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EXHIBIT 3
CONTINENTAL ASSURANCE COMPANY SEPARATE ACCOUNT
DOMESTIC CUSTODY AGREEMENT
To: THE CHASE MANHATTAN TRUST COMPANY OF ILLINOIS
00 Xxxxx XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Gentlemen:
We hereby request you to open and to maintain on your records a Custody
Account in our name as entitlement holder and to credit to such account
financial assets (hereinafter defined) and cash as our securities intermediary
upon the following terms and conditions.
Financial assets credited to the Custody Account shall be segregated at
all times from, and shall not become part of, your proprietary assets.
All such financial assets shall be either maintained by you or
deposited into a securities depository through one or more agents who shall be
banks or trust companies and shall be qualified to act as custodians for
investment companies.
DEFINITIONS. As used herein, the following terms shall have the
meaning hereinafter stated:
"Agreement" means this Domestic Custody Agreement.
"Custody Account" means, each securities account on your records to
which a financial asset and cash are or may be credited pursuant to
this Agreement.
"entitlement holder" means the person on the records of a securities
intermediary as the person having a security entitlement against the
securities intermediary.
"financial assets" means securities. As the context requires a
financial asset means either the interest itself or the means by which
a person's claim to it is evidenced, including a certificated or
uncertificated security, a security certificate, or a securities
entitlement.
"securities" means stocks, bonds, rights, warrants and other negotiable
and non-negotiable paper issued in certificated ("certificated
securities") or book entry form ("uncertificated securities") and
commonly traded or dealt in on securities exchanges or financial
markets, and other obligations of an issuer, or shares,
participations and interests in an issuer recognized in an area in
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which it is issued or dealt in as a medium for investment and any other
property as shall be acceptable to you for the Custody Account.
"securities entitlement" means the rights and property interest of a
entitlement holder with respect to a financial asset as set forth in
Part 5 of the Uniform Commercial Code.
"Securities intermediary" means, you, The Chase Manhattan Bank, a
Depository, and any other financial institution which in the ordinary
course of business maintains securities accounts for others and acts in
that capacity.
"Uniform Commercial Code" means the Uniform Commercial Code of the
State of Illinois.
TRANSACTIONS. Unless you receive contrary written instructions from
us, and subject to the provisions of this Agreement, you are authorized:
(a) to receive all interest and dividends payable on the financial
assets credited to the Custody Account and credit such interest and dividends
to the Custody Account (except as hereinafter set forth in the section
entitled "Miscellaneous"):
(b) to credit to the Custody Account all proceeds received from
sales and redemptions of financial assets credited to the Custody Account;
(c) to debit cash from the Custody Account for the cost of
acquiring financial assets for the Custody Account as provided in this
Agreement;
(d) to present financial assets (including coupons) for payment
upon maturity, when called for redemption and when income payments are due;
(e) to exchange financial assets for other financial assets where
the exchange is purely ministerial as, for example, the exchange of financial
assets in temporary form for financial assets in definitive form or the
mandatory exchange of financial assets;
(f) to sell financial assets with fractional interests resulting
from a stock split or a stock dividend and to credit the Custody Account with
the proceeds thereof;
(g) to convert moneys received with respect to financial assets of
foreign issue into United States dollars whenever it is practical to do so
through customary banking channels. In effecting such conversion you may use
any method or agency available to you, including the facilities of your own
divisions, subsidiaries or affiliates. You shall incur
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no liability on account of any loss suffered or expense incurred as a result of
such conversion, including, without limitation, losses arising from
fluctuations in exchange rates affecting any such conversion;
(h) to execute in our name, whenever you or your agents deem it
appropriate, such ownership and other certificates as may be required to obtain
payments with respect to, or to effect the sale, transfer or other disposition
of, financial assets in the Custody Account and to guarantee as our signature
the signature so affixed; and
(i) to receive and hold in the Custody Account financial assets
which have transfer limitations imposed upon them by the Securities Act of
1933, as amended.
