"Account") in which it will hold.
Securities and cash as provided herein.
(b) The Account shall constitute a "securities account" within the
meaning of Section 8-501 of the UCC, and Custodian agrees that all Securities
and other assets (other than money) of the Series that are credited to the
Account shall constitute "financial assets," as such term is
defined in Section 8-102(a)(9) of the UCC. Except as specified in the next
sentence, the Fund shall have a "security entitlement," as that term is defined
in Section 8-102(a)(17) the UCC, with Custodian with respect to such financial
assets. To the extent that any financial assets are registered in the name of,
payable to the order of, or specially endorsed to the Fund and have not been
endorsed to Custodian (or if applicable, the Book Entry System or the
Depository) or in blank, Custodian shall hold such financial assets in the
Account as custodian and bailee for and on behalf of the Fund in accordance with
the terms of this Agreement.
2. Fund hereby represents and warrants, which representations and
warranties shall be continuing and shall be deemed to be reaffirmed upon each
Oral or Written Instruction given by Fund, on behalf of a Portfolio, that:
(a) Fund is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement and to perform its obligations
hereunder;
(b) This Agreement has been duly authorized, executed and delivered by
Fund, constitutes a valid and legally binding obligation of Fund, enforceable in
accordance with its terms, and no statute, regulation, rule, order, judgment or
contract binding on Fund prohibits Fund's execution or performance of this
Agreement;
(c) Either a Portfolio owns the. Securities in the Account free and
clear of all liens, claims, security interests and encumbrances (except those
granted herein) or, if the. Securities are owned beneficially by others, a
Portfolio has the right to pledge such Securities to the extent necessary to
secure that Portfolio's obligations hereunder, free of any right of redemption
or prior claim by the beneficial owner. Custodian's security interest pursuant
to Article V hereof shall be a first lien and security interest subject to no
setoffs, counterclaims or other liens prior to or on a parity with it in favor
of any other party (other than specific liens granted preferred status by
statute), and Fund shall take any and all reasonable additional steps which
Custodian requires to assure itself of such priority and status, including
notifying third parties or obtaining their consent to, Custodian's security
interest; and
(d) Fund undertakes to comply with all applicable requirements of any
laws, rules, regulations and governmental authorities having jurisdiction over
Fund and its business.
3. Custodian hereby represents and warrants, which representations and
warranties shall be continuing and shall be deemed to be reaffirmed upon each
Oral or Written Instruction received by Custodian, that:
(a) Custodian is duly organized and existing under the laws of the
jurisdiction of its organization, with full power to carry on its business as
now conducted, to enter into this Agreement and to perform its obligations
hereunder; and
(b) This Agreement has been duly authorized, executed and delivered by
Custodian, constitutes a valid and legally binding obligation of Custodian,
enforceable in accordance with its terms, and no statute, regulation, rule,
order, judgment or contract binding on Custodian prohibits Custodian's execution
or performance of this Agreement; and
(c) Custodian undertakes to comply with all applicable requirements of
any laws, rules, regulations and governmental authorities having jurisdiction
with respect to the duties to be performed by Custodian pursuant to this
Agreement.
ARTICLE III
CUSTODY AND RELATED SERVICES
1. Subject to the terms hereof, Fund hereby authorizes Custodian to
hold any Securities received by it from time to time for a Portfolio's account.
(a) Custodian shall be entitled to utilize the Book-Entry System and
Depositories to the extent possible in connection with its performance
hereunder. Securities and cash deposited by Custodian in the Book-Entry System
or a Depository will be held subject to the rules, terms and conditions of the
Book-Entry System or such Depository. Custodian shall identify on its books and
records the. Securities and cash belonging to each Portfolio, whether held
directly or indirectly through the Book-Entry System or a Depository. Securities
and cash of each Portfolio deposited in the Book-Entry System or a Depository
will be represented in accounts which include only assets held by Custodian for
its customers.
(b) Customer hereby authorizes Custodian to appoint one or more banking
institutions located outside of the United States as its subcustodian or
correspondent (each a "Foreign Subcustodian") in connection with the purchase,
sale or custody of a Portfolio's Foreign Securities.
2. Custodian shall furnish Fund with (a) an advice of daily
transactions, (b) a monthly statement summarizing all transactions and entries
for each Portfolio's Account, including all cash deposits and disbursements, and
listing all Securities in the Account, and (c) such periodic and special reports
as may be mutually agreed.
