AMENDED & RESTATED CUSTODIAL SERVICES AGREEMENT
October 19, 1981
The Chase Manhattan Bank, N.A.
1211 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
You are hereby authorized and requested to open one or more
custodial accounts in the name of College Retirement Equities Fund ("CREF") or
in your name or the name of your agent banks, on behalf of CREF. This Agreement
defines the nature and scope of the services to be provided and your
responsibility in connection with these custodial accounts.
It is hereby agreed that all securities or other property now
or hereinafter held by you hereunder are held for the custodial account of CREF
and are to be maintained and disposed of by you only for us in accordance with
the terms and conditions set forth in this Agreement. As used herein, unless
specifically instructed in writing to the contrary, the phrase "held by you
hereunder" shall also include (1) your authority to deposit all or any part of
such property in a centralized depository, and (2) the deposit of securities or
other property in a custody account maintained for you on CREF's behalf with any
bank or trust company, or other entity.
For purposes of this Agreement, a depository shall mean the
system for the central handling of securities of any particular class or series
of any issuer deposited therein which may be treated as part of a fungible bulk
and may be transferred by bookkeeping entry without physical delivery of such
securities.
1. SAFEKEEPING
You will be solely responsible for the safekeeping, handling,
servicing and disposition of all securities or other property of CREF held by
you hereunder including, without
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limitation, any and all of CREF's funds (including cash and monies whether in
United States or foreign denominated currencies, hereinafter termed the "Funds")
deposited by CREF with you in accounts in CREF's name, your name or that of your
nominees or agents located at your head office, offices of your branch or agent
banks, or the offices of any other entities located within or without the
continental United States.
With the exception of liability for "losses from causes beyond
your control" (defined herein) and expressly subject to the provisions of the
next succeeding paragraph, you agree to be liable and to indemnify and hold CREF
harmless for any and all liability of or loss or damage to CREF with respect to
any such securities, Funds and other property, whether or not such liability,
loss or damage results from any negligence, error, misfeasance, or misconduct on
the part of you, any of your employees, your agents, branches, affiliates,
correspondents, depositories or other entities selected by you to have custody
or responsibility, on CREF's behalf, for any of CREF's property in accordance
with this Agreement. The term "losses from causes beyond your control" shall be
defined for purposes of this Section 1 to include only losses or damages
resulting from war, confiscation or seizure of foreign owned assets,
restrictions on the transmittal or transfer of currencies or other assets owned
by non-nationals out of the respective country as a result of express foreign
governmental regulations with respect thereto, insurrection, military, naval or
usurped power, hurricane, cyclone, tornado, earthquake, volcanic eruption or
similar disturbance of nature, or nuclear fission, fusion or radioactivity
(except from industrial uses of nuclear energy).
Notwithstanding the foregoing, you further agree that you will
at all times (i) give the securities or other property held by you hereunder the
same care you give your own property of a similar nature and (ii), with respect
to the maintenance of the indicia of ownership of such securities or other
property, comply with and remain subject to Section 404(b) (or any successor
section or sections thereto) of the Employee Retirement Income Security Act of
1974, and all applicable provisions of the regulations thereunder, as may be
amended from time to time.
It is understood and agreed that you are not under any duty to
supervise the investment of, or to advise or make any recommendation to CREF
with respect to the purchase or sale of any securities.
In connection with your responsibilities hereunder, you have
advised us that you currently have in force, for your own protection, Bankers
Blanket Bond Insurance and you will continue to maintain such insurance in
substantially the same form and amount. We understand that such insurance would
be available to cover certain losses with respect to securities held by you
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hereunder. You agree to give us written notice of any reduction in the amount,
or material change in the form of such insurance.
Promptly upon receiving a request therefor from CREF (and in
any event no later than two (2) days in the case of Funds, and ten (10) days in
the case of all other properties, after such request has been received by you),
you agree to return, refund and repay in full, all Funds or other property of
CREF held by you, your agents or any other entity pursuant to the terms of this
Agreement, free of liens, security interests, rights, charges or claims of any
kind, including, without limitation, any rights of offset, setoff or discharge
relating to any such properties.