INSTRUCTIONS. You are hereby authorized to rely and act upon all
written instructions which you believe in good faith to have been given by any
two persons from the following classes of officers ("Authorized Officers") and
individuals of our company:
1. The Chairman of the Board
2. The President
3. Any Vice President
4. The Secretary
5. The Treasurer
6. The Assistant Treasurer or the Assistant Secretary
7. Such other individuals who may be authorized in writing
to you (a copy of which shall be delivered to you) by any two of the above
Authorized Officers named in the Classes 1 to 6 inclusive, both of whom may be
in Class 3 and both of whom may not be in Class 6.
You will be entitled to rely conclusively on any certificate of the
Secretary or an Assistant Secretary of ours concerning the individuals duly
elected to the offices listed above and on any certificate of any two
Authorized Officers in Classes 1 to 6 inclusive authorizing any other
individuals to give instructions (i) that the persons listed on such
certificates and any persons added from time to time by supplemental
certificates of the Secretary or any two Authorized Officers in Classes 1,2,3,5
and 6 hereof, remain so authorized until you have received notice from us of
the termination of the authority of any such individuals, and (ii) that any
supplemental instructions or amendments to this Agreement, signed by any two
Authorized Officers in Classes 1 to 6 inclusive are duly authorized and valid.
We will give you signature lists for all individuals authorized to sign
written instructions to transfer funds from the Custody Account and to sign
written instructions to sell, assign, transfer, deliver, purchase or receive
financial assets for the Custody Account (the "Authorized Representatives").
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We may give you original written instructions signed in accordance
with the foregoing provisions. You may also rely and act upon original written
instructions which bear or purport to bear the facsimile signatures of any of
the Authorized Representatives or Authorized Officers regardless of by whom or
by what means the actual or purported facsimile signatures thereon may have been
affixed thereto if such facsimile signatures resemble the facsimile specimens
from time to time furnished to you by any of such Authorized Officers as set
forth above.
In addition, you may rely and act upon written instructions received
by you by facsimile transmission which you believe in good faith to have been
given by Authorized Representatives; or electronic instructions transmitted
electronically through your Geopac data entry system or any similar or successor
electronic instruction system acceptable to you which are transmitted with
proper testing or authentication pursuant to terms and conditions which you may
specify from time to time in writing to us. You shall incur no liability to us
or otherwise as a result of any act or omission by you in accordance with
instructions on which you are authorized to rely pursuant to the provisions of
this paragraph. You shall incur no liability for refraining from acting upon
any instructions which for any reason you, in good faith, are unable to verify
to your own satisfaction.
The term "instruction" whether written or electronic, includes,
without limitation, instructions to sell, assign, transfer, deliver, purchase or
receive for the Custody Account, any and all financial assets or to transfer
funds held in the Custody Account. You may deliver financial assets upon
our instructions as set forth herein only against payment therefore and your
delivery orders shall note that the financial assets are being delivered for our
account, except that you may only accept an original written instruction if the
instruction is to deliver financial assets free of any payment.
Funds may be transferred from the Custody Account only upon our
instructions specifying the amount of payment and the payee: (i) against receipt
of financial assets for our account, by you or your agent in good deliverable
form or registered in our name, or to your account or the account of your agent
at a Depository, such transactions being effected upon written instructions
being signed by two Authorized Representatives or by electronic instruction;
(ii) to a properly authorized account of ours or our affiliate under repetitive
wire instructions we will provide you, signed by any two Authorized
Representatives; (iii) to a properly authorized account of ours or our affiliate
with you or your affiliates signed by any two Authorized Representatives, or
(iv) to any properly authorized account of ours at a brokerage firm which is
specified in an original written instruction signed by any two Authorized
Representatives. A "properly authorized account" as used herein means an
account which has been designated to you in writing, signed by any two
Authorized Officers from Classes 1 through 6 hereof. With respect to
instructions received hereunder to transfer funds from the Custody Account
("payment
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orders"), we agree to implement any callback or other authentication method or
procedure or security device required by you at any time or from time to time.
