CUSTODIAN ACCOUNT AGREEMENT
THIS CUSTODIAN ACCOUNT AGREEMENT, dated December 15, 1992, is entered into
by and between FARM BUREAU LIFE INSURANCE COMPANY, an insurance company
organized under the laws of Iowa, and its affiliated companies ("Company"), and
BANKERS TRUST COMPANY, a New York banking corporation ("Custodian");
WITNESSETH:
In consideration of the mutual covenants herein contained and other
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. DEFINITIONS
Whenever used in this Agreement, or in any appendices, schedules or
exhibits hereto or amendments hereof, the following words and phrases, unless
the context otherwise requires, shall have the following meanings:
(a) "Account Securities" means the Securities, other property and cash held
by Custodian in the Custodian Account, and shall include all income generated by
or the proceeds of any sale of such Securities.
(b) "Authorized Person" means any Person or Persons jointly or severally
authorized from time to time, in a writing in substantially the form of Exhibit
A attached hereto and made a part hereof, delivered to Custodian, to act on
behalf of Investment Adviser or Company with respect to any action required or
permitted to be taken by the Investment Adviser or Company under this Agreement.
Such writing shall clearly indicate the scope of authority of each Authorized
Person.
(c) "Custodian Account" means the one or more custodianship, safekeeping
and cash accounts established and maintained by Custodian or any subcustodian
for Company pursuant to this Agreement, as listed in Exhibit B attached hereto
and made a part hereof.
(d) "Depository" means any centralized securities depository system,
domestic or foreign, whether presently or hereafter organized, in which
Custodian participates, and shall include (i) the Depository Trust Company, (ii)
the Participant's Trust Company, or (iii) any other centralized securities
depository system selected by Custodian, but subject to the approval of Company
and any required approval by regulatory authorities applicable to Custodian in
the conduct of its business as Custodian.
(e) The term "hold" shall include Custodian's authority to deposit part or
all of the Account Securities with a Depository.
(f) "Instructions" means a communication received by Custodian from one or
more
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Authorized Persons directing action or delivering information pursuant thereto.
Instructions may be oral or written and may be delivered (i) by telephone, (ii)
in hard copy, or (iii) by computer, electronic instruction system or
telecommunications terminals, which shall include but not be limited to, a
telex, a TWXS, a facsimile transmission, a bank wire or Custodian's proprietary
POL*ARIS Service; PROVIDED, HOWEVER, THAT the Parties hereto or Custodian and
Investment Adviser, as the case may be, shall have agreed to the form, the means
of transmission and the means of identification of such Instructions; FURTHER
PROVIDED THAT Instructions initially given orally shall be confirmed within the
thirty (30) minute period immediately following the initial receipt of the
Instructions by Custodian in a manner consistent with clauses (ii) or (iii)
above. Instructions shall conform to operating procedures communicated from time
to time by Custodian to Company.
(g) "Paragraph" means a paragraph of this Agreement.
(h) "Person" means a natural person, trust, estate, corporation,
association, partnership, joint venture, employee organization, committee,
board, participant, beneficiary, trustee, partner, or venturer, including but
not limited to Company and Investment Advisers, as the context may require.
(i) "Security" or "Securities" includes bonds, debentures, notes, stocks,
evidences of indebtedness and other securities and property.
(j) "INVESTMENT ADVISER" means an entity duly appointed by Company as an
investment manager as further described in paragraph 7.
The plural of any term shall have a meaning corresponding to the singular
thereof as so defined and any neuter pronoun used herein shall include the
masculine or feminine as the context may require.
Any references in this Agreement to any provision of any statute, code or
regulation shall be deemed to incorporate any amended, substitute or successor
provisions, whenever adopted.
2. APPOINTMENT OF CUSTODIAN
(a) APPOINTMENT. Subject to the provisions hereof Company hereby employs,
appoints and authorizes Custodian to act as custodian of all the Securities and
monies at the time owned by or in the possession of Company during the period of
this Agreement which have been delivered to, or Custodian has otherwise
expressly been given authority to hold in the Custodian Account.
(b) ESTABLISHMENT OF CUSTODIAN ACCOUNT. Custodian hereby agrees to
establish the Custodian Account in the name of Company, or such other name or
names as Company and Custodian may agree upon from time to time, and to hold in
the Custodian Account
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all Securities or other property and cash deposited with, delivered to or
received by Custodian for deposit in the Custodian Account in accordance with
Instructions; PROVIDED that Custodian shall have the right to refuse to accept
any Securities or other property that are not in proper form for deposit, but
Custodian may refuse to accept any Security or other property only after it
discloses to Company the inadequacy or deficiency in the Security or other
property and it grants Company a commercially reasonable time to correct such
inadequacy or deficiency. Custodian shall have no responsibility or liability
for or on account of Securities or other assets not delivered to Custodian or
not accepted by Custodian as hereinabove provided.
(c) CUSTODIAN'S PERSONNEL. The individual personnel of Custodian duly
authorized to have access to Account Securities, to receive Instructions and to
act thereon are listed in the certification annexed hereto as Exhibit C and, as
amended from time to time, made a part hereof. Custodian shall advise Company of
any change in the individuals so authorized by written notice to Company.
(d) Scope of Duties. Custodian's duties and responsibilities shall be
limited to those expressly set forth in this Agreement, and in any appendices,
schedules or exhibits hereto.
3. FORM OF CUSTODY AND SAFEKEEPING
(a) FORM OF CUSTODY. Custodian shall be responsible for safekeeping Account
Securities. Custodian is authorized to (i) retain physical possession of Account
Securities, and/or (ii) deposit Account Securities with a Depository or
Sub-Custodian (hereinafter defined) selected by Custodian pursuant to paragraph
8(b) and which is approved by the Company-, provided, however that if the
Company shall deliver to Custodian foreign securities to be treated as Account
Securities, then Custodian is authorized to (i) retain physical possession of
such foreign securities, and/or ii) deposit such foreign securities with a
Depository or Sub-Custodian selected by Custodian pursuant to paragraph 8(b).
For purposes of this section a foreign security means a security that is issued
by an entity that is not domiciled in the United States or a United States
territory.
