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EXHIBIT 3
AMERICAN FIDELITY VARIABLE ANNUITY FUND A
CORPORATE CUSTODIAL AGREEMENT
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ARTICLE I
CREATION OF CUSTODIAL RELATIONSHIP
1.01 AMERICAN FIDELITY VARIABLE ANNUITY FUND A (hereinafter referred
to as "Principal"), wishes to provide for the safekeeping of certain assets of
Principal, including certified securities and uncertified securities as defined
in paragraphs (a) and (b) of subsection (1) of 12A O.S. Section 8-102 and by
federal laws and regulations (hereinafter collectively referred to as
"Securities"), cash and short-term liquid investments, and other assets
(hereinafter referred to as the "Account"). Principal hereby appoints BANK OF
OKLAHOMA, N.A., custodian (hereinafter referred to as "Custodian") of the
Account.
ARTICLE II
AUTHORIZED PERSONS OF PRINCIPAL
2.01 Principal shall, from time to time, authorize and terminate the
authority of individuals empowered to act on behalf of Principal with respect
to the Account by appropriate resolutions of Principal's Board of Directors or
by other forms of authorization acceptable to Custodian. Principal shall
designate such individuals as "Authorized Employees" or "Authorized
Signatories" for the purposes specified herein. Principal hereby warrants that
all persons so designated shall have authority to act for Principal as further
provided in this Agreement. Attached hereto as Exhibit "A" and Exhibit "B" of
this Agreement are individuals currently designated as Authorized Employees and
Authorized Signatories, respectively.
2.02 Principal may, from time to time, authorize and terminate the
authority of advisors or sub-advisors empowered to act on behalf of Principal
with respect to buy and sell decisions from and to the Account by appropriate
resolutions of Principal's Board of Directors or by other forms of
authorization acceptable to Custodian. Principal shall designate such advisors
or subadvisors as "Authorized Advisors" for the purposes specified herein.
Principal hereby warrants that all persons so designated shall have
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authority to act for Principal in buy and sell decisions, subject to
limitations provided in Paragraph 7.03 of this Agreement. Attached hereof as
Exhibit "C" of this Agreement are entities currently designated as Authorized
Advisors.
ARTICLE III
SAFEKEEPING OF SECURITIES
3.01 Custodian shall in all instances maintain the Securities in
accordance with governing law, including, but not limited to, the Oklahoma
Insurance Code, as amended from time to time. Custodian, in its discretion,
shall maintain Securities in safe-keeping on Custodian's premises, or in a
recognized clearing corporation, or in the Federal Reserve book-entry system
subject to the following provisions:
A. Certified Securities held by the Custodian shall be held
either separate from the Securities of the Custodian and of
all of its other customers or in a fungible bulk of Securities
as part of a Filing of Securities by Issue (FOSBI)
arrangement;
B. Securities held in a fungible bulk by the Custodian and
Securities in a clearing corporation or in the Federal Reserve
book-entry system shall be separately identified on the
Custodian's official records as being owned by the Principal.
Said records shall identify which Securities are held by the
Custodian or by its agent and which Securities are in a
clearing corporation or in the Federal Reserve book-entry
system. If the Securities are in a clearing corporation or in
the Federal Reserve book-entry system, said records shall also
identify where the Securities are and, if in a clearing
corporation, the name of the clearing corporation and, if
through an agent, the name of the agent;
C. All Securities that are registered shall be registered in the
name of the Principal or in the name of a nominee of the
Principal or in the name of the Custodian or its nominee or,
if in a clearing corporation, in the name of the clearing
corporation or its nominee.
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ARTICLE IV
ACCOUNT CASH AND SHORT-TERM INVESTMENTS
4.01 Custodian shall establish for Principal separate income and
Principal cash accounts which shall be invested in such short-term investment
media (such as money market funds, Custodian's deposit accounts, master notes,
registered mutual funds and the like) as agreed to from time to time by
Principal and Custodian. In the event that cash available in such cash
accounts is insufficient to enable Custodian to execute any instruction made by
Principal under this Agreement, Custodian in its sole discretion may treat the
instruction as null and void without any liability for doing so; provided,
however, that Custodian shall promptly orally notify Principal of such
insufficiency and shall confirm such notification by writing mailed within five
(5) business days.