2. SERVICING
A. WITHDRAWAL & DEPOSIT OF FUNDS. All Funds held by you
hereunder shall be subject to withdrawal and deposit by you from time to time on
behalf of CREF for the purpose of consummating the purchases of sales, as the
case may be, of designated securities, solely upon your receipt of express
directions from duly authorized officers of CREF in accordance with the
provisions of Section 6 hereof. Such directions shall include, but shall not be
limited to: (1) the execution and delivery of foreign currency contracts on
behalf of CREF, (2) the debiting or crediting of currency accounts (United
States or foreign) of CREF held by you, your agents or any other entities
pursuant to this Agreement as of settlement date of such other date as specified
in such instructions, and (3) the prompt return to CREF of any or all Funds or
property held by you hereunder.
B. ACQUISITIONS AND DISPOSITIONS OF SECURITIES. From time to
time CREF will instruct you to receive or deliver securities on its behalf
through properly authorized instructions as set forth in Section 6 herein. In
accordance with this Agreement, notwithstanding such instructions that relate to
settlement date entries, you agree that you will:
(a) receive such securities against payment or exchange, as
directed in any authorized instruction and debit Funds held by
you on our behalf only against satisfactory delivery of
securities;
(b) assign, sell, tender, exchange or otherwise dispose of
such securities, only upon receipt of payment or exchange, or
your guarantee of payment or exchange, as directed by a
properly authorized instruction, and credit our checking
account accordingly. Actual delivery of securities is to be
made by you on the contractual settlement date only upon
express instructions to such effect, PROVIDED that:
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(1) the securities are on deposit in our account,
(2) our delivery instructions are received by you in timely
fashion, and
(3) payment therefor or securities in exchange have been
received by you or your agents;
(c) promptly furnish us with advices or notices of any
receives or delivers of securities, and identify by book entry
or otherwise as a quantity of securities which constitute or
are part of a fungible bulk of securities either registered in
the name of your nominee or your agent's nominee as shown on
your account on the books of a depository;
(d) withdraw and deliver securities free of payment as
directed in any such written instructions as set forth in
Section 6 herein, provided, however, that under no
circumstances are any securities to be withdrawn and delivered
by you to any individual; such delivery is to be made only to
another custodial account exclusively in the name of College
Retirement Equities Fund; and
(e) exchange securities where the exchange is purely
ministerial.
C. INCOME AND PRINCIPAL. Income on securities and Funds held
by you hereunder will be credited automatically to our checking account upon
notification that such income has become due and payable. Principal received in
connection with securities which mature or are redeemed shall be credited to our
checking account on the date such principal is received.
Unless instructed otherwise, collections of income in foreign
currency are to be converted into United States dollars and in effecting such
conversion you may use such methods or agencies as you may see fit including
your own facilities at prevailing rates. All risk and expense incident to such
collection and conversion is for the account of the undersigned, and you shall
have no responsibility for fluctuations in exchange rates affecting such
conversion.
You shall also acquire and hold hereunder all stock dividends,
rights and similar securities issued with respect to any securities held by you
hereunder. With respect to any dividend reinvestment plan in which CREF
participates, and as to which you have been so notified, you agree to acquire
and hold hereunder the appropriate number of shares issuable under such plan in
lieu of the cash dividend. With respect to stock dividends, you are hereby
authorized to sell any fractional interest and to credit our checking account
with the proceeds thereof.
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D. REGISTRATION. Securities which are eligible for deposit in
centralized depositories may be maintained in your account with them or your
agent's nominee. Subject to the aforesaid provision, you will register all
securities (except such as are in bearer form) in the name of your nominee or
your agent's nominee, unless alternate registration instructions are furnished
by us. You will retain and have available at all times for inspection by
regulatory authorities evidence that your nominee is registered as required by
the laws and regulations of the United States and the State of New York, as
appropriate.
3. VOTING AND OTHER ACTION
No person may vote (other than pursuant to written
instruction) any securities held by you hereunder. You will promptly transmit to
us, or direct to be transmitted to us, all notices, proxies and proxy soliciting
materials with respect to securities held by you hereunder, which proxies will
be executed by the registered holder thereof if registered otherwise than in the
name of CREF, but without indicating the manner which such proxies are to be
voted.
You will promptly transmit to us all written information
(including, without limitation, pendency of calls and maturities of securities
and expirations of rights in connection therewith) received by you from the
issuers of securities held by you hereunder. With respect to tender or exchange
offers, you will promptly transmit to us all written information received by you
from issuers of the securities whose tender or exchange is sought and from the
party (or his agents) making the tender or exchange offer.