(b) PHYSICAL CUSTODY. Custodian shall ensure that Account Securities are at
all times properly identified as belonging solely to Company. In this regard,
Custodian shall physically segregate Account Securities from any property owned
by Custodian. Custodian shall not be required to physically segregate Account
Securities (other than bearer securities which shall be so segregated) from
other securities or property held by Custodian for third parties, but Custodian
shall maintain adequate records showing the true ownership of Account
Securities.
(c) DEPOSITORY CUSTODY. If Custodian deposits Account Securities with a
Depository, Custodian shall maintain adequate records showing the location and
true ownership of such property.
(d) REGISTRATION IN NOMINEE NAME. Custodian is authorized to reregister
securities
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received in registered form in the name of its nominee, or the nominee of a
Depository, unless alternate registration Instructions are furnished. In
consideration of Custodian's registration of Account Securities in the name of
its nominee, Company agrees to pay on demand to Custodian or its nominee the
amount of any loss or liability for stockholders' assessments, or otherwise,
claimed or asserted against Custodian, such nominee or Depository's nominee by
reason of such registration. Securities may also be held in the Custodian
Account in coupon bearer form, where, in the judgment of Custodian, it is not
practicable or possible to register such securities.
4. LIABILITY FOR SAFEKEEPING
(a) LIMITATION OF LIABILITY. Custodian's safekeeping responsibility under
paragraph 3 shall be limited to exercising the care and diligence usually
accorded by Custodian to the safekeeping of its own property; PROVIDED, HOWEVER,
Custodian's responsibility under paragraph 3 is limited to losses occasioned by
the negligence, willful misconduct or bad faith of its employees or by robbery,
burglary, theft or destruction while the securities are in Custodian's physical
possession. With respect to deliveries of securities to a third party, Custodian
shall be deemed no more than an "intermediary" as defined in Section 8-306(3) of
the New York Uniform Commercial Code. Custodian shall not be under any
obligation to any Person to insure Custodian or the Custodian Account against
loss. Provided that Custodian shall maintain an off-premises, back-up
information storage site for its custodial books and records which i) shall
include books and records documenting the contents of Company's Custodian
Account; ii) shall enable Custodian to continue to do business in a COMMERCIALLY
reasonable manner; and iii) shall enable Custodian, through the normal course of
business, to physically replace all of the Account Securities controlled by
Custodian on behalf of Company. Custodian shall not be liable under any
circumstances for loss or damage due to war, insurrection, terrorist act, civil
disobedience, hurricane, cyclone, tornado, earthquake, volcanic eruption, other
similar natural disaster, nuclear fusion or fission or radioactivity. Custodian
shall not be liable for loss or damage due to equipment failure, except such as
is due to its own negligence, willful misconduct, or bad faith.
(b) LIABILITY FOR LOSS. In the event of loss or damage to Account
Securities for which Custodian is liable under the foregoing provisions of this
paragraph 4, Custodian shall replace such Account Securities with securities of
the same class and issue, together with all rights and privileges pertaining
thereto; PROVIDED THAT, if the Account Securities so lost are subject to a
contract of sale and Custodian is unable to deliver the Account Securities or
replacements therefor for settlement on the date specified in Instructions,
Custodian shall be liable to Company for the contract price of the Account
Securities so sold plus simple interest thereon at the prime rate as reported in
the Wall Street Journal computed from the specified settlement date to the date
of payment to Company.
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5. TRANSACTIONS.
(a) INSTRUCTIONS. Company may from time to time give Custodian, or appoint
an Investment Adviser to give Custodian, Instructions concerning purchases and
sales and other transactions with respect to Account Securities and Custodian
shall effect such transactions subject to the provisions and undertakings of
this paragraph 5. No person shall have access to Account Securities or the right
to order or effect transactions in Account Securities except as set forth in
this Agreement or in Instructions.
(i) AUTHORIZATION TO ACT ON INSTRUCTIONS. Custodian is authorized to
accept, act upon and rely upon Instructions that Custodian believes in good
faith to have been given by an Authorized Person, or that are transmitted
with proper testing or authentication in accordance with procedures
specified by Custodian, or that are transmitted electronically through
Custodian's POL*ARIS communications system or any similar electronic
instruction system acceptable to Custodian.
(ii) RELIANCE ON INSTRUCTIONS. Custodian shall incur no liability to
Company or otherwise and shall be fully protected in acting in compliance
with and reliance on Instructions that Custodian reasonably believes in
good faith to be genuine and to be signed, sent or made by an Authorized
Person, including oral Instructions which are promptly confirmed in
accordance with Section 1(f) hereof. If Instructions are required to be
given before the Custodian may act and such Instructions have not been
given, Custodian shall contact Company to inform it of the absence of
required Instructions and shall allow Company a commercially reasonable
time to provide Custodian with Instructions.
(iii) ERRORS IN INSTRUCTIONS. Custodian shall not be responsible for any
errors or inaccuracies contained in Instructions, which are properly
confirmed, except where such errors or inaccuracies are due to its own
negligence, willful misconduct or bad faith.
(b) DELIVERIES AND RECEIPTS. - In accordance with Instructions, Custodian
shall deliver specified Account Securities (including cash in the Custodian
Account) to the Person designated in such Instructions and shall receive in
exchange therefor the Securities and/or cash and/or other property specified
therein. Account Securities may be delivered "free" if the Instructions so
specify and the Instructions are authorized by two, separate, Authorized
Persons. If cash is to be delivered by Custodian, the Custodian Account shall be
charged by Custodian on the actual settlement date. Receipts of cash by
Custodian shall be effected in accordance with paragraph 5(c). Custodian shall
exercise customary care and diligence in examining and verifying the
certificates or other indicia of ownership of the securities or other property
received before accepting or paying for same. If Instructions direct Custodian
to deliver certificates or other physical evidence of ownership of Account
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Securities to any Person other than a Depository, Custodian's sole
responsibility shall be to exercise customary care and diligence in effecting
the delivery as instructed and collecting payment therefor. Notwithstanding the
foregoing, if the delivery and/or receipt is effected through the facilities of
a Depository, Custodian's responsibilities shall be limited to using customary
care and diligence in verifying proper consummation of the transaction by the
Depository. Upon completion of a delivery, Custodian shall be discharged
completely of any liability or responsibility from claims with respect to the
safekeeping and custody of Account Securities which may occur at a time
subsequent to the period in which Custodian had control over the Account
Securities. Nothing herein shall relieve the Custodian of responsibility for any
act or omission to act of Custodian which occurred prior to the completion of
such a delivery.