3. With respect to all Securities held in the Account, Custodian shall,
unless otherwise instructed to the contrary in writing:
(a) Receive and deposit all income, interest, dividends and other
payments and advise Fund as promptly as practicable of any such
amounts due but not paid;
(b) Present for payment and receive the amount paid upon all Securities
which may mature or be called, redeemed, retired or otherwise presented for
payment and advise Fund as promptly as practicable of any such amounts due but
not paid;
(c) Forward to Fund copies of all information or documents that it may
receive from an issuer of Securities which, in the reasonable opinion of
Custodian, are intended for the beneficial owner of Securities;
(d) Execute, as custodian, any certificates of ownership, affidavits,
declarations or other certificates under any tax laws now or hereafter in effect
in connection with the collection of bond and note coupons;
(e) Hold directly, or through the Book-Entry System, a Depository or
Foreign Subcustodian, all rights and similar. Securities including stock
distributions and dividends issued with respect to any Securities credited to
the Account hereunder; and
(f) Endorse and deposit for collection checks, drafts or other
negotiable instruments.
4. (a) Whenever Securities (including, but not limited to, warrants,
options, tenders, options to tender or non-mandatory puts or calls) confer
optional rights on Fund or provide for discretionary action or alternative
courses of action by Fund, Fund shall be responsible for making any decisions
relating thereto and for directing Custodian to act. In order for Custodian to
act, it must receive Fund's Written Instructions at Custodian's offices,
addressed as Custodian may from time to time reasonably request, not later than
noon (New York time) at least two (2) Business Days prior to the last scheduled
date to act with respect to such Securities (or such earlier date or time as
Custodian may notify Fund). If Custodian provides such notification to Fund less
than two Business Days prior to the last scheduled date to act with respect to
such Securities, Fund agrees to direct Custodian regarding the action to be
taken promptly upon receipt. Upon receipt of Written Instructions, Custodian
will exchange Securities held hereunder for other Securities and/or cash in
connection with any conversion privilege, reorganization, recapitalization,
redemption in kind, consolidation, tender offer or exchange offer, or any
exercise or subscription, purchase or other similar rights represented by
Securities. Absent Custodian's timely receipt of such Written Instructions,
Custodian shall not be liable for failure to take any action relating to or to
exercise any rights conferred by such Securities.
(b) Custodian shall notify Fund as promptly as practicable under the
circumstances of such rights or discretionary actions or of the date or dates by
when such rights must be exercised or such action must be taken provided that
Custodian has received, from the issuer or the relevant Depository, timely
notice of such rights or discretionary corporate action or of the date or dates
such rights must be exercised or such action must be taken. Absent actual
receipt of such notice, Custodian shall have no liability for failing to so
notify Fund.
5. All voting rights with respect to Securities, however registered,
shall be exercised by Fund or its designee. Custodian's only duty shall be to
mail to Fund any documents (including proxy statements, annual reports and
signed proxies) relating to the exercise of such voting rights as promptly as
practicable under the circumstances.
6. Custodian shall as promptly as practicable under the circumstances
advise Fund upon its notification of the partial redemption, partial payment or
other action affecting less than all Securities of the relevant class. If
Custodian or Depository holds any Securities in which a Portfolio has an
interest as part of a fungible mass, Custodian or Depository may select the
Securities to participate in such partial redemption, partial payment or other
action in any non-discriminatory manner that it customarily uses to make such
selection.
7. Custodian shall not under any circumstances accept bearer interest
coupons which have been stripped from United States federal, state or local
government or agency securities unless explicitly agreed to by Custodian in
writing.
8. For the purpose of settling purchases of Foreign Securities and
foreign exchange transactions, the applicable Portfolio shall provide Custodian
with sufficient immediately available funds for all transactions by such time
and date as local conditions in the relevant market dictate.
(a) As used herein "sufficiently immediately available funds" shall
mean either (i) sufficient United States currency to purchase the necessary
foreign currency, or (ii) sufficiency applicable foreign currency, to settle the
transaction. Custodian shall provide Fund with immediately available funds each
day which result from the actual settlement of all sale transactions, based upon
advices received by Custodian from its Foreign Subcustodians and Depositories.
Such funds shall be in United States dollars or such other currency as the Fund
may specify to Custodian.
(b) Custodian is authorized to enter into spot or forward foreign
currency exchange transactions in connection with transactions in Foreign
Securities, or as otherwise may be requested by Fund and agreed to by Custodian.
