Exhibit 23 (g)
Custodian Agreements
JPMorgan
Xxxxxx Guaranty October 25, 1996
Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx XX 00000-0000
Xx. Xxxxxxx X. Byme
Legal Counsel
Maxim Series Fund, Inc.
0000 Xxxx Xxxxxxx Xxxx - 0X0
Xxxxxxxxx, XX 00000
Re: Maxim Series Fund, Inc. (SPN 1398326)
Dear Xx. Xxxxx:
The Bank of New York agreed to acquire our Global,
US and UK custody business and related businesses. We are
confident that The Bank of New York, a premier custodian,
will continue X.X. Xxxxxx'x tradition of striving to
provide outstanding service to clients. Indeed, The Bank
of New York will serve the custody needs of our own
internal business groups.
The closing of the acquisition transaction took
place on December 31, 1995. It is contemplated that X.X.
Xxxxxx will assign to The Bank of New York all of X.X.
Xxxxxx'x obligations and rights under the Domestic and
Global Custody agreement that is currently in effect
between Maxim Series Fund, Inc. and X.X. Xxxxxx and the
related custody accounts. The actual transfer of your
assets and accounts to The Bank of New York's systems will
be scheduled in consultation with you. We will work very
closely with you and The Bank of New York to make sure
that the transition is handled as smoothly as possible.
Until your move to The Bank of New York's systems, X.X.
Xxxxxx will continue to handle your business, as an agent
for The Bank of New York.
We trust that this arrangement is satisfactory to
you, and would be pleased to discuss any aspect of the
transaction with you in greater detail. We would
appreciate it if you would confirm Maxim Series Fund,
Inc.'s consent to the transfer by signing in the space
below and returning this letter to us.
Our relationship with you is very important to us
and we believe that The Bank of New York will maintain and
even enhance the quality of services you have been
accustomed to receiving from X.X. Xxxxxx.
For: For:
Xxxxxx Guaranty Trust Company The Bank of New York
of New York /s/ Xxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxx
For:
Acknowledged and agreed to by:
Maxim Series Fund, Inc. Attest:
/s/ X.X. Xxxx /s/ Xxxxxxx X. Xxxxx
A subsidiary of
J. P Xxxxxx & Co.
Incorporated
CUSTODY AGREEMENT
This Agreement is made this 24th day of June 1991 between Maxim Series
Fund, Inc. (the "Company") , a Maryland corporation, and Xxxxxx Guaranty Trust
Company of New York ("Xxxxxx").
1. Xxxxxx will open and maintain an account on behalf of the Company
(the "Account") and hold therein all cash, securities and other property as
shall from time to time be received and accepted by Xxxxxx pursuant to this
Agreement, and will collect and receive all income, monies and other properties
paid or deposited in respect of the property held in the Account or realized on
the sale or other disposition of property in the Account. All assets in the
Account shall be held for the use and benefit of the Company, shall remain the
specific property of the Company and shall not be subject to any claim made by
the Bank against the Company, nor to any right of set off by the Bank and,
except for cash, shall not be subject to the claim of any third party against
the Bank.
2. Xxxxxx will, upon instructions of the Company given as provided in
paragraph 14: (a) deliver or receive securities and other property, (b) convert,
redeem or exchange for other securities and other property any securities or
other property at any time held in the Account, and (c) transfer or make
payments from the Account of securities and other property to such persons as
may from time to time be specified by the Company.
3. Xxxxxx shall notify Company of any fractional interests in securities
received by Xxxxxx as a result of stock dividends and will dispose or sell of
such fractional interests.
4. When Xxxxxx is instructed to receive securities against payment, the
Company will have funds or equivalent receivables on deposit with Xxxxxx or have
funds made available to Xxxxxx in advance for such purpose.
5. Xxxxxx is not under any duty to provide the Company with investment
advice or to supervise the Company's investments.