(c) DELIVERY AGAINST PAYMENT. In accordance with Instructions, Custodian
Will deliver or cause to be delivered the Account Securities thus designated as
sold for the Custodian Account of Company to the broker or other person
specified in the Instructions relating to such sale, such delivery to be made
only upon receipt of payment therefor in such form as shall be satisfactory to
Custodian and Company, with the understanding that Custodian may deliver or
cause to be delivered Account Securities for payment in accordance with the
reasonable customs prevailing among dealers in securities.
(d) TIMELY INSTRUCTIONS. Company, or its Investment Adviser, as the case
may be, shall be responsible for ensuring that Custodian receives timely,
correct and complete Instructions to enable Custodian to effect settlement of
any purchase of Securities or sale of Account Securities on the contract
settlement date. If Custodian does not receive such Instructions within a
reasonable time prior to the contract settlement date and Custodian notifies
Company of the absence of such Instructions, Custodian shall have no liability
of any kind to any Person for failing to effect settlement on the contract
settlement date.
(e) LIMIT OF RESPONSIBILITY. Custodian, in its capacity as such, shall have
no responsibility to manage or recommend investments of Account Securities or to
initiate or effect any purchase, sale, or other investment transaction in the
absence of Instructions from Company or the Investment Adviser. Custodian shall
hold cash in the Custodian Account, subject to receipt of such instructions,
without liability for interest thereon; provided, however, that should any cash
remain in the Custodian Account said cash shall be swept, daily, into an
investment vehicle chosen by Company, subject to the terms and conditions
applicable to such investment vehicle. Custodian shall in no event be
responsible or liable for:
(i) the validity of the issue of any Securities purchased by Company, the
legality of the purchase thereof, or the propriety of the amount paid
therefor;
(ii) the legality of the sale of any Securities by Company, or the
propriety of the amount for which the same are sold;
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(iii) the legality or propriety of any borrowing or loan by Company; or
(iv) any money, whether or not represented by any check, draft or other
instrument for the payment of money, received by it on behalf of Company
until Custodian actually receives and collects such money directly by the
final crediting of the Custodian Account or the Account representing
Company's interest in the Depository.
(f) CORPORATE ACTIONS. In no event shall Custodian be responsible to
ascertain or to take any action concerning, any maturities, puts, calls,
conversions, exchanges, reorganizations, voting of proxies, offers, tenders or
similar matters relating to Account Securities, whether physically held by
Custodian or on deposit with a Depository, other than to deliver to Company and,
if directed by Company, to its Investment Adviser, notices and information
relating to any such corporate action received by Custodian from any issuers,
offerors, or otherwise. Custodian's sole responsibility in this regard shall be
to deliver promptly to Company or its Investment Advisor, as the case may be,
such notices proxies, offers tenders or similar matters and properly signed
proxies after Custodian receives them, and Custodian shall not otherwise act
with respect to any such notice unless and until Custodian has received
appropriate Instructions from Company or the Investment Adviser, as the case may
be. Company agrees and will instruct its Investment Adviser that any
Instructions to Custodian with respect to any such corporate actions must be
delivered to Custodian within sufficient time for Custodian to act thereon if
any action by Custodian is required. As used herein, "sufficient time" shall
mean at any time up to the last permissible hour on the date for action
specified by Custodian in Custodian's written notice hereunder and Custodian
shall have no liability to any person for Custodian's failure to act upon any
such Instructions for the Custodian Account received by Custodian at any time
after such hour and date.
(g) ALLOCATION OF PARTIAL REDEMPTION. Should any Account Securities held in
a Depository be called for a partial redemption by the issuer of such
securities, Custodian is authorized to accept allocation as determined pursuant
to the program therefor then in effect at such Depository or, in the absence of
any such program, Custodian's sole discretion to allot the called portion to the
respective holders in any manner deemed to be fair and equitable in its
judgment.
(h) FOREIGN SECURITIES. With respect to Account Securities issued by
foreign entities or other Account Securities for which adequate corporate
information is not readily available, Custodian's responsibility is expressly
limited to safekeeping. With respect to such Account Securities, Custodian
assumes no responsibility for following such Account Securities or their issuers
for coupon payments, redemptions, exchanges or similar matters affecting such
Account Securities. Collections of monies in foreign currency, to the extent
possible, will be converted into U.S. dollars at customary rates in accordance
with Custodian's normal procedures. All risks and expenses incident to such
foreign collections and conversions are assumed by the Custodian Account, and
Custodian shall have no
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responsibility for fluctuations in exchange rates affecting such collections or
conversions.
(i) PROCEEDS. Unless Company is informed otherwise in writing by Custodian,
the proceeds of sales, redemptions, collections, and other receipts, and
dividend and interest income will be credited, subject to collection, by
Custodian to the Custodian Account promptly upon receipt and in no event later
than the availability schedule attached hereto, marked Exhibit D and by this
reference incorporated herein.
(j) Exchanges. Custodian is authorized, without Instructions, to exchange
temporary for definitive certificates and old certificates for new or
overstamped certificates evidencing a change therein.
(k) DEPOSITORY DELIVERIES. In complying with Instructions for delivery of
eligible transactions, Custodian will make deliveries through (i) the Federal
Reserve System, pursuant to Subpart 0 of the Treasury Department Circular #300
(31 Code of Federal Regulations Part 306), and operating circulares of the
Federal Reserve Bank of New York, or (ii) the facilities of any other Depository
pursuant to Section 8-320 of the New York Uniform Commercial Code and the Rules
and Procedures of such Depository.
(l) AVAILABLE FUNDS. Custodian is not obligated to effect any transaction
or make any payment in connection therewith unless there are sufficient
available funds on deposit in the Custodian Account or funds have otherwise been
made available to Custodian therefor to its satisfaction. Should Custodian not
effect a transaction or make a payment it shall immediately notify Company of
such fact so that Company may make appropriate alternate arrangements to
effectuate the transaction or make the payment. The amount by which payments
made by Custodian with respect to property in, or to be received for, the
Custodian Account, or with respect to other transactions pursuant to this
Agreement, exceed available funds and result in an account overdraft shall be
deemed a loan from Custodian to Company, payable on demand and bearing interest
at the then current rate customarily charged by Custodian on similar loans. All
such loans shall be based on Custodian's sole determination to make the
underlying advance in each case.