4. RECORDS, AFFIDAVITS AND REPORTS
With respect to the securities and other property held by you
hereunder, you agree:
A. To maintain records sufficient to verify information we are
required to report in Schedule D of the Annual Statement Blank of the Insurance
Department of the State of New York as amended from time to time, which records
will consist of a list of such securities showing a complete description of each
issue, including the number of shares and par value of securities so held at the
end of such month and such other information as may be required by such report
or any other report required by the Insurance Department of the State of New
York;
B. To maintain records in New York regarding transactions and
related activities described in "Servicing" Section 2 sufficient to verify the
accuracy of regular monthly reports and income received on such securities and
other property;
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C. To maintain records sufficient to verify information
relating to Funds held by you, including but not limited to (1) the purchase of
foreign currency contracts, (2) the maintenance of foreign currency accounts on
behalf of CREF in the possession and custody of you, your agent banks or other
entities located outside the United States, and (3) any reports submitted to
CREF relating to its Funds;
D. To furnish us with the appropriate affidavit(s) in the form
of Exhibit A, attached hereto or in such other form as may be submitted to you
by us from time to time which is acceptable to the Insurance Department of the
State of New York or any other state of federal governmental agency having
jurisdiction over CREF, in order for the securities and other property referred
to in such affidavit(s) to be recognized as admitted assets of CREF and in order
for CREF to comply with any other requirements of such Department or agencies;
E. To furnish us with any report obtained by you on a
depository's system of internal accounting control; and to furnish us with such
reports on your system of internal accounting control as we may reasonably
require;
F. To furnish us with all such other reports and information
as shall be reasonably requested by us relating to all property held by you on
our behalf pursuant to the terms of this Agreement; and
G. To furnish all such information, reports and affidavits
pursuant to this Section 4 within a reasonable time after request therefor.
5. ACCESS
During the course of your regular banking hours, any duly
authorized officer, employee or agent of CREF, any independent accountants
selected by CREF, and any member of the Insurance Department of the State of New
York or governmental agencies having jurisdiction over CREF, shall be entitled
to examine, on your premises, securities and records of all Funds and property
held by you, your agents, or other entities hereunder and your books and records
pertaining to your actions under this Agreement, but only upon furnishing you
with written notice of such examination signed by a duly authorized officer of
CREF. Your books and records used in connection with our indirect participation
in a depository or other entities, to the extent that they relate to depository,
custodial or other services rendered to us by you, pursuant to this Agreement,
shall at all times during your regular business hours be open to inspection by
duly authorized employees or agents of CREF or governmental agencies having
jurisdiction over CREF, but only upon furnishing you with written notice to that
effect as
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specified in the preceding sentence.
Upon receiving a request from CREF, you agree that you will
use your best efforts to enable any of the aforementioned officers, accountants,
employees, agents and members of CREF, the Insurance Department of the State of
New York or other governmental agencies having jurisdiction over CREF, to
inspect and examine securities and other property of CREF and books and records
of such property not located on your premises, which property and records are
held on CREF's behalf by your agents or other entities pursuant to this
Agreement.
6. AUTHORIZATION
A. Except as otherwise provided in this Agreement, written
instructions by CREF hereunder shall be signed by any two of its Authorized
Officers specified in a separate list for this purpose which will be furnished
to you from time to time signed by the treasurer or any assistant treasurer and
by the secretary or an assistant secretary as certified under the corporate seal
of CREF.
B. Instructions for the withdrawal of CREF owned securities
"free of payment" shall be acted upon by you only if received in writing
manually signed by any two of such Authorized Officers with the title chairman,
president, executive vice president, or treasurer, or by any one of those
officers together with any CREF officer with the title senior vice president or
vice president.
7. FEES AND EXPENSES
You will be compensated for the services rendered under this
Agreement and reimbursed for out-of-pocket expenses through arrangements
negotiated between us from time to time.
8. EXEMPTION FROM INCOME TAX
CREF is exempt from the payment of United States income tax.
Upon receipt of documentation evidencing CREF's tax exempt status, you are
hereby authorized and empowered, as CREF's agent, in its name, to sign any
certificate of ownership or other certificate which is or may be required by any
regulations of the Internal Revenue Service or other authority of the United
States.
To enable you properly to execute such certificate, we hereby
certify that CREF is a corporation duly organized and existing under the laws of
the State of New York, having its principal place of business in the City of New
York. CREF's Employer Identification No. is 000000000.