6. Xxxxxx shall notify the Company of each transaction involving the
Account and will render a statement of transactions with respect to the Account
on a regular basis. Additional periodic statements and certifications of assets
shall be rendered as the Company may reasonably require. Xxxxxx shall at all
times maintain proper books and records with regard to all transactions
contemplated by this Agreement. Books and records shall be subject to audit and
inspection by the Company. During the course of Xxxxxx'x regular business hours,
authorized employees and representatives of the Company, upon giving one
business day notice, or regulatory officials, upon reasonable notice whenever
possible, shall be entitled to examine on Xxxxxx'x premises,
Xxxxxx'x records relating to the Account or inspect the assets of the Account.
7. The Bank will send to the Company (i) such proxies (signed in blank
if issued in the name of the nominee) and communications with respect to
securities in the Account as call for voting or other action by the stockholder;
(ii) any information which relates to legal proceedings and which is received by
Xxxxxx for forwarding to the Company; and (iii) any information relating to the
securities.
8. The Company hereby authorizes Xxxxxx to hold securities owned by the
Company with the Depository Trust Company, the Participants Trust Company, the
Federal Reserve Bank and Euroclear. Securities so held by Xxxxxx, or held in
fungible bulk by Xxxxxx for more than one owner, shall be separately identified
on Xxxxxx'x official records as being owned by the Company. Xxxxxx shall provide
annual certification that the securities are held in custody or as required by
applicable regulatory officials.
9. Xxxxxx'x records shall identify which securities are kept with the
Depository Trust Company, the Participants Trust Company, the Federal Reserve
Bank and Euroclear and shall also identify the location of the securities, and,
if held through an agent, the name of the agent.
10. All the securities that are registered must be registered in the
name of the Company, in the name of a nominee of the Company, in Xxxxxx'x name
or its nominee, or, if held in an authorized clearing corporation, in the name
of the clearing corporation or its nominee. For securities held in the name of a
nominee, the Company will have the same responsibility as if the securities were
registered in its name.
Compensation for Xxxxxx'x services pursuant to this Agreement
shall be as agreed to in advance from time-to-time by Xxxxxx and the Company and
shall be evidenced in writing. Xxxxxx will provide a monthly statement to the
Company reflecting the fees due and owing to Xxxxxx for its services rendered
pursuant to this Agreement. The Company will remit payment according to said
invoice within 30 business days after receipt thereof either by electronic wire
transfer or by check. If such statement is not paid within the thirty day
period, Xxxxxx is authorized to charge the account in accordance with its
preauthorized debit procedures.
12. Xxxxxx is authorized to charge the account with all taxes and
expenses incidental to the transfer of securities on the Company's behalf and
will provide on a monthly basis an itemized statement to the Company of such
charges.
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13. Xxxxxx is authorized to disclose the Company's name, address and
securities position to the issuers of such securities when requested to do so by
them.
14. Xxxxxx shall be authorized to accept and rely upon the instructions
given by any authorized employee of the Company, including any verbal
instructions which the individual receiving such instructions on behalf of
Xxxxxx believes in good faith to have been given by an authorized employee of
the Company, and all authorizations shall remain in full force and effect until
canceled or superseded by subsequent instructions received by Xxxxxx.
15. Xxxxxx will post income and principal payments to the Account
pursuant to Schedule A attached hereto and incorporated herein by reference. For
any failure to so post income and principal payments, Xxxxxx agrees to pay
compensation to the Company as agreed to in writing by the parties.
16. After safe delivery of securities to Xxxxxx and until redelivery or
other disposition of such securities pursuant to instructions by the Company,
Xxxxxx assumes liability for loss thereof due to the negligence or willful
misconduct of Xxxxxx, the unexcused breach of this Agreement by Xxxxxx or
violation by Xxxxxx of any applicable law, regulation or order. Safe delivery
shall be evidenced by a confirmation issued by Xxxxxx.
17. Xxxxxx agrees that it is responsible for and required to fully
reimburse and indemnify the Company for any loss of securities pursuant to
Paragraph 16 above. In the event there is a loss of securities as to which
Xxxxxx is obligated to indemnify the Company, Xxxxxx shall promptly replace the
same or the value thereof, and the value of any loss of rights or privileges
pertaining to such securities which result from such loss.