In executing or paying a payment order you may rely upon the identifying number
(e.g., Fedwire routing number or account number), or any party as instructed in
the payment order. We assume full responsibility for any inconsistency between
the name and identifying number of any party in payment orders issued to you in
our name by Authorized Representatives.
Unless otherwise expressly provided, all authorizations and
instructions shall continue in full force and effect until canceled or
superseded by subsequent authorizations or instructions received by your
safekeeping account administrator with reasonable opportunity to act thereon.
Your authorization to rely and act upon instructions pursuant to this paragraph
shall be in addition to, and shall not limit, any other authorization which we
may give you regarding our accounts with you.
We agree that, if you require test arrangements, authentication
methods or procedures or other security devices to be used with respect to
instructions which we may give hereunder, thereafter instructions given by us
shall be given and processed in accordance with terms and conditions for the use
of such arrangements, methods or procedures or devices as you may put into
effect and modify from time to time. We shall safeguard any identification
codes or other security devices which you make available to us and agree that we
shall be responsible for any loss, liability or damage incurred by you or by us
as a result of your acting in accordance with instructions from any unauthorized
person using the proper security device.
If you are instructed by us to purchase or sell financial assets for
the Custody Account you may enter purchase and sale orders and confirmations,
and perform any other acts incidental or necessary to the performance thereof
with brokers or dealers or similar agents selected by you, including any broker
or dealer or similar agent affiliated with you, for our account and risk in
accordance with accepted industry practices in the relevant market.
Except as may be provided otherwise in this Agreement, you are
authorized to execute our instructions and take other actions pursuant to this
Agreement in accordance with your customary processing practices for customers
similar to us, and in accordance with such practices, you may retain agents,
including The Chase Manhattan Bank and any other subsidiaries or affiliates of
yours, to perform any of your duties and responsibilities under this Agreement.
In acting upon instructions to deliver financial assets against
payment, you and your agents are authorized, in accordance with customary
securities processing practices, to deliver such financial assets to the
purchaser thereof or dealer therefor (including to an agent for any such
purchaser or dealer) against a receipt, with the
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expectation of collecting payment from the purchaser, dealer or agent to whom
the financial assets were so delivered before the close of business on the same
day.
REGISTRATION. Unless you receive contrary instructions from us, you
and your agents are authorized to keep financial assets in certificated or
uncertificated form registered in your name or your agents' names or in the
names of your or your agents' nominee or nominees or, where financial assets are
eligible for deposit in a Depository (hereinafter defined), you may, and are
hereby authorized to, use any such Depository and permit the registration of
registered financial assets in the name of its nominee or nominees. We agree to
hold you and the nominees harmless from any liability resting solely on their
status as holders of record. We shall accept the return or delivery of
financial assets of the same class and denomination as those deposited with you
by us or otherwise received by you for the Custody Account, and you need not
retain the particular certificates so deposited or received. "Depository" shall
mean a federal reserve bank and any "clearing corporation" as defined in the
Uniform Commercial Code.
If any of our financial assets registered in your or your agent's name
or the name of your or your agent's nominee or credited to your or your agent's
securities account with a Depository and registered in the name of the
Depository's nominee are called for partial redemption by the issuer of such
financial assets, you are authorized to allot the called portion to the
respective entitlement holders of the financial assets in any manner deemed to
be fair and equitable by you in your sole discretion.
STATEMENTS. You shall notify us daily of each financial asset
transaction effected for the Custody Account and of income on and redemptions of
financial assets credited to the Custody Account, as well as furnish us listing
of such financial assets, at such times upon which you and we mutually agree.
Periodic statements shall be rendered to us as we may reasonably require, but
not less frequently than monthly. You shall at all times maintain proper books
and records that shall identify us as the entitlement holder of such financial
assets. Your books and records relating to the Custody Account shall be
available for inspection upon reasonable notice to you during your regular
business hours by duly authorized officers, employees, or agents of ours, or by
legally authorized regulatory officials who are then in the process of reviewing
our financial affairs upon proof to you of such official status. You agree to
use reasonable efforts to maintain records sufficient to enable us to determine
and verify information concerning the financial assets held for our account.