ARTICLE V
SAFEKEEPING OF OTHER ASSETS
5.01 Custodian shall maintain assets of the Account other than
Securities, cash and short-term investments in safekeeping on Custodian's
premises subject to such additional agreements as Principal and Custodian shall
make from time to time.
ARTICLE VI
ACCESS TO ACCOUNT BY PRINCIPAL
AND PERSONS AUTHORIZED BY PRINCIPAL
6.01 Custodian shall permit access, during Custodian's regular
business hours, to assets of the Account held on Custodian's premises and to
Custodian's official records regarding the Account, by persons authorized by
Principal as further provided herein. Access shall be granted only to persons
authorized in writing by two (2) Authorized Signatories of Principal. Access
shall be granted only to two (2) or more persons so authorized, who shall be
accompanied by an employee of Custodian during the period of access.
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ARTICLE VII
DEPOSITS AND WITHDRAWALS
7.01 WRITTEN INSTRUCTION OF PRINCIPAL. Principal may, from time to
time, instruct Custodian to effect deposits of assets to the Account and
withdrawals of assets from the Account (including transfers to third persons),
by written instructions signed by at least two (2) Authorized Signatories.
Such instructions, at the minimum, shall state (a) the date of the deposit or
withdrawal; (b) the description or amount of the assets to be deposited or
withdrawn; and (c) the identity of the person to whom the assets are to be
transferred, or from whom they are to be received, as the case may be. Such
instructions shall be presented in duplicate to the Custodian, who shall note
thereon the time of receipt and shall mail one (1) copy to Principal within
two (2) business days, to serve as a confirmation of receipt of such
instructions. Custodian shall preserve the other copy (in the original or by
microfilm) for not less than five (5) years.
7.02 ORAL INSTRUCTION OF PRINCIPAL. Principal may, from time to
time, instruct Custodian to effect a deposit of assets to the Account, or a
withdrawal of assets from the Account for transfer (including purchase, sale,
or exchange transactions) solely to or for Principal's account at a federally
insured depository institution or a recognized securities broker, upon oral
instructions of any Authorized Employee. Principal shall confirm such deposit
or withdrawal by written confirmation mailed to Custodian within two (2)
business days of the withdrawal. Custodian shall preserve a copy of such
confirmation (in the original or by microfilm) for not less than five (5)
years.
7.03 INSTRUCTIONS FROM AUTHORIZED ADVISOR. Custodian shall be
authorized to act in response to instructions given by any Authorized Advisor
as to buy/sell decisions regarding the Account, provided that, in connection
with any buy/sell transaction, Custodian shall release cash from the Account
only upon receipt of purchased securities, and shall release securities only
upon receipt of funds in payment.
7.04 NON-DISCRETIONARY DEPOSITS AND WITHDRAWALS. Custodian is
authorized, as provided further herein, to effect deposits of assets to the
Account, and withdrawals of assets from the Account (including transfers to
third persons) which are of a routine or ministerial nature not requiring the
exercise of discretion, as further described herein. Custodian shall notify
Principal of any such deposit or withdrawal by written notification or account
statement.
A. INCOME, INTEREST, DIVIDENDS, ETC. Custodian shall deposit to
the Account any assets (such as stock dividends) received as
income, interest, dividends, distributions and the like,
respecting assets held
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in the Account. Custodian shall promptly notify principal of
any such amounts due but not paid and on or before the "Ex"
date of stocks. In addition, Custodian or its agent shall
timely file all the necessary forms with the appropriate
foreign governments, or agencies thereof, in order to minimize
the taxes or withholding taxes on dividend, interest or other
income from Principal's investment in foreign issues of stock
or bonds held by Custodian or agent thereof. Custodian or its
agent shall also timely file the necessary forms with the
appropriate foreign governments, or agencies thereof in order
to obtain all dividend withholding tax rebates allowable under
the current tax treaties with the United States, or in the
absence of a tax treaty, the minimum permitted by the laws of
the respective foreign government of the issuer.
B. EXPENSES. Custodian shall charge the Account for all expenses
incurred in carrying out Principal's instructions (including,
but not limited to, brokerage commissions, wire charges,
postage, etc.) and for Custodian's fees.