18. When Xxxxxx is instructed to deliver securities against payment,
delivery may actually be made before receipt of payment in accordance with
generally accepted market practice of net end-ofday settlement. The Company
bears the risk that the recipient of the securities may fail to make payment,
return the securities or hold the securities or the proceeds of their sale in
trust for the Company of for Xxxxxx as agent.
19. The Company will execute its investment transactions on its own
behalf. However, in the event the Company chooses to utilize the services of
Xxxxxx, Xxxxxx will, at its sole discretion, accept orders from the Company for
the purchase or sale of securities and either execute such orders itself or by
means of an agent, such as a broker or other financial organization of its
choice, subject to the fees and commissions in effect from time to
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time. Xxxxxx shall not be responsible for any act or omission, or for the
solvency, of any broker or agent selected by Xxxxxx to effect any transaction
for the Company's account. When instructed to buy or sell securities for which
Xxxxxx acts as a dealer, Xxxxxx will buy or sell such securities from or to
itself as principal.
20. Xxxxxx will be entitled to reverse any credits made on the Company's
behalf where such credits have been previously made and securities or monies are
not finally collected.
21. All shipments of negotiable or non-negotiable securities from Xxxxxx
must be by registered mail, registered airmail and/or express and connecting
messenger therewith and must be insured.
22. Xxxxxx shall be under no obligation or duty to take action to effect
collection of any amount if the securities upon which such payment is due are in
default, or if payment is refused after due demand and presentation.
23. It is understood that Xxxxxx is authorized to supply any information
regarding the Account which is required by any law or governmental regulation
now or hereafter in effect.
24. Each and every right granted to the parties hereunder or under any
other document delivered hereunder or in connection herewith, or allowed them by
law or equity, shall be cumulative and may be exercised from time to time. No
failure on the part of either party to exercise, and no delay in exercising, any
right will operate as a waiver thereof, nor will any single or partial exercise
by either party of any right preclude any other or future exercise thereof or
the exercise of any other right.
25. In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations shall not in any
way be affected or impaired thereby, and if any provision is inapplicable to any
person or circumstances, it shall nevertheless remain applicable to all other
persons and circumstances.
26. This Agreement may be amended or terminated at any time by written
agreement of the parties and may be terminated by either party at any time upon
60 days written notice to the other party. In the event of termination of this
Agreement, Xxxxxx shall join in whatever action is necessary to effect the safe
return to the Company, or the transfer to such person(s) designated by the
Company, of the assets comprising the Account.
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27. Notices and other communications shall be addressed to the parties
hereto at the address set forth in the signature part of this Agreement.
28. The Agreement shall be governed by the laws of the State of New York
and will be binding upon the successors and assigns of the parties hereto.
Dated as of the day and year first above written.
MAXIM SERIES FUND, INC. XXXXXX GUARANTY TRUST COMPANY
0000 X. Xxxxxxx Xxxx XX XXX XXXX
Xxxxxxxxx, Xxxxxxxx 00000 New York, New York
By: /s/ X.X. Xxxxxxx By: /s/
Title: Treasurer Title: Vice President
By: /s/ R.B/ Xxxxx By:
Title: Secretary Title:
Taxpayer Identification No.:
00-0000000
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SCHEDULE A
Security Type .......Date of Credit Type of Funds
-------------------------------------------------------------------------------------
DTC Eligible - Interest Payable Date Like Funds
Principal Amortization Payable Date, if the
factor is known ,
upon collection, if
factor is unknown Like Funds
Physical - Interest Payable Date Like Funds
FRB Eligible Payable Date Fed Funds
PTC Eligible - GNMA I Payable Date + 1 Fed Funds
PTC Eligible - GNMA II Payable Date Fed Funds
CMO's - Interest Payable Date Like Funds
CMO's - Principal Upon collection, Like Funds
Scheduled Maturities
- FRB,DTC Payable Date Like Funds
- Physicals Upon collection -
typically Payable Date Like Funds
Other Categories Upon Collection Like Funds
Dated: June 24, 1991
Securities, Trust & Information Services
(GCIC - Brussels)
Global Custody Agreement
JPMorgan
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XX.XX
Global Custody Agreement
Agreement dated as of December -, 1993 between Xxxxxx Guaranty Trust Company
of New York (the "Custodian"), acting through its office at 00 xxxxxx xxx
Xxxx, Xxxxxxxx, Xxxxxxx, and Maxim Series Fund, Inc. (the "Client").