(m) MANDATORY EXCHANGE. Anything in paragraph 5(f) to the contrary
notwithstanding, Custodian will, without Instructions, surrender and exchange
Account Securities for other Securities in connection with any maturity,
reorganization, recapitalization, or similar transaction in which the owner of
the Account Securities is not given an option; provided, however, Custodian
shall be responsible to effect any such exchange only upon receiving actual
notice of the event permitting or requiring such exchange. For purposes of this
subparagraph, actual notice shall mean notice that is received by Custodian from
the issuer of the Security, the agent of the issuer of the Security, a
nationally recognized subscription service, the Company, or from any other
source which would enable Custodian to act in a commercially reasonable manner.
To facilitate any such exchange, Custodian is authorized to surrender against
payment maturing Obligations and Obligations called for redemption; provided,
however, that Custodian
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deliver to Company notice of such exchange five (5) business days prior to the
actual exchange taking place.
(n) RECEIPT OF PAYMENTS. Subject to the provisions of this Agreement, and
unless and until it receives Instructions to the contrary, Custodian is
authorized to:
(i) present for payment all coupons and other income items held in the
Custodian Account;
(ii) receive payments of interest and principal, dividends, warrants,
and other things of value in connection with Account Securities and
hold such payments in the Custodian Account, with notice thereof to
Company;
(iii) sign for Company all declarations, affidavits, certificates or other
documents that may be required to collect or receive payments or
distributions with respect to Account Securities and disclose, without
further consent of Company, Company's identity to issuers of Account
Securities, or the agents of such issuers, who may request such disclosure.
Recapitalization and stock distributions will be credited upon receipt to the
Custodian Account.
(o) LENDING OF ACCOUNT SECURITIES. Custodian shall have the power and
authority to lend Account Securities only in accordance with the terms of a
separate securities lending agreement, if any, entered into between Custodian
and Company.
6. REPORTS, BOOKS AND RECORDS
(a) RECORDS. On behalf of the Company, Custodian shall keep all original
books and records concerning the Account Securities held in the Custodian
Account and the security transactions directed by Company or its Investment
Advisor. The books and records pertaining to Company that are in the possession
of Custodian shall be the property of Company. Upon the reasonable request of
Company, copies of any such books and records shall be provided by Custodian to
Company or Company's authorized representative.
(b) REPORTS AND STATEMENTS. Books and records prepared and maintained by
Custodian pursuant to this Agreement shall promptly post each transaction to the
appropriate Custodian Account, as specified in Instructions. Custodian shall
make available to Company, by POL*ARIS or in the manner otherwise agreed upon,
transaction reports and a SUMMARY of the transfers to or from the Custodian
Account during said business day. Custodian shall make available to Company, by
POL*ARIS or in the manner otherwise agreed upon, a statement of transactions and
holdings in the Custodian Account on a monthly basis or at such other intervals
as Custodian and Company shall mutually agree.
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Said monthly reports shall be delivered to Company prior to the fifth (5th)
business day of each calendar month.
(c) ADDITIONAL BOOKS AND RECORDS. In addition to its internal record
requirements, Custodian shall create and maintain such books and records and
provide such reports with respect to the Custodian Account as Custodian and
Company shall agree upon from time to time.
(d) INSPECTION. The books and records of Custodian pertaining to the
Custodian Account shall be open to inspection and audit at reasonable times by
duly authorized officers, employees and auditors employed by Company. The costs
incurred by Custodian in connection with routine periodic inspections and audits
shall be borne by Custodian. Any such costs incurred in connection with
extraordinary inspections and audits shall be charged to and paid by Company.
(e) OPINION OF COMPANY'S INDEPENDENT ACCOUNTANT. Custodian shall take all
reasonable actions, as Company may from time to time request, to enable the
Company to obtain from year to year favorable opinions from Company's
independent accountants with respect to Custodian's activities hereunder.
(f) REPORTS BY CUSTODIAN'S INDEPENDENT PUBLIC ACCOUNTANTS. Custodian shall
provide Company no less frequently than once per year with reports by
independent public accountants on Custodian's system of internal accounting
control relating to the services provided by Custodian under this Agreement.
Such reports shall state that such system is sufficient to meet the objective of
providing management with reasonable, but not absolute, assurance that assets
for which custodian has responsibility are safeguarded against loss from
unauthorized use or disposition, and that transactions are executed in
accordance with appropriate authorizations and in conformity with the governing
instruments and are recorded properly to permit the preparation of the required
financial reports.
(g) OTHER REPORTS. Custodian shall provide Company with any report received
by Custodian on the system of internal accounting control of any Depository and
with any such reports on its own systems of internal or other accounting control
as Company may reasonably request from time to time.
(h) POL*ARIS. Company has the option to elect to participate in Custodian's
POL*ARIS Service, an electronic communications service that provides, on a daily
basis, the ability to view on-line or to print out hard copy of an transactions
involving the delivery in and out of Account Securities on a free or payment
basis, payments of principal and interest or dividends, pending transactions and
fails, and schedules of Custodian Account holdings.
(i) SECURITY OF TERMINAL. In the event that Company subscribes to the
POL*ARIS Service, Company shall be fully responsible for the security of
its
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Connecting terminal(s), access thereto and the proper and authorized
use thereof, and Company's initiation and application of continuing
effective safeguards. In this connection, except for any instance
involving Custodian's own negligence, willful misconduct or bad faith,
and in addition to any other undertakings by Company in this
Agreement, Company agrees to defend and indemnify Custodian and to
hold Custodian harmless from and against any and all suits, actions,
proceedings at law or in equity, claims (groundless or otherwise),
liabilities, losses, damages, payments, settlements, penalties, fines,
costs (including fees and disbursements of counsel selected by
Custodian) and every other expense of every nature asserted against or
incurred by Custodian as a result of any improper or unauthorized use
of such terminal(s) whether on the premises of Company, an Investment
Advisor, or the agent of either; but not including Custodian or any
agent thereof.
(ii) PRICING SERVICES. To the extent that the POL*ARIS Service
provided hereunder shall include market values of the Custodian Account
holdings, Custodian may, at its discretion, obtain such information from
outside sources that Custodian reasonably deems to be reliable. Custodian
does not verify, represent or warrant either the accuracy or the
completeness of any such information transmitted through the POL*ARIS
Service.