C. MATURITY, CALLS, MANDATORY REDEMPTIONS AND EXCHANGES, ETC.
Custodian is authorized to surrender assets upon maturity and
in other situations where such transfer is mandatory. Should
any Securities held in any central depository or in bulk by
Custodian be called for partial redemption by the issuer,
Custodian is authorized in its sole discretion to allot (or
consent to the allotment of) the called portion to the
respective holders in any manner deemed by the Custodian to be
fair and equitable. Custodian shall deposit the proceeds of
any such transaction to the Account.
D. FRACTIONAL SHARES. Custodian is authorized to sell any
fractional shares received as a result of a stock split or
stock dividend affecting Securities. Custodian shall deposit
the proceeds of any such transaction to the Account.
7.05 CUSTODIAN'S CONFIRMATION OF DEPOSITS AND WITHDRAWALS.
Custodian shall send written confirmation to Principal of all deposits of
assets to the Account and all withdrawals of assets from the Account (including
purchase, sale or exchange transactions) within two (2) business days of each
respective deposit or withdrawal.
7.06 WITHDRAWALS REQUIRING INSURANCE COMMISSIONER APPROVAL.
Securities used to meet the deposit requirements set forth in the Oklahoma
Insurance Code (36 O.S. Section 101 et seq.) (the "Code") shall, to the extent
required by the Code, be under the
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control of the Insurance Commissioner of the State of Oklahoma or his
authorized representative (hereinafter collectively referred to as the
"Commissioner"), and shall not be withdrawn by the Principal without the
approval of the Commissioner.
ARTICLE VIII
CUSTODIAN'S DUTIES
8.01 Custodian's duties with respect to the Account are intended to
be ministerial only, and Custodian may rely upon, and shall not be liable for
the propriety, prudence, or correctness of, any instruction made by Principal
in accordance with this Agreement. Custodian further agrees that it shall have
no ownership interest in the Account or any assets or Securities or funds which
comprise the Account, or earnings received by it from any Securities or assets
held in the Account, nor does the Custodian have any right of offset or other
means of exercising any ownership interest over the Account and Securities,
except and only in its capacity as Custodian and a Bailee for the benefit of
the Principal. Custodian shall forward to Principal or Authorized Advisor if
applicable all prospectuses, proxies, official reports, notices and other
materials concerning discretionary management of assets which are received by
Custodian as holder of such assets. Custodian shall not vote proxies, act on
tender offers, or perform other discretionary acts not specifically authorized
by this Agreement without specific instructions from Principal or Authorized
Advisor. Custodian shall be entitled to request instructions from Principal
concerning any matter involving the Account, and Principal agrees to promptly
respond to any such request.
ARTICLE IX
RECORD KEEPING
9.01 Custodian agrees to cooperate with Principal in maintaining
records and supplying reports to Principal, as reasonably needed by Principal
in order to meet Principal's accounting, reporting and regulatory obligations,
including the following obligations:
A. The Custodian and its agents shall be required to send to the
Principal:
(1) On the first business day of each month a report of
all the transactions in the Account
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during the preceding month and the listing of all
assets held in the Account at the end of the
preceding month.
(2) all reports which they receive from a clearing
corporation or the Federal Reserve book-entry system
on their respective systems of internal accounting
control; and
(3) any reports prepared by outside auditors on the
Custodian's or its agents' internal accounting
control of Securities that the Principal may
reasonably request.
B. The Custodian shall maintain records sufficient to determine
and verify information relating to Securities that may be
reported in the Principal's annual statement and supporting
schedules and information required in any audit of the
financial statements of the Principal.
C. The Custodian shall provide, upon written request from any of
the Authorized Signatories of the Principal, the appropriate
affidavits, substantially in the form provided in Exhibits
"D", "E" and "F", attached hereto, and made a part hereof,
with respect to the Securities.