Whereas, the Client desires to arrange for the custody of certain of its assets
and the provision of related services by the Custodian;
Now, Therefore, in consideration of the mutual agreements contained herein,
the Custodian and the Client agree as follows:
1. Definitions. The following terms, as used herein, shall have the following
meanings-.
"Authorized Instruction" means a written, oral or electronic communication
received by the Custodian that the Custodian believes in good faith to have
been given by an Authorized Person and that has been transmitted subject to
the Security Procedure or Procedures agreed upon in writing by the Custodian
and the Client.
"Authorized Persons" means those persons who have been designated by or duly
authorized by the Client pursuant to all necessary corporate or other action
(which shall be evidenced by appropriate documentation delivered to the
Custodian) to act on behalf of the Client in connection with this Agreement.
Such persons shall continue to be Authorized Persons until such time as the
Client has delivered to the Custodian appropriate documents revoking the
authority of such persons.
"Cash" has the meaning set forth in Section 5.
"Cash Account" means a current account (which may be divided into a number of
subaccounts, denominated in U.S. dollars, Belgian francs or any other currency
or Composite Currency Unit acceptable to the Custodian) opened by the
Custodian on its books in the name of the Client.
"Communication Products" has the meaning set forth in Section 28.
"Composite Currency Units" means the European Currency Unit ("ECU"), the
Special Drawing Right "SDR") or another composite unit consisting of the
aggregate of specified amounts of specified currencies, such as ECU, SDR or
other unit may be constituted from time to time.
"Xxxxxx Affiliate" means any office or branch of Xxxxxx Guaranty Trust Company
of New York ("Xxxxxx") other than the Custodian and any other entity that
directly, or indirectly through one or more intermediaries, controls Xxxxxx or
any other entity that is controlled by or is under common control with Xxxxxx.
"Securities Account" means any securities account opened by the Custodian on
its books in the name of the Client.
"Securities Depository" means any securities depository, book-entry system or
clearing system set forth on Appendix A hereto, as amended from time to time
in accordance with Section 19 hereof.
"Security" means any share, stock, bond, debenture, note, certificate of
indebtedness, warrant, option or other security or financial instrument
acceptable to the Custodian (whether represented by a certificate or by a
book-entry on the records of the issuer or other entity responsible for
recording
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xx.xx
such book-entries) that is from time to time held for the account of the
Client directly, or indirectly through a Subcustodian or Securities
Depository, by the Custodian pursuant to this Agreement.
"Security Procedure" means a procedure established in accordance with terms and
conditions agreed upon in writing by the Custodian and the Client for the
purpose of (i) verifying that an Authorized Instruction or communication
amending or canceling an Authorized Instruction is that of the Client or (ii)
detecting error in the transmission or the content of an Authorized Instruction
or communication. A Security Procedure may require the use of algorithms or
other codes, identifying words or numbers, encryption, callback procedures, or
similar security devices.
"Subcustodian" means any bank or other institution (other than a Securities
Depository) set forth on Appendix A hereto, as amended from time to time in
accordance with Section 19, hereof.
"Unencumbered Securities Account" has the meaning set forth in Section 14.