7. DIVESTMENT ADVISERS AND INVESTMENTS
(a) APPOINTMENT OF INVESTMENT ADVISERS. Company may appoint one or more
Investment Advisers to manage the assets held in the Custodian Account. The
terms and conditions of appointment and authority of any Investment Adviser
shall be the sole responsibility of Company. Company shall promptly notify
Custodian by means of Instructions of the appointment and removal of an
Investment Adviser, the portion of the Custodian Accounts that are subject to
the investment control of such Investment Adviser and all other facts pertinent
to such Investment Adviser's authority to give Instructions, including a
designation of the Authorized Persons of such Investment Adviser.
(b) INVESTMENT REVIEW. Custodian shall be under no duty or obligation to
review any investment or reinvestment made or received upon the Instructions of
Company or any Investment Adviser. Without limiting the generality of the
foregoing, with respect to each transaction, the Authorized Person giving the
Instructions shall have the entire responsibility for assuring that the
transaction does not violate the prohibitions of any applicable state or federal
law, applicable Investment Adviser agreement, any restrictions or guidelines
applicable to the Investment Adviser in an Investment Adviser agreement, or
court order or judgment affecting the administration of the Custodian Account or
adversely affect the tax treatment of the Custodian Account.
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8. AGENTS, DEPOSITORIES AND SUB-CUSTODIANS
(a) AGENTS. Custodian may at any time or from time to time, appoint at its
own expense, (and may at any time remove) any other bank, trust company or
responsible commercial agent as its agent to carry out such of the provisions of
this Agreement as Custodian may from time to time direct, PROVIDED THAT the
appointment of any such agent shall not relieve Custodian of any of its
responsibilities and liabilities under this Agreement.
(b) SUB-CUSTODIANS AND DEPOSITORIES. Custodian may appoint at its own
expense and risk one or more banking institutions or Depositories, domestic or
foreign, to act as Sub-Custodian or as Depository of Account Securities,
PROVIDED THAT Company shall have informed Custodian by means of Instructions
that such entity has been approved by an requisite action as a Sub-Custodian or
Depository for Account Securities and Custodian shall have received no
subsequent Instructions rescinding such approval, and FURTHER PROVIDED that the
appointment of any Sub-Custodian or Depository shall not relieve Custodian of
any of its responsibilities or liabilities under this Agreement.
9. LEGAL PROCEEDINGS
Other than legal proceedings which are initiated in response to Custodian's
willful misconduct, negligence or bad faith, Custodian shall not be required to
initiate, appear in or defend any legal proceedings or take any other similar
action with respect to the Custodian Account or Account Securities unless
Custodian has been indemnified to its satisfaction against any loss and expense
(including attorneys' fees) likely to be suffered or incurred thereby.
Notwithstanding anything herein to the contrary, Custodian shall be required to
affirmatively assist Company in any legal proceeding or similar action with
respect to the Custodian Account Securities.
10. INDEMNIFICATION OF CUSTODIAN
(a) INDEMNIFICATION. In its capacity as Custodian, Custodian shall not be
liable for any act or failure to act of Company or Company's Investment Adviser.
Custodian shall not be liable for any error of judgment or mistake of law or,
except as expressly provided to the contrary in paragraph 4, for any loss
suffered by the Custodian Account unless resulting from willful misconduct, bad
faith or negligence on the part of Custodian in the performance of its duties or
from the disregard by Custodian of its obligations and duties under this
Agreement. Except as otherwise expressly provided to the contrary in the
preceding sentence, Custodian shall be indemnified against and held harmless
from any and all suits, actions, proceedings at law or in equity, claims
(groundless or otherwise), liabilities, losses, damages, payments, settlements,
penalties, fines, costs (including fees and disbursements of counsel selected by
Custodian and approved by Company, which approval shall not be unreasonably
withheld) and every other reasonable expense of every nature asserted against or
incurred by Custodian in any way arising from Custodian's appointment hereunder.
If amounts due Custodian pursuant to this paragraph 10 are not paid out of
12
the Custodian Account for any reason, they. shall be paid by Company. Custodian
agrees to inform Company in writing of any event which comes to its notice as a
result of which the Custodian Account or Company might become liable to
indemnify Custodian under these provisions, provided that any reasonable delay
in so doing shall not in any way affect the Custodian Account's or Company's
obligation to Custodian hereunder. Custodian's right to indemnification shall
survive the termination of this Agreement.
(b) PARTICIPATION IN LITIGATION. In the event any action or proceeding
shall be brought against Custodian, in its capacity as such, it shall notify
Company of the commencement thereof, and, subject to all provisions hereof and
to the extent that it shall wish, Company shall be entitled to participate
therein or to assume the defense thereof. After notice from Company to
Custodian of its election so to assume the defense of such action or proceeding
and to pay all fees and expenses of such counsel, Company shall not be liable to
Custodian for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by Custodian, in connection with the defense thereof
other than reasonable costs of investigation, unless either Company or Custodian
shall have been advised at any time by counsel, agreeable to both Company and
Custodian, that the assumption or continuation of such defense by Company would
be inappropriate under applicable standards of professional conduct on account
of actual or potential differing interests between Company and Custodian or
under fiduciary principles applicable to the Custodian Account. Custodian may,
at any time, waive its right to indemnification hereunder and assume its own
defense.
(c) BREACH OF REPRESENTATION OR WARRANTY. Company's liability under the
foregoing indemnification shall cover, without limitation, all loss, liability,
claims, damages and expenses resulting from a breach of any representation or
warranty delivered herein by Company.