Such contracts may be entered with Custodian or a BNY Affiliate acting as
principal or otherwise through customary banking channels. All expenses and
risks incident to the collection and conversion of currencies (including rate
fluctuations) shall be assumed by the applicable Portfolio.
10. Custodian is authorized to deliver or caused to be delivered
Securities against payment or other consideration or written receipt for the
exchange of interim receipts or temporary Securities for definitive Securities
and for transfer of Securities into the Account, or for exchange of Securities
for a different number of bonds, certificates, or other evidence, representing
the same aggregate face amount or number of units bearing
the same interest rate, maturity date and call provisions.
ARTICLE IV
PURCHASE AND SALE OF SECURITIES;
CREDITS TO ACCOUNT
1. Promptly after each purchase or sale of Securities by a Portfolio,
Fund shall deliver to Custodian Written Instructions specifying all information
necessary for Custodian to settle such purchase or sale. Custodian shall account
for all purchases and sales of Securities on the actual settlement date unless
otherwise agreed by Custodian.
2. Custodian is instructed to settle all transactions involving
Securities (other than Foreign Securities) in accordance with street delivery
custom. Fund understands that when Custodian is instructed to deliver Securities
against payment, delivery of such Securities and receipt of payment therefor may
not be completed simultaneously. Fund assumes full responsibility for all credit
risks involved in connection with Custodian's delivery of Securities pursuant to
instructions of Fund.
3. Custodian may, as a matter of bookkeeping convenience or by separate
agreement with Fund, credit the Account with the proceeds from the sale,
redemption or other disposition of Securities or interest, dividends or other
distributions payable on Securities prior to its actual receipt of final payment
therefor. All such credits shall be conditional until Custodian's actual receipt
of final payment and may be reversed by Custodian to the extent that final
payment is not received. Payment with respect to a transaction will not be
"final" until Custodian shall have received immediately available funds which
under applicable law or rule are irreversible and not subject to any security
interest, levy or other encumbrance, and which are specifically applicable to
such transaction.
4. Upon Fund's Oral or Written Instructions, Custodian shall purchase
or sell Securities and is authorized to utilize any broker or agent in
connection with any such transactions, including BNY Affiliates. Custodian shall
not be liable for the acts or omissions of any such broker or agent, other than
a BNY Affiliate.
5. Provided that Custodian has acted without negligence, Custodian
shall have no obligation, and shall not be liable, for any loss or damage
whatsoever, resulting from its failure to settle any Security transaction where
the rules of a Depository prevent the receipt or delivery of such Security
(i.e., that the Security has been "chilled"). Custodian may, but is not
obligated to, attempt to utilize alternative methods of delivering Securities
from time to time offered by a Depository.
ARTICLE V
OVERDRAFTS OR INDEBTEDNESS
If Custodian in its sole discretion advances funds to a Portfolio which
results in an overdraft in the Account (including, without limitation,
overdrafts incurred in connection with the settlement of securities transactions
or funds transfers) or if a Portfolio is for any other reason indebted to
Custodian in connection with this Agreement, such overdraft or indebtedness
shall be deemed to be a loan made by Custodian to Portfolio payable on demand
and shall bear interest from the date incurred at Custodian's prime commercial
lending rate as publicly announced to be in effect from time to time, such rate
to be adjusted on the effective date of any change in such rate. In order to
secure repayment of a Portfolio's obligations to Custodian hereunder, Fund
hereby agrees that Custodian shall have a continuing lien and security interest
in, and right of set-off against, all Securities, money and other property now
or hereafter held in the Account (including proceeds thereof), and any other
property at any time held by it for the account of that Portfolio, provided that
the lien, security interest and right of set-off shall at all times be
enforceable only to the extent of the advance, overdraft or indebtedness. In
this regard, Custodian shall be entitled to all the rights and remedies of a
pledgee under common law and a secured party under the New York Uniform
Commercial Code and any other applicable laws, rules or regulations as then in
effect.
ARTICLE VI
CONCERNING CUSTODIAN
1. (a) Custodian shall exercise reasonable care in performing its
obligations hereunder and except as otherwise expressly provided herein,
Custodian shall not be liable for any costs, expenses, damages, liabilities or
claims including attorneys' and accountants' fees (collectively, "Losses")
incurred by or asserted against Fund or Portfolio, except those Losses arising
out of the bad faith, negligence or willful misconduct of Custodian. Custodian
shall have no obligation hereunder for Losses which are sustained or incurred by
reason of any action or inaction by the Book-Entry System or any Depository,
unless such action or inaction is caused by the negligence or willful misconduct
of Custodian. With respect to any Losses incurred by Fund or a Portfolio as a
result of the acts or the failure to act by any foreign Subcustodian, Custodian
shall take appropriate action to recover such Losses from such Foreign
Subcustodian (exclusive of costs and expenses incurred by Custodian). In no
event shall Custodian be liable to Fund or any third party for special, indirect
or consequential damages, or lost profits or loss of business, arising in
connection with this Agreement.