ARTICLE X
LIABILITY FOR SAFEKEEPING
10.01 Custodian shall be responsible only for assets actually
received by it hereunder. Custodian shall indemnify Principal for any loss of
Securities occasioned by the negligence or dishonesty of the Custodian's
officers and employees, or burglary, robbery, holdup, theft or mysterious
disappearance, including any loss by damage or destruction. Custodian shall
not be liable in any manner for loss occasioned by failure of Principal or its
officers or employees to comply with this Agreement, by negligence or
dishonesty of Principal or its officers or employees. Custodian will not be
liable for any failure to take any action required to be taken under the
Agreement in the event and to the extent that the taking of such action is
prevented or delayed by war (whether declared or not and including existing
wars), revolution, insurrection, riot, civil
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commotion, or act of God, accident, fire, explosion, stoppage of labor, strikes
or other differences with employees, laws, regulations, orders or other acts of
any governmental authority or any other cause whatever beyond its reasonable
control. In the event that there is a loss of Securities, Custodian shall
promptly replace the Securities or the value thereof, and the value of any loss
of rights or privileges resulting from said loss of Securities. In the event
that Custodian obtains entry in a clearing corporation or in the Federal
Reserve book-entry system through an agent, Custodian shall agree with such
agent that the agent shall be subject to the same liability for loss of
Securities as Custodian. Custodian's responsibility for any asset shall be
terminated upon compliance with Principal's instructions regarding withdrawal,
in compliance with procedures established under this Agreement.
ARTICLE XI
MISCELLANEOUS
11.01 WARRANTY. Principal warrants that it has authority to enter
into this Agreement and that it has title to and authority to deliver any
property which will be delivered to Custodian, and that all instructions
provided to Custodian hereunder will be within Principal's authority.
11.02 FEES. Custodian's charges for services provided hereunder
shall be such reasonable compensation as is mutually agreed upon from time to
time by Principal and Custodian.
11.03 GOVERNING LAW - TERMINATION. This Agreement shall be governed
by the laws of the State of Oklahoma and may be terminated by either party upon
sixty (60) days written notice. Custodian's fees shall be prorated to the
termination date.
11.04 SEVERABILITY. In the event that any provision of this
Agreement is held invalid or unenforceable, the remaining provisions shall be
construed to be valid and enforceable nonetheless.
11.05 CAPTIONS. Captions employed in this Agreement are for ease of
reference only and shall not be employed in determining the meaning of any
provision.
11.06 NOTICE. Except where otherwise more specifically provided
herein, notice shall be made in writing by delivery or mail as follows:
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If to Principal:
American Fidelity Variable Annuity Fund A
Attention: Investment Department
2000 Xxxxxxx Center
X.X. Xxx 00000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
If to Custodian:
Attention: Xxxxx X. Xxxxxxx
Bank of Oklahoma, N.A.
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
IN WITNESS WHEREOF, the parties hereby cause their names to be signed
herein and their seals to be affixed and duly attested by their duly authorized
officers, this 30th day of April, 1997.
"PRINCIPAL"
AMERICAN FIDELITY VARIABLE ANNUITY
FUND A
ATTEST: By: American Fidelity
Assurance Company
XXXXXXX X. XXXXXXX By: XXXX X. XXX
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Xxxxxxx X. Xxxxxxx, Secretary Xxxx X. Xxx, President
"CUSTODIAN"
ATTEST: BANK OF OKLAHOMA, X.X.
XXXXX [NOT READABLE] By: XXXXX X. XXXXXXX
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Assistant Cashier Xxxxx X. Xxxxxxx, Senior Vice
President & Senior Trust Officer
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EXHIBIT "A"
AUTHORIZED EMPLOYEES
NAME TITLE
---- -----
Xxxxxx X. Xxxxx, Xx. Vice President
Xxxx X. Xxxxxx Vice President
Xxxx X. Xxxxxx Assistant Vice President
Xxxxxx Xxx Investment Administrator
Xxxxx Xxxx Investment Administration Asst.
Xxx Xxxxx Senior Executive Assistant
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EXHIBIT "B"
AUTHORIZED SIGNATORIES
NAME SIGNATURE
---- ---------
Xxxxxx X. Xxxxx, Xx.
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Jo Xxx Xxxxxxxx
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Xxxxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxxxx
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Xxxxxxx X. Xxxxxxx
----------------------------
Xxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxx
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Xxxx X. Xxx
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M. Xxxxxxx Self
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EXHIBIT "C"
AUTHORIZED ADVISORS
Xxxxxxxx Xxxxx & Associates
000 X. XxxXxxxxx Xxxxx 000
Xxxxxxxx XX 00000
(000) 000-0000
Xxxx Investment Advisors
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx XX 00000
(000) 000-0000
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EXHIBIT "D"
FORM A
CUSTODIAN AFFIDAVIT
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STATE OF OKLAHOMA )
) SS.