11. REPRESENTATIONS AND WARRANTIES OF COMPANY
Company hereby represents, warrants and covenants to Custodian that:
(a) the employment of Custodian and the allocation of fees, expenses and
other charges to the Custodian Account as herein provided, is not prohibited by
law or any governing documents or contracts relating to the Custodian Account or
the maintenance of custodian accounts for Company as contemplated herein;
(b) the terms of this Agreement do not violate any obligation by which
Company is bound, whether arising by contract, operation of law or otherwise;
(c) this Agreement has been duly authorized by appropriate action and when
executed and delivered will be binding upon Company in accordance with its
terms;
13
(d) Company will deliver to Custodian such evidence of such authorization
as Custodian may reasonably require, whether by way of a certified resolution,
opinion of counsel or otherwise;
(e) Custodian, in its capacity as such, is not required to maintain any
fidelity bond insurance with respect to Account Securities pursuant to the
requirements of any law applicable to Company;
(f) Company has furnished Custodian the names and original or facsimile
signatures of all Authorized Persons currently authorized to act on behalf of
Company pursuant to this Agreement; and
(g) with respect to matters covered by this Agreement, Custodian shall be
entitled to assume any document delivered herewith remains in effect and any
Authorized Person or Investment Adviser named herein or pursuant hereto
continues to be authorized to act hereunder until Custodian is notified by means
of Instructions as to any amendment, change or substitute.
12. REPRESENTATIONS AND WARRANTIES OF CUSTODIAN
Custodian hereby represents, warrants and covenants to Company that:
(a) the terms of this Agreement do not violate any obligation by which
Custodian is bound, whether arising by contract, operation of law or otherwise;
(b) this Agreement has been duly authorized by appropriate action and when
executed and delivered will be binding upon Custodian in accordance with its
terms;
(c) Custodian will deliver to Company such evidence of such authorization
as Company may reasonably require, whether by way of a certified resolution,
opinion of counsel or otherwise;
(d) Custodian, in its capacity as such, is not required to maintain any
fidelity bond insurance with respect to Account Securities pursuant to the
requirements of any law applicable to Custodian;
(e) Custodian has furnished Company the names of all Persons currently
authorized to act on behalf of Custodian hereunder; and
(f) with respect to any matters covered by this Agreement, Company shall be
entitled to assume any document delivered herewith remains in effect and any
Person named herein or pursuant hereto continues to be authorized to act
hereunder until it is notified of any amendment, change or substitute.
14
13. FEES, EXPENSES AND OTHER CHARGES
(a) FEE SCHEDULES. For the services provided hereunder, Company shall pay
Custodian monthly in arrears a fee calculated and accrued in accordance with
Custodian's applicable fee schedule set forth in Exhibit E, attached hereto and
as amended from time to time made a part hereof. Such fee schedule does not
include reasonable out-of-pocket disbursements of Custodian for which Custodian
shall be entitled to be reimbursed by Company. Except for fees and expenses
which are the result of Custodian's negligence, willful misconduct or bad faith,
Custodian shall be entitled to reimbursement for all reasonable out-of-pocket
fees and expenses of counsel arising from the performance of Custodian's duties
hereunder, such reasonable out-of-pocket disbursements, fees and expenses shall
include but shall not be limited to the items specified in Exhibit F, attached
hereto. Exhibit F may be modified by Custodian upon not less than sixty (60)
days prior written notice to Company.
(b) PAYMENT. Custodian will invoice Company as soon as practicable after
the end of each calendar month and said invoices will be detailed in accordance
with the applicable fee schedule(s) and will include reimbursable out-of-pocket
disbursements.
14. TERM AND TERMINATION
(a) TERM. This Agreement shall become effective on the date first set forth
above.
(b) NOTICE OF TERMINATION. Company may terminate this Agreement and the
Custodian Account upon thirty (30) days written notice to the Custodian.
The Custodian may terminate this Agreement and the Custodian Account upon ninety
(90) days written notice to the Company.
(c) DELIVERY OF ACCOUNT SECURITIES AND OTHER PROPERTY. Upon termination,
Custodian shall deliver in proper form for transfer all Account Securities
specified in the notice of termination, or cause such to be delivered, to a
successor custodian designated by Company or, if a successor custodian has not
accepted an appointment by the effective date of termination of the Custodian
Account, to Company if the Board of Directors or Board of Trustees of the
Company has authorized the Company to maintain the custody of its own assets in
accordance with Rule 17f-2 under the 1940 Act, and if not, then to a custodian
appointed by a court of competent jurisdiction. Custodian shall be entitled to
be reimbursed for any reasonable expenses incurred in connection with such
delivery unless such termination is at Custodian's request. Custodian agrees to
cooperate with Company and any substitute or successor custodian appointed by
Company during a reasonable transition period.
(d) In the event a notice of termination is given by Custodian, Company
shall, on or before the specified termination date, deliver to Custodian a
resolution of the Board of Directors Company designating a successor custodian
or custodians. In the absence of such
15
designation by Company, Custodian shall deliver all of the effected Account
Securities to the designee of Company which will, upon delivery, be deemed to be
the successor custodian.
15. TAXES
(a) FILINGS. Custodian shall have no responsibility to file any tax returns
regarding the Custodian Account or the Account Securities. Custodian is
authorized and empowered to execute any certificates of ownership or other
reports, declarations or affidavits that it is or may hereafter be required to
execute and furnish under any regulation of the Internal Revenue Service, or by
or under any other authority of the United States or any jurisdiction, which are
required in connection with any property that is now or may hereafter be held in
the Custodian Account. The authority granted to Custodian in this section 15 is
conditioned upon Company's prior exhaustion of all its rights of challenge and
appeal regarding said regulations or United States authority. Company agrees to
notify Custodian immediately in writing of any material change in status that
may affect any such certificates, reports or other required documents or the
contents thereof.
(b) INDEMNIFICATION. Company agrees to indemnify the Subcustodian and any
nominee in whose name Account Securities or other property of Company is
registered against any liability Custodian or such nominee may incur by reason
of taxes assessed to Custodian or such nominee resulting directly or indirectly
from the fact that Account Securities or other property of Company are
registered in the name of Custodian or such nominee; PROVIDED, HOWEVER, said
indemnity obligation is subject to Company's prior exhaustion of all lawful or
legal challenge or appeal rights regarding any tax or related liability.
Custodian's right to indemnification as aforesaid shall survive the termination
of this Agreement.
16. ADVICE
Custodian may from time to time consult with counsel to Company or with an
Authorized Person in connection with its obligations arising hereunder and shall
be fully protected in acting upon the written advice or instructions of such
counsel or Authorized Person, as the case may be.