(b) Fund agrees to indemnify Custodian and hold Custodian harmless from
and against any and all Losses sustained or incurred by or asserted against
Custodian by reason of or as a result of any action or inaction, or arising out
of Custodian's performance hereunder, including reasonable fees and expenses of
counsel incurred by Custodian in a successful defense of claims by Fund;
provided, that Fund shall not indemnify Custodian for those Losses arising out
of Custodian's bad faith, negligence or willful misconduct. This indemnity shall
continue and shall be
binding on Fund's successors and assigns under the same terms and be subject to
the same limitations, even after the termination of this Agreement.
2. Without limiting the generality of the foregoing, Custodian shall
not obligated to inquire into, and shall not be liable for, the validity of any
Securities purchased or sold by a Portfolio, the legality of their purchase or
sale, the propriety of the amount paid therefor upon purchase or sale, or any
actions of third parties with respect to the negotiability of Securities.
3. Custodian may, with respect to questions of law specifically
regarding the Account, obtain the advice of counsel (at its own expense) and may
reasonably rely in good faith and act reasonably in conformity with such advice.
4. Custodian shall be under no obligation to take action to collect any
amount payable on Securities in default, or if payment is refused after due
demand and presentment, but shall notify Fund as promptly as practicable under
the circumstances of such default or refusal to pay.
5. Custodian shall have no duty or responsibility to inquire into, make
recommendations, supervise, or determine the suitability of any transactions
affecting any Account.
6. Fund shall pay to Custodian the fees and charges set forth on the
Fee Schedule attached hereto (or as may be agreed upon from time to time), and
shall reimburse Custodian for all costs associated with the conversion of Fund's
Securities hereunder and the transfer of Securities and records kept in
connection with this Agreement. Fund shall also reimburse Custodian for
out-of-pocket expenses as agreed. Custodian may debit the Account for amounts
payable hereunder which remain in arrears for over 60 days.
7. Custodian shall be entitled to reasonably rely upon any Written or
Oral Instruction actually received by Custodian and reasonably believed by
Custodian to be duly authorized and delivered. Fund agrees to forward to
Custodian Written Instructions confirming Oral Instructions by the close of
business of the same day that such Oral Instructions are given to Custodian.
Fund agrees that the fact that such confirming Written Instructions are not
received or that contrary Written Instructions are received by Custodian after
Custodian has acted upon Oral Instructions shall in no way affect the validity
or enforceability of transactions authorized by such Oral Instructions and
effected by Custodian. If Fund elects to transmit Written Instructions through
an on-line communication system offered by Custodian, Fund's use thereof shall
be subject to the Terms and Conditions attached hereto as Appendix II.
8. To the extent that Custodian has agreed to provide pricing or other
information services in connection with this Agreement, Custodian is authorized
to utilize any vendor (including brokers and dealers of Securities) reasonably
believed by Custodian to be reliable to provide such information. Custodian
shall not be liable for any loss, damage or expense incurred as a result of
errors or omissions of such pricing information service, broker or dealer.
9. Upon reasonable request, Fund shall have access to Custodian's books
and records relating to the Account during Custodian's normal business hours.
Upon reasonable request, copies of any such books and records shall be provided
to Fund at Fund's expense.
10. It is understood that Custodian is authorized to supply any
information regarding the Account which is required by any law, regulation or
rule now or hereafter in effect.
11. Custodian shall not be responsible or liable for any failure or
delay in the performance of its obligations under this Agreement arising out of
or caused, directly or indirectly, by circumstances beyond its reasonable
control, including without limitation, acts of God; earthquakes; fires; floods;
wars; civil or military disturbances; sabotage; epidemics; riots; interruptions,
loss or malfunctions of utilities, computer (hardware or software) or
communications service; accidents; labor disputes; acts of civil or military
authority or governmental actions; it being understood that Custodian shall use
its best efforts to resume performance as soon as practicable under the
circumstances.