2. Representations, Warranties and Covenants of the Client. The Client
represents and warrants that the execution, delivery and performance by the
Client of this Agreement (i) are within the Client's corporate, trust or other
constitutive powers; (ii) have been duly authorized by all necessary corporate,
trust or appropriate action under its constitutive documents; (iii) require no
action by or in respect of, or filing with, any governmental body, agency or
official (including without limitation any exchange control approvals) other
than those set forth in Appendix B, which have been duly taken or made or will
be duly taken or made as and when required; and (iv) do not contravene, or
constitute a default under any provision of applicable law or regulation or of
the organic documents of the Client or of any agreement, judgment, injunction,
order, decree or other instrument binding upon the Client. In addition, the
Client represents and warrants that each of the statements set forth in Appendix
B under "Additional Information" is true and correct. The Client represents,
warrants and covenants that the Custodian shall be entitled to deal with all
Securities free of any propriety or equitable interest of any person or entity
(other than interests of the Client, the Custodian, Subcustodians and Security
Depositories). The Client agrees to inform the Custodian immediately if any
statement set forth in this Section 2 or in Appendix B ceases to be true and
correct as of any date after the date hereof.
3. Securities Accounts. The Client hereby establishes with the Custodian one or
more Securities Accounts, which shall contain, in the manner and on the terms
specified herein, the Client's Securities.
4. Terms of Custody.
(a) Authority to Hold Securities. Subject to the terms and conditions of
this Agreement, ---------------------------- the Client
hereby authorizes the Custodian to hold any Securities received from time to
time for the account of the Client. The Custodian may, at its sole discretion,
hold the Securities directly or indirectly through one or more Subcustodians or
Securities Depositories. Securities held indirectly through any Subcustodian
shall be held subject to the terms and conditions of the Custodian's agreement
with such Subcustodian. Securities held indirectly through any Securities
Depository shall be held subject to the Custodian's or Subcustodian's agreement
with such Securities Depository and to the rules and terms and conditions of
such Securities Depository.
lb) Fungibility. The Client agrees that Securities of any issue held by the
Custodian directly, or indirectly through any Subcustodian or Securities
Depository, may be treated as fungible with all other securities of the same
issue pursuant to the provisions of the Belgian Royal Decree No. 62 of November
10, 1967, as amended (or other applicable law). The Client shall have no right
to any
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specific securities but shall instead be entitled, subject to applicable laws
and regulations and to the terms of this Agreement, to transfer, deliver or
repossess from the Custodian an amount of securities of any issue that is
equivalent to the amount of such securities credited to a Securities Account,
without regard to the certificate numbers (or other identifying information)
of the securities originally deposited, and the Custodian's obligation to the
Client with respect to such Securities shall be limited to effecting such
transfer, delivery or repossession.
(c) Identification of Client's Interests. The Custodian shall cause the Client's
interest in any Securities held directly by the Custodian to be evidenced by a
credit to a Securities Account on the books of the Custodian. The Custodian
shall cause the Client's interest in any Securities held indirectly by the
Custodian through a Subcustodian or Securities Depository to be evidenced by (i)
a credit to a Securities Account on the books of the Custodian, (ii) by a credit
to the account of the Custddian on the books of the Subcustodian and (iii) by a
credit to the account of the Custodian or Subcustodian on the books of the
Securities Depository. Securities may be registered in the name of the
Custodian's nominee or, as to any Securities held by an entity other than the
Custodian, in the name of such entity's nominee. The Client agrees to hold any
such nominee harmless from any liability as a holder of record of such
Securities.
(d) Liens of Subcustodians and Securities Depositories. Unless otherwise
authorized by the Client in writing, the Custodian shall hold Securities
indirectly through a Subcustodian or Securities Depository only as long as (i)
the Securities are not subject to any right, charge, security interest, lien or
claim of any kind in favor of such Subcustodian or Securities Depository or the
creditors or operators of any of them, including a receiver or trustee in
bankruptcy or similar authority, except for a claim of payment for the safe
custody or administration of the Securities or for funds advanced on behalf of
the Client by such Subcustodian or Securities Depository and (ii) beneficial
ownership of the Securities is freely transferable without the payment of money
or value other than for safe custody or administration.