Should there by any change in the information furnished
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you herein, we will inform you promptly. If at any time CREF's status should be
such as to require the withholding of any income tax from payments received by
you, you are hereby authorized and empowered to make whatever deductions are
then required by applicable laws or regulations and are requested to notify CREF
accordingly.
9. AMENDMENTS
No amendments to this Agreement or change in any of the
instructions set forth herein shall be effective unless made in writing and
signed by either the chairman or president and by any executive vice president
or the treasurer. No such amendment or change in instructions shall be effective
until actual receipt thereof by you as provided in Section 10 herein.
10. NOTICES
Official receipts and advices of all types relating to the
securities, Funds or other property held by you hereunder will be prepared by
you, in duplicate, and forwarded to the particular divisions of CREF indicated
in a separate listing which the treasurer will furnish you from time to time.
Written notices hereunder shall be hand-delivered or mailed
first class, addressed (a) if to you, at your address set forth at the beginning
of this Agreement or (b) if to CREF at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Treasurer. Written notice of (1) termination of this
Agreement, (2) termination of your participation in DTC or any other depository,
(3) changes in your designation of any of your agents, branches or other
entities having custody of any of CREF's property under this Agreement, or (4)
changes in your insurance coverage, shall be sent by certified mail; provided,
however, that any such notice pursuant hereto shall not constitute approval by
CREF of any such termination, change or designation nor shall such notice
relieve you of your responsibilities hereunder.
Any notice so addressed, hand delivered and mailed shall be
deemed to be given on whichever of the following dates shall first occur: (i)
the date of actual receipt thereof, (ii) the fifth day next following the date
mailed, or (iii) if the substance thereof is communicated by hand delivery or
certified mail, the date so delivered or mailed.
11. TERMINATION
Either party may terminate this Agreement by giving the other
party sixty (60) days written notice of termination, provided, however, that you
shall not terminate this Agreement without your prior delivery to us of all
Funds, securities and other property of CREF held by you on our behalf pursuant
to this
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Agreement.
12. EFFECT OF HEADINGS
The Section headings herein are for convenience only and shall
not affect the construction hereof.
13. GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the law of the State of New York.
This Agreement shall become effective upon receipt by CREF of
a copy of this letter signed by you indicating your acceptance thereof.
Very truly yours,
COLLEGE RETIREMENT EQUITIES FUND
BY:________________________________
Xxxxxxx X. Xxxxxxx
Treasurer
BY:________________________________
Xxxxx X. XxxXxxxxx
President
Accepted and Agreed:
THE CHASE MANHATTAN BANK, N.A.
BY:___________________________________
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EXHIBIT A
CUSTODIAN AFFIDAVIT
STATE OF )
)SS.:
COUNTY OF )
_______________________________________, being duly sworn deposes and says
that he is _________________________________ of The Chase Manhattan Bank, N.A.,
a banking corporation organized under and pursuant to the laws of the
_________________________________________________ with principal place of
business at ________________________________________________________,
, (hereinafter called the "Bank");
That his duties involve supervision of activities of the Bank
as custodian and records relating thereto;
That the Bank is custodian for certain securities of College
Retirement Equities Fund having a place of business at 000 Xxxxx Xxxxxx, Xxx
Xxxx, XX 00000 (hereinafter called the "Company") pursuant to the Amended and
Restated Custodial Services Agreement dated as of October 19, 1981 (hereinafter
the "Agreement") between the Bank and the Company;
That the schedule attached hereto is a true and complete
statement of securities which were in the custody of the Bank for the account of
the Company as of the close of business on _______________________; that unless
otherwise indicated on the schedule, the next maturing and all subsequent
coupons were then either attached to coupon bonds or in the process of
collection; and that, unless otherwise shown on the schedule, all such
securities were in bearer form or in registered form in the name of the Company
or its nominee, or a nominee of the Bank or its agent's nominee, or were in the
process of being registered in such form;
That the Bank as custodian has the responsibility for the
safekeeping of such securities as that responsibility is specifically set forth
in the Agreement between the Bank as custodian and the Company; and
That, to the best of his knowledge and belief, unless
otherwise shown on the schedule, said securities were the property of said
Company and were free of all liens, claims, or encumbrances whatsoever.
Subscribed and sworn to
before me this day
of _______________________________________ (L.S.)