12. Custodian may enter into subcontracts, agreement and understanding
with any BNY Affiliate whenever and on such terms and conditions as it deems
necessary or appropriate to perform its services hereunder. No such subcontract,
agreement or understanding shall discharge Custodian from its obligations
hereunder.
13. Custodian shall have no duties or responsibilities whatsoever
except such duties and responsibilities as are specifically set forth in this
Agreement, and no covenant or obligation shall be implied against Custodian in
connection with this Agreement.
ARTICLE VII
TERMINATION
Either party may terminate this Agreement (with respect to one or more
Portfolios or in the entirety) 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 such notice. Upon termination hereof, applicable
Portfolio(s) shall pay to Custodian such compensation as may be due to
Custodian, and shall likewise reimburse Custodian for other amounts payable or
reimbursable to Custodian hereunder. Custodian shall follow such reasonable
Written Instructions concerning the transfer of custody of records, Securities
and other items as Fund shall give; provided, that (a) Custodian shall have no
liability for shipping and insurance costs associated therewith, and (b) full
payment shall have been made to Custodian of its compensation, costs, expenses
and other amounts to which it is entitled hereunder.
(a) In the event termination notice is given by the Fund, it shall be
accompanied by a copy of a resolution of the Board of Trustees 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 the Board of Trustees of the Fund, 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, expenses and other amounts for the payment of reimbursement
of which it shall then be entitled.
(b) If a successor custodian is not designated by the Fund or 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 moneys then owned
by the Fund be deemed to be its own custodian and the Custodian shall thereby be
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.
(c) Notwithstanding the foregoing, the Fund may terminate this
Agreement upon the date specified in a written notice in the event of the
bankruptcy of the Custodian, or any other event that the Fund reasonably
believes materially adversely affects the continued financial viability of the
Custodian.
(d) Upon termination of this Agreement, except as otherwise provided
herein, all obligations of the parties to each other hereunder shall cease.
ARTICLE VIII
CONFIDENTIALITY
Custodian agrees to keep confidential all records of Fund and all
information relating to Fund and its shareholders ("Material"), except that the
following information shall not be subject to the foregoing confidentiality
requirement: (i) Material in the public domain at the time of disclosure, (ii)
Material required to be disclosed by subpoena or similar process or applicable
law or regulations or to any regulatory or administrative body or commission to
whose jurisdiction Custodian may be subject, (iii) Material that becomes
available to Custodian on a non-confidential basis from a source not known by
Custodian to owe a duty of confidentiality to Fund, and (iv) Material disclosed
in connection with any litigation or dispute involving Fund and Custodian.
ARTICLE IX
DISASTER RECOVERY
Custodian shall use commercially reasonable efforts to enter into and
maintain with appropriate parties such arrangements as Custodian in its sole
discretion determines are reasonable to provide for emergency use of electronic
data processing equipment. In the event of equipment failure, Custodian shall,
at no additional expense to Fund, take such steps that Custodian in its sole
discretion determines are reasonable under the circumstances to minimize service
interruptions.
ARTICLE X
MISCELLANEOUS
1. Fund agrees to furnish to Custodian a new Certificate of Authorized
Persons in the event of any change in the then present Authorized Persons. Until
such new Certificate is received, Custodian shall be fully protected in acting
upon Oral Instructions and Written Instructions of such present Authorized
Persons.
2. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to Custodian, shall be sufficiently given if
addressed to Custodian and received by it at its offices at 00 Xxxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, ATTENTION: Mutual Funds Administration, or at
such other place as Custodian may from time to time designate in writing.
3. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to Fund shall be sufficiently given if addressed to
Fund and received by it at its offices at Conseco, Attention: Treasury, 00000 X.
Xxxxxxxxxxxx, Xxxxxx, Xxxxxxx 00000, or at such other place as Fund may from
time to time designate in writing.
4. Each and every right granted to either party hereunder or under any
other document delivered hereunder or in connection herewith, or allowed it by
law or equity, shall be cumulative and may be exercised from time to time. No
failure on the part of either party to exercise, and no delay in exercising, any
right will operate as a waiver thereof, nor will any single or partial exercise
by either party of any right
preclude any other or future exercise thereof or the exercise of any other
right.
5. 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
shall 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, except as express
provided herein.
6. This Agreement shall be construed in accordance with the substantive
laws of the State of New York, without regard to conflicts of laws principles
thereof. Fund and Custodian hereby consent to the jurisdiction of a state or
federal court situated in New York City, New York in connection with any dispute
arising hereunder.