You agree to furnish, upon our request or the request of the Insurance
Department of any state in which we are licensed to do business, a verification
certificate in sufficient detail to permit adequate identification of the
financial assets belonging to us as entitlement holder and held by you under the
terms of this Agreement. Such certificate shall be signed by a responsible
official of yours and furnished to the requester, with a copy to us if the
requester is the Insurance Department.
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Unless we shall send to you a written exception or objection to any
statement of account within 60 days of our receipt of such statement from you,
we shall be deemed to have approved such statement. In such event, or where we
have otherwise approved such statement, you shall, to the extent permitted by
law, be released, relieved and discharged with respect to all matters set forth
in such statement or reasonably implied therefrom as though it had been settled
by the decree of a court of competent jurisdiction in an action where we and all
persons having or claiming an interest in the Custody Account were parties.
CORPORATE ACTIONS. You shall send us such proxies (signed in blank,
if issued in your name or the name of your nominee or a nominee of a Depository)
and communications with respect to financial assets in the Custody Account as
call for voting or relate to legal proceedings within a reasonable time after
sufficient copies are received by you for forwarding to customers. In addition,
you shall follow coupon payments, redemptions, exchanges or similar matters with
respect to financial assets in the Custody Account and advise us of rights
issued, tender offers or any other discretionary rights with respect to such
financial assets, in each case, of which your or your agents' central corporate
actions department receives notice from the issuer or from the Depository in
which such financial assets are maintained or notice published in publications
and reported in reporting services routinely used by you or your agents for this
purpose.
CUSTODIAN RESPONSIBILITY. You shall be obligated to indemnify us for
any loss of financial assets received for, and credited to, the Custody Account
resulting from (i) the negligence or willful misconduct of you or your officers,
employees or agents (including any Depository retained by you for such financial
assets) or (ii) the burglary, robbery, holdup, theft or mysterious
disappearance, including loss by damage or destruction. In the event of a loss
of financial assets for which you are required to indemnify us pursuant to the
immediately preceding sentence, at your option, you shall promptly replace such
financial assets (by among other means posting appropriate security or bond with
the issuer(s) of such financial assets and obtaining their reissue) or the value
thereof (determined based upon the market value of the financial assets which
are the subject of such loss as of the date of the discovery of such loss) and
the value of any loss of rights or privileges resulting from the loss of such
financial assets. The foregoing indemnity shall be your exclusive liability to
us for your loss of financial assets held for the Custody Account. In respect of
all your other duties and obligations pursuant to the terms of this Agreement,
you shall be liable to us only to the extent of our general damages suffered or
incurred as a result of any act or omission of you or your officers, employees
or agents which constitutes negligence or willful misconduct. General damage
shall mean only those damages as directly and necessarily result from such act
or omission without reference to any special conditions or circumstances of ours
or of any transaction, whether or not you have been advised of any such special
conditions or circumstances. Anything in this Agreement to the contrary
notwithstanding, in no event shall you be liable to us under this Agreement for
special,
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indirect or consequential loss or damage of any kind whatsoever, whether or not
you are advised as to the possibility of such loss or damage and regardless of
the form of action any such loss or damage may be claimed.
All collection and receipt of funds or financial assets and all
payment and delivery of funds or financial assets under this Agreement shall be
made by you as our agent, at our risk with respect to our actions or omissions
and those of persons other than you, including, without limitation, the risk
associated with the securities processing practice of delivering financial
assets against a receipt and the risk that the counterparty in any transaction
into which we enter will not transfer funds or financial assets or otherwise
perform in accordance with our expectation of its obligations thereunder
(including, without limitation, where, as a result of such nonperformance, a
Depository reverses, or requires repayment of, any credit given in connection
with the transfer of financial assets).