AMENDMENT TO CUSTODIAL SERVICES AGREEMENT
DATED OCTOBER 19, 1981
AS AMENDED, BETWEEN
COLLEGE RETIREMENT EQUITIES FUND
&
THE CHASE MANHATTAN BANK, N.A.
AMENDMENT dated February 14, 1992, to the Amended & Restated Custodial
Services Agreement, dated October 19, 1981, as amended (the "Custodial Services
Agreement"), between COLLEGE RETIREMENT EQUITIES FUND ("CREF") and THE CHASE
MANHATTAN BANK, N.A. ("Chase").
WHEREAS, CREF and Chase have entered into the Custodial Services
Agreement which sets forth the terms and conditions under which Chase holds
securities or other property of CREF;
WHEREAS, CREF is establishing a new account (the "Global Equities
Account") and desires to arrange for the custody of certain of the assets of the
Global Equities Account with Chase, and Chase desires to hold such assets for
CREF;
NOW, THEREFORE, CREF and Chase hereby agree that all custodial accounts
opened with Chase by CREF on behalf of the Global Equities Account shall be
subject to, and governed in all rsepects by, the Custodial Services Agreement.
IN WITNESS WHEREOF, the parties hereto have set their hand as of the
date first mentioned above.
COLLEGE RETIREMENT EQUITIES FUND THE CHASE MANHATTAN BANK, N.A.
By:__________________________________ By:__________________________________
Xxxx X. Xxxxx Name: Xxxxxxxx Xxxxx
President Title: Vice President
By:__________________________________
Xxxxxxx X. Xxxxxxx
Vice President and Treasurer
AMENDMENT TO CUSTODIAL SERVICES AGREEMENT
DATED OCTOBER 19, 1981
AS AMENDED, BETWEEN
COLLEGE RETIREMENT EQUITIES FUND
&
THE CHASE MANHATTAN BANK, N.A.
AMENDMENT dated March 15, 1994, to the Amended & Restated Custodial
Services Agreement, dated October 19, 1981, as amended (the "Custodial Services
Agreement"), between COLLEGE RETIREMENT EQUITIES FUND ("CREF") and THE CHASE
MANHATTAN BANK, N.A. ("Chase").
WHEREAS, CREF and Chase have entered into the Custodial Services
Agreement which sets forth the terms and conditions under which Chase holds
securities or other property of CREF;
WHEREAS, CREF is establishing a new account (the "Growth Account") and
desires to arrange for the custody of certain of the assets of the Growth
Account with Chase, and Chase desires to hold such assets for CREF;
NOW, THEREFORE, CREF and Chase hereby agree that all custodial accounts
opened with Chase by CREF on behalf of the Growth Account shall be subject to,
and governed in all respects by, the Custodial Services Agreement.
IN WITNESS WHEREOF, the parties hereto set their hand as of the date
first mentioned above.
COLLEGE RETIREMENT EQUITIES FUND THE CHASE MANHATTAN BANK, N.A.
By:__________________________________ By:__________________________________
Xxxx X. Xxxxx Name: Xxxxxxxx Xxxxx
Chairman Title: Vice President
By:__________________________________
Xxxxxxx X. Xxxxxxx
Vice President and Treasurer
October 19, 1981
The Chase Manhattan Bank, N.A.
1211 Avenue of the Americas
New York, N.Y. 10036
Re: College Retirement Equities Fund
Amended and Restated Custodial
SERVICES AGREEMENT
--------------------------------
Dear Sirs:
We refer to the Amended and Restated Custodial Services
Agreement dated as of October 19, 1981 (the "Agreement") between The Chase
Manhattan Bank, N.A. ("Chase") and College Retirement Equities Fund ("CREF").
The parties hereby agree that if in connection with a sale of
securities, Chase is liable for and must indemnify CREF for loss or damage under
Section 1 of the Agreement, Chase shall credit CREF with the cash proceeds as if
the sale and delivery of such securities were completed as scheduled pursuant to
authorized instructions. Chase shall not, however, be liable for any profits
(real or potential) that would have been the result of an investment by CREF
with the cash proceeds of the sale of such securities in another securities
investment.
Very truly yours,
COLLEGE RETIREMENT EQUITIES FUND
By:_____________________________________
Xxxxxxx X. Xxxxxxx
Treasurer
By:_____________________________________
Xxxxx X. XxxXxxxxx
President
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Accepted and Agreed:
THE CHASE MANHATTAN BANK, N.A.
By:____________________________________