7. The parties hereto agree that in performing hereunder, Custodian is
acting solely on behalf of Fund and no contractual or service relationship shall
be deemed to be established hereby between Custodian and any other person.
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.
9. This Agreement, or any term thereof, may be changed or waived only
by written amendment, signed by the party against whom enforcement of such
change or waiver is sought.
10. Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liability of each Portfolio are separate and distinct
from the assets and liabilities of each other Portfolio and that no Portfolio
shall be liable or shall be charged for any debt, obligation or liability of any
other Portfolio.
11. The parties agree that neither the shareholders, trustees,
officers, employees nor any agent of the Fund shall be liable hereunder and that
the parties to this Agreement other than the Fund shall look solely to the Fund
property for the performance of this Agreement or payment of any claim under
this Agreement.
IN WITNESS WHEREOF, Fund and Custodian have caused this Agreement to be
executed by their respective officers, thereunto duly authorized, as of the day
and year first above written.
CONSECO SERIES TRUST, on behalf of each Portfolio
By:
------------------------------------
Title:
THE BANK OF NEW YORK
By:
------------------------------------
Title:
APPENDIX I
LIST OF SERIES OF CONSECO SERIES TRUST ("PORTFOLIOS")
CONSECO SERIES TRUST, on behalf of each Portfolio
Date: By:
-------- ------------------------------------
Title:
THE BANK OF NEW YORK
Date: By:
------- ------------------------------------
Title:
APPENDIX II
THE BANK OF NEW YORK
ON-LINE COMMUNICATIONS SYSTEM (THE "SYSTEM")
TERMS AND CONDITIONS
1. LICENSE; USE. Upon delivery to Fund of software enabling Fund to
obtain access to the System (the "Software"), Custodian grants to Fund a
personal, nontransferable and nonexclusive license to use the Software solely
for the purpose of transmitting Written Instructions, receiving reports, making
inquiries or otherwise communicating with Custodian in connection with the
Account(s). Fund shall use the Software solely for its own internal and proper
business purposes and not in the operation of a service bureau. Except as set
forth herein, no license or right of any kind is granted to Fund with respect to
the Software. Fund acknowledges that Custodian and its suppliers retain and have
title and exclusive proprietary rights to the Software, including any trade
secrets or other ideas, concepts, know-how, methodologies, or information
incorporated therein and the exclusive rights to any copyrights, trademarks and
patents (including registrations and applications for registration of either),
or other statutory or legal protections available in respect thereof. Fund
further acknowledges that all or a part of the Software may be copyrighted or
trademarked (or a registration or claim made therefor) by Custodian or its
suppliers. Fund shall not take any action with respect to the Software
inconsistent with the foregoing acknowledgments, nor shall Fund attempt to
decompile, reverse engineer or modify the Software. Fund may not copy, sell,
lease or provide, directly or indirectly, any of the Software or any portion
thereof to any other person or entity without Custodian's prior written consent.
Fund may not remove any statutory copyright notice or other notice included in
the Software or on any media containing the Software. Fund shall reproduce any
such notice on any reproduction of the Software and shall add any statutory
copyright notice or other notice to the Software or media upon Custodian's
request.
2. EQUIPMENT. Fund shall obtain and maintain at its own cost and
expense all equipment and services, including but not limited to communications
services, necessary for it to utilize the Software and obtain access to the
System, and Custodian shall not be responsible for the reliability or
availability of any such equipment or services.
3. PROPRIETARY INFORMATION. The Software, any data base and any
proprietary data, processes, information and documentation made available to
Fund (other than which are or become part of the public domain or are legally
required to be made available to the public) (collectively, the "Information"),
are the exclusive and confidential property of Custodian or its suppliers. Fund
shall keep the Information confidential by using the same care and discretion
that Fund uses with respect to its own confidential property and trade secrets,
but not less than reasonable care. Upon termination of the Agreement or the
Software license granted herein for any reason, Fund shall return to Custodian
any and all copies of the Information which are in its possession or under its
control.
4. MODIFICATIONS. Custodian reserves the right to modify the Software
from time to time and Fund shall install new releases of the Software as
Custodian may direct. Fund agrees not to modify or attempt to modify the
Software without Custodian's prior written consent. Fund acknowledges that any
modifications to the Software, whether by Fund or Custodian and whether with or
without Custodian's consent, shall become the property of Custodian.