In no event shall you or your agents be responsible or liable for any
loss due to forces beyond your control, including, but not limited to, acts of
God, flood, fire, nuclear fusion, fission or radiation, war (declared or
undeclared), terrorism, insurrection, revolution, riot, strikes or work
stoppages for any reason, embargo, closure or disruption of any market,
government action, including any laws, ordinances, regulations or the like which
restrict or prohibit the providing of the services contemplated by this
Agreement, inability to obtain equipment or communications facilities or the
error in transmission of information caused by any machines or systems or the
failure of equipment or interruption of communications facilities, and other
causes whether or not of the same class or kind as specifically named above. In
the event that you are unable substantially to perform for any of the reasons
described in the immediately preceding sentence, you shall so notify us as soon
as reasonably practicable.
We understand you maintain for your own benefit Bankers' Blanket Bond
insurance coverage with respect to the financial assets you hold in custody.
Furthermore, such insurance is maintained with standard coverage and subject to
deductibles as is customary for insurance typically maintained by banks which
act as custodians. You will continue to maintain such insurance so long as we
maintain our Custody Account with you. You will provide us with such
information as we may reasonably request, and which you customarily provide to
your custody clients, regarding such insurance coverage you maintain. Should we
learn that you have terminated or changed your insurance coverage with respect
to custodied securities you hold, our sole remedy, if we elect to exercise it,
shall be to terminate this Agreement as set forth herein.
You and your agents shall be responsible for only those duties
expressly stated in this Agreement or expressly contained in instructions to
perform the services described herein given to you pursuant to the provisions of
this Agreement and accepted
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by you and, without limiting the foregoing, you and your agents shall have no
duty or responsibility:
(a) to supervise the investment of, or make recommendations with
respect to the purchase, retention or sale of, financial assets relating to
the Custody Account, or to maintain any insurance on financial assets in
the Custody Account for our benefit;
(b) with regard to any financial assets in the Custody Account as to
which a default in the payment of principal or interest has occurred, to
give notice of default, make demand for payment or take any other action
with respect to such default;
(c) except as otherwise specifically provided in this section under
the heading "Custodian Responsibility", for any act or omission, or for the
solvency or insolvency, or notice to us of the solvency or insolvency, of
any broker or agent which is selected by you with reasonable care or by us
or any other person to effect any transaction for the Custody Account or to
perform any service under this Agreement;
(d) to evaluate, or report to us regarding, the financial condition
of any person, firm or corporation to which you deliver financial assets or
funds pursuant to this Agreement;
(e) for any loss occasioned by delay in the actual receipt of notice
by you of any payment, redemption or other transaction in respect to which
you and your agents are authorized to take some action pursuant to this
Agreement; or
(f) for any errors or omissions made by any securities pricing
services used by you or your agent to value financial assets credited to
the Custody Account as part of any service subscribed to by us from you.
SETTLEMENTS. We agree with you that all credits of financial assets
and proceeds by you to the Custody Account on the settlement or payable date
shall be provisional when made an you shall be entitled to reverse any such
credits subject to actual receipt or collection of immediately available funds.
We shall have sufficient immediately available funds each day in the
Custody Account to pay for the settlement of all financial assets delivered
against payment to you and your agents and credited to the Custody Account.
Should we fail to have sufficient immediately available funds in the Custody
Account to settle these deliveries of financial assets pursuant to the preceding
sentence (a "Deficit"), you, in your sole discretion, may
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elect (i) to reject the settlement of any or all of the financial assets
delivered to you that day to the Custody Account, (ii) to settle the deliveries
on our behalf and debit the Custody Account (A) for the amount of such Deficit
and (B) for the amount of the funding or other cost or expense incurred or
sustained by you for our failure to have sufficient immediately available funds
in the Custody Account by the applicable settlement deadline for you, or (iii)
to reverse the posting of the financial assets credited to the Custody Account.
You and your agents shall have the right upon 48 hours notice to us,
to reverse any erroneous entries or provisional credit entries for cash to the
Custody Account retroactively to the date upon which the correct entry, or no
entry, should have been made.