S. Cash Account.
(a) The Client hereby establishes and shall maintain with the Custodian a
Cash Account to be used in connection with transactions relating to
the Securities. The collected balance from time to time in the Cash
Account shall constitute "Cash". Any credit made to the Cash Account
shall be provisional and may be reversed if such payment is not
actually collected or received.
lb) Except as otherwise provided by law, the Cash Account (including
subdivisions maintained in different currencies, including Composite Currency
Units) shall constitute one single and indivisible current account.
Consequently, the Custodian has the right, among others, of transferring the
balance of any subaccount of the Cash Account to any other subaccount at any
time and without prior notice.
(c) The Custodian may in accordance with customary practice hold any currency
(other than Belgian Francs) or Composite Currency Unit in which any subdivision
of the Cash Account is denominated on deposit in, and effect transactions
relating thereto through, an account (a "Foreign Account") with a Xxxxxx
Affiliate or another bank in the country where such currency is the lawful
currency or in other countries where such currency or Composite Currency Unit
may be lawfully held on deposit,
(d) The Custodian shall have no liability for any loss or damage arising
from the applicability of any law or regulation now or hereafter in
effect, or from the occurrence of any event, which may affect the
transferability, convertibility, or availability of any currency
(other than Belgian Francs) or Composite Currency Unit in the
countries where such Foreign Accounts are maintained and in no event
shall the Custodian be obligated to substitute another currency for a
currency (including a
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3
currency that is a component of a Composite Currency Unit) whose
transferability, convertibility or availability has been affected by such law,
regulation or event. To the extent that any such law, regulation or event
imposes a cost or charge upon the Custodian in relation to the
transferability, convertibility, or availability of any such currency or
Composite Currency Unit, such cost or charge shall be for the account of the
Client. If pursuant to any such law or regulation, or as a result of any such
event, the Custodian cannot deal in any component currency of a Composite
Currency Unit or effect a particular transaction in a Composite Currency Unit
on behalf of the Client, the Custodian may thereafter treat any account
denominated in an affected Composite Currency Unit as a group of separate
accounts denominated in the relevant component currencies.
(e) Transactions in a currency or Composite Currency Unit shall be subject to
the regulations laid down by the exchange control authorities of Belgium and
of the country where such currency is the lawful currency or where such
Composite Currency Unit is held on deposit.
6. Instructions by the Client.
(a) Generally, The Client shall give an Authorized Instruction with
respect to Cash and --------- Securities only to the Custodian or to
the Custodian's designee. The Client agrees to be bound by all
Authorized Instructions, whether or not such instructions were duly
authorized in accordance with the Client's own procedures. The
Custodian shall not be required to follow any Authorized Instruction
that would violate any applicable law, decree, regulation or order of
any government or governmental body (including any court or tribunal)
or that would be contrary to any provision of this Agreement.
(b) Payments. Payments shall be made by the Custodian or a Subcustodian only
to the extent that sufficient Cash in the applicable currency is available in
the Cash Account or otherwise available therefor and only (i) as specified by
an Authorized Instruction, (ii) as permitted by Sections 14 and 15 or (iii)
upon the termination of this Agreement as set forth in Section 17 hereof. The
Custodian may make payments, or direct a Subcustodian to make payments, from
time to time on behalf of the Client when sufficient Cash in the applicable
currency is not available in the Cash Account or otherwise available therefor,
but neither the Custodian nor any Subcustodian shall have any obligation to
make such payments. If any payments are made that result in an overdraft in a
particular currency, then such overdraft shall be payable on demand by the
Custodian and shall bear interest for each day outstanding at the rate
customarily charged by the Custodian for overdrafts in such currency.