COUNTY OF OKLAHOMA )
________________________________, being duly sworn deposes and says
that he is _________________________________ of BANK OF OKLAHOMA, N.A.,, a
banking corporation organized under and pursuant to the laws of the
_________________________ with the 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 AMERICAN FIDELITY
VARIABLE ANNUITY FUND A, having a place of business at Oklahoma City, Oklahoma
(hereinafter called the "Insurance Company"), pursuant to an agreement between
the Bank and the Insurance Company.
That the schedule attached hereto is a true and complete statement of
securities (other than those caused to be deposited with The Depository Trust
Company or like entity or a Federal Reserve Bank under the Federal Reserve
book- entry procedure) which were in the custody of the Bank for the account of
the Insurance 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
Insurance Company or its nominee or of the Bank or its nominee, or were in the
process of being registered in such form.
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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 Insurance Company; and
That, to the best of his knowledge and belief, unless otherwise shown
on the schedule, said securities were the property of said Insurance Company
and were free of all liens, claims or encumbrances whatsoever.
BANK OF OKLAHOMA, N.A.
By:
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Subscribed and sworn to before me this ____ day of ______________, 19___.
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Notary Public
My Commission Expires:
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(SEAL)
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EXHIBIT "E"
FORM B
CUSTODIAN AFFIDAVIT
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STATE OF OKLAHOMA )
) SS.
COUNTY OF OKLAHOMA )
________________________________, being duly sworn deposes and says
that he is _________________________________ of BANK OF OKLAHOMA, N.A., a
banking corporation organized under and pursuant to the laws of the
_________________________ with the 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 AMERICAN FIDELITY
VARIABLE ANNUITY FUND A, having a place of business at (hereinafter called the
"Insurance Company"), pursuant to an agreement between the Bank and the
Insurance Company.
That the Bank has caused certain of such securities to be deposited
with _________________________________ and that the schedule attached hereto
is a true and complete statement of the securities of the Insurance Company of
which the Bank was custodian as of the close of business on
________________________, 19____, and which were so deposited on such date.
That the Bank as custodian has the responsibility for the safekeeping
of such securities both in the possession of the Bank or deposited with
______________________________ as is specifically set forth in the agreement
between the Bank as custodian and the Insurance Company; and
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That, to the best of his knowledge and belief, unless otherwise shown
on the schedule, said securities were the property of said Insurance Company
and were free of all liens, claims or encumbrances whatsoever.
BANK OF OKLAHOMA, N.A.
By:
--------------------------------
Subscribed and sworn to before me this ____ day of ______________, 19___.
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Notary Public
My Commission Expires:
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(SEAL)
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EXHIBIT "F"
FORM C
CUSTODIAN AFFIDAVIT
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STATE OF OKLAHOMA )
) SS.
COUNTY OF OKLAHOMA )
________________________________, being duly sworn deposes and says
that he is _________________________________ of BANK OF OKLAHOMA, N.A. , a
banking corporation organized under and pursuant to the laws of the
_________________________ with the 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 AMERICAN FIDELITY
VARIABLE ANNUITY FUND A, having a place of business at
_______________________________ (hereinafter called the "Insurance Company"),
pursuant to an agreement between the Bank and the Insurance Company.
That it has caused certain securities to be credited to its book-entry
account with the Federal Reserve Bank of ___________________________ under the
Federal Reserve book-entry procedure; and that the schedule attached hereto is
a true and complete statement of the securities of the Insurance Company of
which the Bank was custodian as of the close of business on
_______________________, 19___, which were in a "General" book-entry account
maintained in the name of the Bank on the books and records of the Federal
Reserve Bank of ________________________ at such date;
That the Bank has the responsibility for the safekeeping of such
securities both in the possession of the Bank or said "General" book-entry
account as is specifically set forth in the agreement between the Bank and the
Insurance Company; and
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That, to the best of his knowledge and belief, unless otherwise shown
on the schedule, said securities were the property of said Insurance Company
and were free of all liens, claims or encumbrances whatsoever.
BANK OF OKLAHOMA, N.A.
By:
--------------------------------
Subscribed and sworn to before me this ____ day of ______________, 19___.
-----------------------------------
Notary Public
My Commission Expires:
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(SEAL)
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