The foregoing rights are in addition to and not in limitation of any
other rights or remedies available to you under this Agreement or otherwise. Any
advances made by you or your agents to us in connection with the purchase, sale,
redemption, transfer or other designation of financial assets or in connection
with disbursements of funds to any party, which create or result in an overdraft
in the Custody Account shall be deemed a loan to us, payable on demand, and
subject to the terms of a netting agreement we may have with you, bear interest
on the amount of the loan each day that the loan remains unpaid at The Chase
Manhattan Bank's prime rate in effect as announced by it from time to time, plus
one percent (unless another rate has been separately agreed upon between you and
us) plus the cost of any required reserves. If you or your agents determine
that daylight overdraft charges from the Federal Reserve Bank incurred by you or
your agents, and relating to transactions effected for custody accounts
maintained by you or them, will be charged to custody account clients, you agree
to give us 30 days prior notice, and we agree to bear the portion of any such
overdraft charges allocated to transactions effected for the Custody Account.
No prior action or course of dealing on the part of you or your agents
with respect to the settlement of financial assets transactions on our behalf
shall be used by or give rise to any claim or action by us against you or your
agents for your or their refusal to pay or settle for a securities transaction
we have not timely funded as required herein.
RESPONSIBLE AS PRINCIPAL. We agree that we shall be responsible to
you as a principal for all of our obligations to you arising under or in
connection with this Agreement, notwithstanding that we may be acting on behalf
of other persons, and we warrant our authority to deposit in the Custody Account
any financial assets and funds which you or your agents receive therefor and to
give instructions relative thereto. We further agree that you shall not be
subject to, nor shall your rights and obligations with respect to this Agreement
and the Custody Account be affected by, any agreement between us and any such
person.
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CREDITING AND DEBITING PROCEDURES. With respect to all transactions
for the Custody Account, including, without limitation, dividend and interest
payments and sales and redemptions of securities, availability of funds credited
to the Custody Account shall be based on the type of funds used in the trade
settlement or payment, including, but not limited to, same day availability for
federal or same day funds and next business day availability for clearing house
or next day funds. Furthermore, with respect to all purchases and sales of
financial assets for the Custody Account, the proceeds from the sale of
financial assets shall be credited to the Custody Account on the date proceeds
are received by you and the cost of financial assets purchased shall be debited
to the Custody Account on the date securities are received by you, unless we
request your contractual settlement service for the Custody Account in which
case the following provisions shall apply with respect to the delivery and
receipt of financial assets for the Custody Account for those financial assets
and transactions as to which you customarily offer this service.
(a) When we instruct you to deliver or receive financial assets, on
the contractual settlement date you shall credit the Custody Account with the
expected proceeds of the transaction and debit the Custody Account for the
financial assets which we have instructed you to deliver, in the case of
deliveries, and debit the Custody Account for the cost of the financial assets
which we have instructed you to receive and credit the Custody Account with such
financial assets, in the case of receives. These credits and debits are
provisional accounting entries which you shall reverse on our written
instructions and which you may reverse, even in the absence of instructions from
us, if the transaction with respect to which they were made fails to settle
within a reasonable period, determined by you in your discretion, after the
contractual settlement date, except that if you deliver financial assets which
are returned by the recipient thereof, you may reverse such credits and debits
at any time. You have no obligation to use this crediting and debiting
procedure with respect to a delivery of financial assets if we do not have
actually in our account sufficient financial assets to make the delivery.
(b) As with other transactions processed by you, your responsibility
with respect to transactions for which you use this crediting and debiting
procedure shall be governed by the provisions of this Custody Agreement,
including the section headed "Custodian Responsibility". We agree that your
using this procedure is not an assurance by you that the transaction will
actually settle on the contractual settlement date and does not impose any
additional responsibility on you with respect to the transaction. Without
limiting your right to reverse credits and debits described above, the account
statements which you furnish to us shall reflect transactions as to which you
use this procedure as if they had actually settled on the contractual
settlement date, unless prior to the date to which the statement relates, you
have reversed such credits and debits.
(c) We agree that you may terminate this contractual settlement
service to us at any time and for any reason.