17. ADDRESSES
Except as provided to the contrary with respect to Instructions and until
further notice from either party, any notices delivered pursuant to this
Agreement, and all other COMMUNICATIONS shall be in writing and shall be
delivered or sent to the following addresses or such other addresses as from
time to time may be specified hereunder:
16
If to Company:
Farm Bureau Insurance Companies
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxx Xxxxxx, XX 00000
Attn: Investment Accounting
If to Custodian:
Banker's Trust
00 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attn: Xxxxx X. Xxxx
All notices and other communications shall be effective when received. The party
seeking to rely on notice having been given under this paragraph 16 shall be
responsible for ascertaining the facts thereof.
18. MISCELLANEOUS
(a) INFORMATION TO AND CONSENT OF CUSTODIAN. During the term of this
Agreement, Company shall furnish to Custodian at its office, prior to any
distribution thereof, copies of any materials prepared for distribution to any
Persons who are not parties hereto that refer in a material way to Custodian.
Company shall not distribute or permit the distribution of such materials if
Custodian reasonably objects in writing within five (5) business days (or such
other time as may be mutually agreed) after receipt thereof. Company shall
furnish or otherwise make available to Custodian such other information relating
to the business affairs of Company as Custodian at any time, or from time to
time, reasonably requests in order to discharge its obligations hereunder.
(b) SCOPE OF THE AGREEMENT. This Agreement contains the whole of the
understanding between the parties with respect to the subject matter hereof.
(c) AMENDMENT. This Agreement may be amended at any time by a written
instrument signed by an Authorized Person of Company and by a duly authorized
officer of Custodian.
(d) SEVERABILITY. If any provision of this Agreement is determined to be
invalid or unenforceable, such determination shall not affect the validity or
enforceability of any other provisions of this Agreement.
(e) NO WAIVER. No term or provision hereof shall be deemed waived and no
breach excused unless such waiver or consent shall be in writing and signed by
the party claimed to have waived or consented. No waiver of any term or
provision hereof shall be deemed
17
a continuing waiver unless it is so designated. Any consent by any party to a
breach by the other, whether express or implied, shall not constitute a consent
to or excuse for any other breach.
(f) CAPTIONS. The captions of this Agreement are included for convenience
of reference only and in no way define or delimit any of the provisions hereof
or otherwise affect their construction or effect.
(g) ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their heirs, successors, and assigns;
PROVIDED HOWEVER this Agreement shall not be assignable by Company without the
written consent of Custodian, or by Custodian without the written consent of
Company, and any attempted assignment without such written consent shall be null
and void.
(h) GOVERNING LAW. This Agreement 'shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of the day and year first above written.
FARM BUREAU LIFE INSURANCE BANKERS TRUST COMPANY
COMPANY
BY: /s/ Xxxxxxx X. Warming BY: /s/ Xxxxx X. Xxxx
--------------------------------- ---------------------------
XXXXXXX X. WARMING XXXXX X. XXXX
Its: VICE PRESIDENT - INVESTMENTS Its: VICE PRESIDENT
18
APPENDIX C:
MUTUAL FUND CUSTODY ACCOUNT -
FBL VARIABLE INSURANCE SERIES FUND
THIS MUTUAL FUND CUSTODY ACCOUNT AGREEMENT (hereinafter the "Appendix"),
dated January 12, 1993, is entered into by and between FBL VARIABLE INSURANCE
SERIES FUND, a Massachusetts Business Trust ("Company") and BANKERS TRUST
COMPANY, a New York banking corporation ("Bankers Trust").
WHEREAS, both Bankers Trust and Company desire to have the Mutual Fund
Custody Account- FBL Variable Insurance Series Fund governed by the terms and
provisions of the Custodian Account Agreement dated December 15, 1992 (the
"Agreement"), as hereby amended;
NOW, THEREFORE, in consideration of the mutual covenants contained in the
Agreement and this Appendix and other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto, intending to be
legally bound, agree as follows:
1. Section I entitled DEFINITIONS is amended as follows:
(d) "Depository" means any centralized securities depository system,
domestic or foreign, whether presently or hereafter organized, in which
Custodian participates, and shall include (i) the Depository Trust Company, (ii)
the Federal Reserve Book-Entry System, (iii) the Participant's Trust Company, or
(iv) any other centralized securities depository system selected by Custodian,
but subject to the approval of Company's Board of Directors or Trustees and any
required approval by regulatory authorities applicable to Custodian in the
conduct of its business as Custodian. The term "Depository" shall further mean
and include any other person to be named in a certificate issued by Custodian
and approved by Company's Board of Directors or Company's Board of Trustees and
authorized to act as a depository under the 1940 Act, including its successor or
successors and its nominee or nominees.
(f) "INSTRUCTIONS" means a communication received by Custodian from one or
more Authorized Persons directing action or delivering information pursuant
thereto in regard to Company's Account Securities, Securities or Portfolios.
Instructions may be oral or written and may be delivered (i) by telephone, (ii)
in hard copy, or (iii) by computer, electronic instruction system or
telecommunications terminals, which shall include but not
1
be limited to, a telex, a TWXS, a facsimile transmission, a bank wire or
Custodian's proprietary POL*ARIS Service; PROVIDED, HOWEVER, THAT the Parties
hereto or Custodian and Investment Adviser, as the case may be, shall have
agreed herein to the form, the means of transmission and the means of
identification of such Instructions; FURTHER PROVIDED that Instructions
initially given orally shall be confirmed within the thirty (30) minute period
immediately following the initial receipt of the Instructions by Custodian in a
manner consistent with clauses (ii) or (iii) above. Instructions shall conform
to operating procedures communicated from time to time by Custodian to Company.
(k) "1940 Act" refers to the Investment Company Act of 1940, and the Rules
and Regulations thereunder, all as amended from time to time.
(1) "Portfolio" means Account Securities grouped together in a separate
investment Portfolio of Company. Company shall provide Custodian with a listing
of Company's Portfolios.
2. Section 6 entitled REPORTS, BOOKS AND RECORDS is amended as follows:
(a) Records. On behalf of Company, Custodian shall keep all original books
and records concerning the Account Securities held in the Custodian Account and
the Security transactions directed by Company or its Investment Advisor. The
books and records pertaining to Company that are in the possession of Custodian
shall be the property of Company. Such books and records shall be prepared and
maintained as required by the 1940 Act and other applicable securities laws and
rules and regulations. Upon the reasonable request of Company, copies of any
such books and records shall be provided by Custodian to Company or Company's
authorized representative.