5. NO REPRESENTATIONS OR WARRANTIES. CUSTODIAN AND ITS MANUFACTURERS
AND SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE
SOFTWARE, SERVICES OR ANY DATABASE, EXPRESS OR IMPLIED, IN FACT OR IN LAW,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. FUND ACKNOWLEDGES THAT THE SOFTWARE, SERVICES AND ANY
DATABASE ARE PROVIDED "AS IS." IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE
LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT SPECIAL, OR CONSEQUENTIAL,
WHICH FUND MAY INCUR IN CONNECTION WITH THE SOFTWARE, SERVICES OR ANY DATABASE,
EVEN IF CUSTODIAN OR SUCH SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IN NO EVENT SHALL CUSTODIAN OR ANY SUPPLIER BE LIABLE FOR ACTS OF GOD,
MACHINE OR COMPUTER BREAKDOWN OR MALFUNCTION, INTERRUPTION OR MALFUNCTION OF
COMMUNICATION FACILITIES, LABOR DIFFICULTIES OR ANY OTHER SIMILAR OR DISSIMILAR
CAUSE BEYOND THEIR REASONABLE CONTROL.
6. SECURITY; RELIANCE; UNAUTHORIZED USE. Fund will cause all persons
utilizing the Software and System to treat all applicable user and authorization
codes, passwords and authentication keys with extreme care. Custodian is hereby
irrevocably authorized to act in accordance with and rely on Written
Instructions received by it through the System. Fund acknowledges that it is its
sole responsibility to assure that only Authorized Persons use the System and
that Custodian shall not be responsible nor liable for any unauthorized use
thereof.
7. SYSTEM ACKNOWLEDGMENTS. Custodian shall acknowledge through the
System its receipt of each transmission communicated through the System, and in
the absence of such acknowledgment Custodian shall not be liable for any failure
to act in accordance with such transmission and Fund may not claim that such
transmission was received by Custodian.
8. EXPORT RESTRICTIONS. EXPORT OF THE SOFTWARE IS PROHIBITED BY UNITED
STATES LAW. FUND MAY NOT UNDER ANY CIRCUMSTANCES RESELL, DIVERT, TRANSFER,
TRANSSHIP OR OTHERWISE DISPOSE OF THE SOFTWARE (IN ANY FORM) IN OR TO ANY OTHER
COUNTRY. IF CUSTODIAN DELIVERED THE SOFTWARE TO FUND OUTSIDE OF THE UNITED
STATES, THE SOFTWARE WAS EXPORTED FROM THE UNITED STATES IN ACCORDANCE WITH THE
EXPORT ADMINISTRATION REGULATIONS. DIVERSION CONTRARY TO U.S. LAW IS PROHIBITED.
Fund hereby authorizes Custodian to report its name and address to government
agencies to which Custodian is required to provide such information by law.
CERTIFICATE OF AUTHORIZED PERSONS
(FUND - ORAL AND WRITTEN INSTRUCTIONS)
The undersigned hereby certifies that he/she is the duly elected and
acting ______________________ of _____________________________________________
(the "Corporation"), and further certifies that the following officers or
employees of the Corporation have been duly authorized in conformity with the
Corporation's Articles of Incorporation and By-Laws to deliver Oral and Written
Instructions to The Bank of New York ("BNY") pursuant to the Custody Agreement
between the Corporation and BNY dated _______________, and that the signatures
appearing opposite their names are true and correct:
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
This certificate supersedes any certificate of authorized individuals
you may currently have on file.
[corporate ___________________________________________
seal]
Title:
Date:
CUSTODY ACCOUNT AGENCY AUTHORIZATION
Reference is made to the Custody Agreement (the "Custody Agreement") dated
as of ____________________ between ____________________________________________
("Fund") and The Bank of New York ("BNY").
This is to advise BNY that for the account(s) identified below Fund has duly
authorized the following investment managers (each, an "Investment Manager") to
act as Fund's agent for the purpose of (a) delivering Oral and Written
Instructions to BNY (as defined in the Custody Agreement), and/or (b) buying and
selling foreign currency (on a spot and forward basis) and options to buy and
sell foreign currency, as such purposes are designated below, and to confirm to
BNY that all actions taken by BNY in reliance upon such authorization (whether
in its capacity as custodian or counterparty) shall be binding on Fund.