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With respect to financial assets or transactions as to which you do not
customarily offer this service, you shall (i) in the case of deliveries of
financial assets, credit the proceeds of the transaction to the Custody Account
on the date they are received by you and debit the financial assets from the
Custody Account on the date they are delivered by you, and (ii) in the case of
financial assets received, debit the Custody Account for the cost of such
financial assets and credit the Custody Account with such financial assets on
the date the financial assets are received by you.
TAXES. Unless we have certified to you our U.S. tax identification
number as provided for below, we shall deliver promptly to you with respect to
each Custody Account established under this Agreement, two duly completed and
executed copies of the proper United States Internal Revenue Service forms: (i)
Form W-9, if we are a U.S. citizen or resident person; and (ii) if we are a
nonresident person, Form 1001, Form 4224, Form W-8 or Form 8709 (as
applicable), certifying our status as a nonresident person, and that we are
entitled to receive United States source payments under or in connection with
this Agreement without deduction as withholding or at a reduced rate of
withholding for United States federal income taxes. We agree to provide duly
executed and completed updates of such form(s) (or successor applicable
forms), on or before the date that such form(s) expire or become obsolete or
after the occurrence of an event requiring a change in the most recent form
previously delivered by us to you. We further agree to pay, indemnify, and
hold you and your agents harmless from and against any and all liabilities,
penalties, interest or additions to tax with respect to, or resulting from,
any delay in, or failure by, you or them (i) to pay, withhold or report any
Federal, state or foreign taxes imposed on, or in respect of, the property held
in the Custody Account, or this Agreement, or (ii) to report interest, dividend
or other income paid or credited to the Custody Account, whether such failure
or delay by you to pay, withhold or report tax or income is a result of (x) our
failure to comply with the terms of this sub-paragraph, or (y) your own acts or
omissions; provided, however, we shall not be liable to you for any penalty or
additions to tax due as a result of your or your agents failure to pay or
withhold tax or to report to us interest, dividend or other income paid or
credited to the Custody Account solely as a result of your or their negligent
acts or omissions.
We hereby certify that 00-0000000 is our correct tax identification
number.
OTHER ACCOUNTS. From time to time we may instruct you to open and
maintain more than one Custody Account for us. Unless we and you otherwise
expressly agree, such accounts will be governed by the provisions of this
Agreement.
FEES, INDEMNIFICATION. We agree to pay you compensation for your
services pursuant to this Agreement at the fees of which you shall notify us
from time to time. Notwithstanding the preceding sentence, you agree that all
fees related to the
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Custody Account shall remain fixed for a period of three years, beginning
November 1, 1996. All such compensation shall be paid by us within 30 days from
our receipt of your invoice. We also agree to hold you and your officers,
employees and agents harmless from, and to indemnify and reimburse you and them
for, all claims, liabilities, losses, damages and expenses (including
out-of-pocket and incidental expenses and legal fees) incurred by you or them
in connection with or relating to the Custody Account or your acting under this
Agreement, provided that you or they, as the case may be, have not acted with
negligence or willful misconduct with respect to the events resulting in such
claims, liabilities, losses, damages or expenses.
You shall provide us with an itemized invoice for your services at the end
of each month until such time as you and we agree to a quarterly invoice. You
will mail such invoices until further notice from us to the following address:
Asset Management
XXX Xxxxx 00-Xxxxx
Xxxxxxx, Xxxxxxxx 00000
SET-OFF. You may, without prior notice to us, setoff any sums held for us
or standing to the credit of any of our cash accounts with you or your
affiliate, The Chase Manhattan Bank, in or towards the satisfaction of any
amounts advanced by you to us or on our behalf in respect of financial assets
transferred from or credited to our Custody Accounts under this Agreement,
notwithstanding that the accounts may be maintained at different branches of
yours and your affiliate and may not be expressed in the same currency.
TERMINATION. Either party may terminate this Agreement at any time upon
thirty days written notice. Our obligations pursuant to the paragraphs under
the headings "Registration", "Settlements", "Liens", "Fees, Indemnification"
and "Taxes" shall survive the termination of this Agreement.