(b) REPORTS AND STATEMENTS. Books and records prepared and maintained by
Custodian pursuant to this Agreement shall reflect the prompt posting of each
transaction to the appropriate Custodian Account and Portfolio, as specified in
Instructions. Custodian shall make available to Company, by POL*ARIS or in the
manner otherwise agreed upon, transaction reports and a summary of the transfers
to or from the Custodian Account during said business day. Custodian shall make
available to Company, by POL*ARIS or in the manner otherwise agreed upon, a
statement of transactions and holdings in the Custodian Account on a monthly
basis or at such other intervals as Custodian and Company shall mutually agree.
Said monthly reports shall be delivered to Company prior to the fifth (5th)
business day of each calendar month.
(c) ADDITIONAL BOOKS AND RECORDS. In addition to its internal record
requirements, Custodian shall create and maintain such books and records and
provide such reports with respect to the Custodian Account as Custodian and
Company shall agree upon from time to time. Custodian is not the fund accountant
for Company. Custodian shall cooperate with the fund accountant and shall make
available to the fund accountant the transaction
2
reports and statements referred to in paragraph 6(b) above, but Custodian shall
not be responsible for reconciling books and records with those of the fund
accountant or for keeping books and records normally kept by the fund
accountant.
(d) INSPECTION. The books and records of Custodian pertaining to the
Custodian Account shall be open to inspection and audit at reasonable times by
duly authorized officers, employees and auditors employed by Company and by
employees and agents of the Securities and Exchange Commission. The costs
incurred by Custodian in connection with routine periodic inspections and audits
shall be borne by Custodian. Any such reasonable costs incurred in connection
with extraordinary inspections and audits shall be charged to and paid in
accordance with paragraph 13.
3. Section 8 entitled AGENTS, DEPOSITORIES AND SUB - CUSTODIANS is amended as
follows:
(a) Agents. Custodian may at any time or from time to time, appoint at its
own expense, (and may at any time remove) any other bank, trust company or
responsible commercial agent as its agent to carry out such of the provisions of
this Agreement as Custodian may from time to time direct, PROVIDED THAT such
agent agrees with custodian to comply with all relevant provisions of the 1940
Act and applicable rules and regulations thereunder; and FURTHER PROVIDED THAT
the appointment of any such agent shall not relieve Custodian of any of its
responsibilities and liabilities under this Agreement.
(b) SUB-CUSTODIANS AND DEPOSITORIES. Custodian may appoint at its own
expense and risk one or more banking institutions or Depositories, domestic or
foreign, to act as Sub-Custodian or as Depository of Account Securities,
PROVIDED THAT such entity agrees with Custodian to comply with all provisions of
the 1940 Act and applicable rules and regulations thereunder; and FURTHER
PROVIDED THAT Company shall have informed Custodian by means of Instructions
that such entity has been approved by all requisite action as a Sub-Custodian or
Depository for Account Securities and Custodian shall have received no
subsequent Instructions rescinding such approval; and FURTHER PROVIDED THAT the
appointment of any Sub-Custodian or Depository shall not relieve Custodian of
any of its responsibilities or liabilities under this Agreement.
4. Section 12 entitled REPRESENTATIONS AND WARRANTIES OF CUSTODIAN
is amended as follows:
(g) Custodian is qualified as a custodian under Section 26(a) of the 1940
Act and covenants that it will remain so qualified or upon ceasing to be so
qualified shall promptly notify Company in writing.
3
5. Section 13 entitled FEES, EXPENSES AND OTHER CHARGES is amended as follows:
(a) FEE SCHEDULES. For the services provided hereunder, Company shall pay
Custodian monthly in arrears a fee calculated and accrued in accordance with
Custodian's applicable fee schedule set forth in Exhibit E, attached hereto and
as amended from time to time made a part hereof. Such fee schedule does not
include reasonable out-of-pocket disbursements of Custodian for which Custodian
shall be entitled to be reimbursed by Company. Except for fees and expenses
which are the result of Custodian's negligence, willful misconduct or bad faith,
Custodian shall be entitled to reimbursement for all reasonable out-of-pocket
fees and expenses of counsel arising from the performance of Custodian's duties
hereunder, such disbursements, feeds and expenses shall include but shall not be
limited to the items specified in Exhibit F, attached hereto. Exhibit F may be
modified by Custodian upon not less than sixty (60) days prior written notice to
Company.
(i) Should Company designate additional Portfolios after the date of this
Appendix, the parties hereto shall mutually agree upon the fee due
Custodian for the additional responsibilities assumed by Custodian as a
result of administering such newly created Portfolios. Such mutually agreed
upon fee shall be reflected in a written fee schedule designated for that
Portfolio which shall be dated, signed by an officer of each party hereto,
and attached to this Appendix as an exhibit.
6. Section 14 entitled TERM AND TERMINATION is amended as follows:
(b) NOTICE OF TERMINATION. Company may terminate this Agreement and the
Custodian Account upon thirty (30) days written notice to the Custodian,
PROVIDED THAT Company may terminate this Agreement and the Custodian Account
upon less notice if it receives notice from Custodian that it is no longer
qualified as a Custodian under Section 26(a) of the 1940 Act. The Custodian may
terminate this Agreement and the Custodian Account upon ninety (90) days written
notice to the Company.
(d) In the event that a notice of termination is given by Company, it shall
be accompanied by a certified resolution of the Company's Board of Directors or
Trustees electing to terminate this Agreement with respect to any custodian
account and designating a successor custodian or custodians, which the Company
shall deem to be an entity qualified to so act under the 1940 Act.
4
IN WITNESS WHEREOF, the parties hereto have caused this Appendix to be
executed as of the day and year first above written.
FARM BUREAU LIFE INSURANCE BANKERS TRUST COMPANY
COMPANY
BY: /s/ Xxxxxxx X. Warming BY: /s/ Xxxxx X. Xxxx
--------------------------------- --------------------------
XXXXXXX X. WARMING XXXXX X. XXXX
ITS: VICE PRESIDENT - INVESTMENTS ITS: VICE PRESIDENT
BY: /s/Xxxxxx X. Xxxxxx BY: /s/ Xxxxx X. Xxxxx
--------------------------------- --------------------------
XXXXXX X. XXXXXX XXXXX XXXXX
ITS: INVESTMENT ADMIN. V.P. ITS: VICE PRESIDENT
5