(c) Delivery of Securities. Any Securities held by a Subcustodian shall be
subject only to the instructions of the Custodian (or another Subcustodian for
which such Subcustodian is acting) and any Securities held by a Securities
Depository shall be subject only to the instructions of the Custodian (or the
Subcustodian for which such Securities Depository is acting). Securities shall
be transferred, exchanged, or delivered by the Custodian or a Subcustodian to
the extent that sufficient Securities are actually in the Securities Account
and available for delivery and only:
(i) as specified by an Authorized Instruction;
(ii) in exchange for or upon conversion into other Securities or Cash pursuant
to a plan of merger, consolidation, reorganization, recapitalization or
readjustment;
(iii) upon the conversion of Securities pursuant to their terms into other
Securities;
(iv) as permitted by Sections 14 and 15; or
(v) upon the termination of this Agreement as set forth in Section 17 hereof.
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7. Corporate Actions. Until the Custodian receives an Authorized Instruction to
the contrary, the Custodian shall, or shall instruct the appropriate
Subcustodian to:
(i) collect dividends, interest and other payments made and stock dividends,
rights and similar distributions made or issued with respect to Securities, in
each case net of any applicable taxes or other charges withheld by the payor
of such payment or distribution;
(ii) promptly after the Custodian becomes aware thereof, notify the Client of
any rights offering by any issuer of Securities held in a Securities Account
and, to the extent permitted by law applicable to the relevant Subcustodian
and the Custodian, sell such rights in the principal market for such rights
and deposit the proceeds of such sale in the Client's Cash Account if the
Client does not instruct the Custodian whether to purchase securities under
such rights offering by the deadline for such purchase;
(iii) promptly after receipt thereof, forward to the Client those
communications relating to any Securities which call for voting or the
exercise of rights or other specific action (including materials relating to
legal proceedings intended to be transmitted to holders of such Securities);
(iv) present for payment maturing Securities and those called for redemption;
(v) execute in the name of the Client such ownership and other certificates as
may be required to obtain payment or exercise any rights in respect of any
Securities;
(vi) accept and open all mail directed to the Client in care of the Custodian or
a Subcustodian;
(vii)disclose the Client's name, address and Securities position and any other
information to the issuers of Securities when requested to do so by them;
and
(viii) dispose of fractional interests received by the Custodian or a
Subcustodian as a result of stock dividends by selling any fractional interest
received in accordance with local law and practice.
With respect to any corporate actions not listed above, the Custodian shall
(in the absence of an Authorized Instruction from the Client within any
prescribed deadline) take any action that it considers appropriate in the
circumstances; provided that the Custodian shall not be liable for the
consequences of any such action. If the Custodian or any Subcustodian or
Securities Depository holds any Securities in which the Client has an interest
as part of a fungible mass, the Custodian or such Subcustodian or Securities
Depository shall select the securities to participate in partial redemptions,
partial payments or other actions affecting less than all securities of the
relevant class in any non-discriminatory manner that it customarily uses to
make such selection. If any Securities become subject to a partial redemption,
partial payment or other action, the Client agrees that any manner used by the
Securities Depository to select the securities to participate in such partial
redemption, partial payment or other action shall be acceptable.
8. Reporting.
(a) Statements. The Custodian shall mail, or cause to be mailed, or transmit
---------- electronically to the Client (or, with prior written consent of
the Client, make available electronically) monthly statements of the
Securities Accounts and Cash Account. Such statements shall list all
Securities and Cash and specify (i) whether the Securities are held
directly by the Custodian or indirectly through a Subcustodian or
Securities Depository and (ii) the amount of Cash held on deposit in each
currency. The Client agrees that each such statement shall be binding on
the Client 30 days after (a) in the case of any statement sent by mail, it
has been mailed by first class mail, postage prepaid or (b) in
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the case of any statement transmitted or made available electronically, it has
been transmitted or
made available electronically to the Client, unless the Client has theretofore
notified the Custodian in writing of any inaccuracy in such statement.
(b) Access to Records. The Custodian shall allow the Client and its
independent public accountants reasonable access to the records of the
Custodian relating to the Securities and Cash as is required by the Client or
its accountants in connection with their examination of the books and records
pertaining to the affairs of the Client and shall require each Subcustodian
and Securities Depository to grant such access to the Client and its
independent public accountants to the extent consistent with applicable law
and regulations. The Custodian has no obligation to maintain any records for a
period of more than 10 years. The Custodian shall have no obligation to
require any Subcustodian or Securities Depository to maintain records for any
specified period of time.