NOTICES. Notices with respect to termination, any disputes hereunder,
specification of Authorized Officers and terms and conditions for instructions
required hereunder shall be in writing, and shall be deemed to have been duly
given if delivered personally, by courier service or by mail, postage prepaid,
to the following addresses (or to such other address as either party hereto
may from time to time designate by notice duly given in accordance with this
paragraph):
To us at: Secretary
Continental Assurance Company Separate Account B
CNA Plaza - 23 South
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Xxxxxxx, Xxxxxxxx 00000
OTHER COMMUNICATIONS. You should send us other communications to the
following addresses:
Monthly Statements:
Investment Accounting
XXX Xxxxx - 00 Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Periodic Asset Lists:
Securities Handling
CNA Plaza - 23 South
Xxxxxxx, Xxxxxxxx 00000
Annual Reports, Proxies and Other Materials:
Asset Management/Investments
CNA Plaza - 23 South
Xxxxxxx, Xxxxxxxx 00000
To you, to the attention of the individual designated by you as the
safekeeping account administrator for our account, at:
The Chase Manhattan Trust Company of Illinois
c/o The Chase Manhattan Bank
Worldwide Insurance Securities Services
3 Chase XxxxxXxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
with a copy with respect to any termination or disputes, only to:
The Chase Manhattan Trust Company of Illinois
Ten Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
GOVERNING LAW, SUCCESSORS AND ASSIGNS, HEADINGS. This Agreement shall be
governed by and construed in accordance with the laws of the State of Illinois,
with regard to laws as to conflicts of laws, and shall be binding on our and
your
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respective successors and assigns. The headings of the paragraphs hereof are
included for convenience of reference only and do not form a part of this
Agreement.
PRIOR PROPOSALS. This Agreement (including any Riders relating to
additional services in respect of the Custody Account we may request of you)
shall contain the complete agreement of the parties hereto with respect to the
Custody Account (except as may be expressly provided to the contrary herein)
and supersedes and replaces any previously made proposals, representations,
warranties or agreements with respect thereto by either or both of the parties
hereto. This Agreement shall become effective upon execution hereof by us and
acceptance by you.
SEPARABILITY. Any provisions of this Agreement which may be determined by
competent authority to be prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
RESERVATION OF RIGHT. You shall have the right not to accept for deposit
to the Custody Account any financial assets which are in a form or condition
which you, in your sole discretion, determine not to be suitable for the
services you provide under this Agreement.
Your rights and remedies under this Agreement are in addition to, and not
in limitation of, any other rights and remedied available to you under
applicable law.
ADDITIONAL DUTIES. If we shall ask you to perform duties or
responsibilities not specifically set forth in this Agreement and you choose to
perform such additional duties or responsibilities, you shall use reasonable
care and you shall be entitled to all the protective provisions (including but
not limited to limitation of liability and indemnification) set forth herein.
COUNTERPARTS. This Agreement may be executed in several counterparts each
of which shall be deemed to be an original and together shall constitute one
and the same agreement.
MISCELLANEOUS. You will send to us all reports you receive from a
Depository or the Federal Reserve book-entry system concerning their respective
systems of internal accounting control. Upon our request, you will send the
annual report (SAS 70 Report) prepared by your external auditors or your
systems of internal accounting control of custodied financial assets.
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You are not authorized to disclose, and will not disclose our name, address
or securities position to a requester of such information, except where you or
your subcustodian, The Chase Manhattan Bank, (a) are required to do so by our
regulator or a regulator of yours, or by a subpoena or other order from a court
of competent jurisdiction, or (b) you receive explicit approval from any one of
the individuals identified in the clauses 1 to 6 in the instructions section of
this Agreement.
This Agreement shall be effective as of November 26, 1996.
CONTINENTAL ASSURANCE COMPANY
SEPARATE ACCOUNT (B)
By: /s/ Xxx X. Xxxxxx
-------------------------------
Xxx X. Xxxxxx
Title: Chairman
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------
Xxxxx Xxxxxxxxx
Title: Secretary
Accepted by:
THE CHASE MANHATTAN TRUST COMPANY OF ILLINOIS
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Title: Vice President
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