INVESTMENT MANAGER ACCOUNT TITLE/NUMBER INST. F/X
--------------------------------------- ------------------------ ----- -----
--------------------------------------- ------------------------ ----- -----
--------------------------------------- ------------------------ ----- -----
--------------------------------------- ------------------------ ----- -----
--------------------------------------- ------------------------ ----- -----
--------------------------------------- ------------------------ ----- -----
--------------------------------------- ------------------------ ----- -----
--------------------------------------- ------------------------ ----- -----
-----------------------------------
[corporate By
seal] ----------------------------------
Title:
Date:
CERTIFICATE OF AUTHORIZED PERSONS
(INVESTMENT MANAGER - ORAL AND WRITTEN INSTRUCTIONS)
Re: Account Name:
Account Number:
The undersigned hereby certifies that he/she is the duly elected and acting
______________________ of _____________________________________________________
(the "Investment Manager"), and further certifies that the following officers or
employees of the Investment Manager have been duly authorized in conformity with
the Investment Manager's organizational documents to deliver oral and written
instructions to The Bank of New York ("BNY") with respect to the
above-referenced Account, and that the signatures appearing opposite their names
are true and correct:
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
This certificate supersedes any certificate of authorized individuals
you may currently have on file.
[seal]
----------------------------------------
Title:
Date:
CERTIFICATE OF AUTHORIZED PERSONS
(FUND - FOREIGN EXCHANGE)
The undersigned hereby certifies that he/she is the duly elected and acting
______________________ of _______________________________________________ (the
"Corporation"), and further certifies that the following officers or employees
of the Corporation have been duly authorized in conformity with the
Corporation's Articles of Incorporation and By-Laws to enter into contracts with
The Bank of New York ("BNY") to buy and sell foreign currency (on a spot and
forward basis) and options to buy and sell foreign currency on behalf of the
Corporation or any Account ("F/X Transactions"), and that the signatures
appearing opposite their names are true and correct:
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
and further certifies that the following officers or employees of the
Corporation have been duly authorized in conformity with the Corporation's
Articles of Incorporation and By-Laws to confirm, orally and in writing, the
terms of F/X Transactions entered with BNY, and that the signatures appearing
opposite their names are true and correct:
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
------------------------- --------------------- -------------------------------
Name Title Signature
This certificate supersedes any certificate of authorized individuals
you may currently have on file.
[corporate
seal] ------------------------------------------
Title:
Date:
CERTIFICATE OF AUTHORIZED PERSONS
(INVESTMENT MANAGER - FOREIGN EXCHANGE)
Re: Account Name:
Account Number:
The undersigned hereby certifies that he/she is the duly elected and acting
______________________ of ______________________________________________________
(the "Investment Manager"), and further certifies that the following officers or
employees of the Investment Manager have been duly authorized in conformity with
the Investment Manager's organizational documents to enter into contracts with
The Bank of New York ("BNY") to buy and sell foreign currency (on a spot and
forward basis) and options to buy and sell foreign currency on behalf of the
above-referenced Account ("F/X Transactions"), and that the signatures appearing
opposite their names are true and correct:
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
and further certifies that the following officers or employees of the Investment
Manager have been duly authorized in conformity with the Investment Manager's
organizational documents to confirm, orally and in writing, the terms of F/X
Transactions entered by the Investment Manager with BNY, and that the signatures
appearing opposite their names are true and correct:
-------------------------- --------------------- ------------------------------
Name Title Signature
-------------------------- --------------------- ------------------------------
Name Title Signature
------------------------- --------------------- ------------------------------
Name Title Signature
This certificate supersedes any certificate of authorized individuals
you may currently have on file.
[seal]
----------------------------------
Title:
Date:
CERTIFICATION
The undersigned, ________________________, hereby certifies that he or she
is the duly elected and acting _____________________________________________ of
___________________________________, a ____________________ corporation (the
"Corporation"), and further certifies that the following resolution was adopted
by the Board of Directors of the Corporation on ___________________, and that
such resolution has not been modified or rescinded and is in full force and
effect as of the date hereof:
RESOLVED, that the Corporation is hereby authorized to enter
into any contracts to buy and sell foreign currency (on a
spot and forward basis) and options to buy and sell foreign
currency, whether pursuant to oral, telex, SWIFT, telecopier
or electronic instructions or otherwise, and that The Bank
of New York is hereby authorized to act and rely on any such
instructions, as understood by it and believed by it to be
genuine; and, in connection with any such transaction, any
officer, employee or agent as designated by the Corporation
may execute and deliver, in the name and on behalf of the
Corporation, any and all agreements and confirmations
containing any terms, conditions, representations,
warranties, covenants, amendments, waivers, releases and
instructions whatsoever and incur and pay any fees, costs,
expenses, liabilities and claims, all without limitation.
[seal]
---------------------------
Secretary