(c) Other Information. From time to time, the Custodian may provide additional
reporting information to the Client on terms and conditions agreed upon by the
parties hereto in writing. The additional information may include data
obtained from third parties, such as pricing valuation information relating to
the Securities. The Client agrees that it shall not redistribute or resell
data obtained from third parties, except that it may provide such data to the
beneficial owners of the Securities as recorded on the Client's books and
records.
9. Taxes. The respective responsibilities of the Client and the Custodian with
respect to tax matters are set forth in Appendix C hereto and incorporated by
reference herein.
10. Responsibilities; Indemnification by the Custodian.
(a) Standard of Care. The Custodian shall use reasonable care in the
performance of its ------------ duties hereunder and shall exercise the
same degree of care with respect to the Securities as it would with respect
to its own securities and property. The Custodian shall require each
Subcustodian to use reasonable care in the performance of its duties and to
exercise the same degree of care with respect to the Securities as it would
with respect to its own securities and property and those of its other
customers. The Custodian shall be responsible to ensure that each
Subcustodian that is a Xxxxxx Affiliate performs in accordance with the
foregoing standard. The Custodian's responsibility with respect to any
Securities held by a Subcustodian (other than a Xxxxxx Affiliate) or any
carrier of Securities acting for the Custodian or any Subcustodian is
limited to the failure on the part of the Custodian (or a Subcustodian that
is a Xxxxxx Affiliate) to exercise reasonable care in the selection or
retention of such Subcustodian or carrier; it being understood that the
Client shall be deemed to have approved the selection of the Subcustodians
listed on Appendix A (as amended from time to time in accordance with
Section 19) or otherwise approved or selected by the Client.
(b) Insurance. The Custodian shall, and shall require each Subcustodian to,
maintain insurance coverage with respect to the Securities covering such risks
and in such amounts as the Custodian or such Subcustodian maintains with
respect to securities which the Custodian or such Subcustodian holds for its
own account and for the account of other customers.
(c) Indemnification by the Custodian. The Custodian shall indemnify the Client
against, and hold the Client harmless from, any loss or liability (including,
without limitation, the reasonable fees and disbursements of counsel and other
legal advisors, but excluding all losses and liabilities of the types
described in Section I 1 hereoo incurred by the Client by reason of the
negligence (whether through action or inaction) or willful misconduct of the
Custodian or any Subcustodian that is a Xxxxxx Affiliate in connection with
the services provided pursuant to this Agreement or the applicable
subcustodian agreement. The Custodian shall require each Subcustodian that is
not a Xxxxxx Affiliate to indemnify the Custodian and the Client against, and
hold the Custodian and the Client
Rev. 9/28/93
2.CUS
6
harmless from, any loss or liability (including, without limitation, the
reasonable fees and disbursements of counsel, but excluding all losses and
liabilities of the types specified in Section I 1) incurred by the Custodian
or the Client by reason of the negligence (whether through action or inaction)
or willful misconduct of such Subcustodian in connection with the services
provided by such Subcustodian pursuant to the applicable subcustodian
agreement.
11. Limitations on Responsibilities and Liabilities.
(a) Generafly, The Custodian shall be responsible for the performance of only
those --------- duties as are set forth herein or contained in an
Authorized Instruction that is not contrary to the provisions of this
Agreement.
(b) Consequential Damages. Under no circumstances shall the Custodian, any
Subcustodian or any Securities Depository be liable to the Client or any other
person for indirect, special or consequential damages, even if the Custodian
or such Subcustodian or Securities Depository is apprised of the likelihood of
such damages.
(c) Coroorate Actions. The Custodian shall not be liable for any loss
occasioned by the failure of the Custodian to notify the Client of any payment
of dividends or interest or any redemption, rights offering or other
distribution made with respect to any Security or any other corporate action
taken or to be taken with respect to any Security if the Custodian or a
Subcustodian has not received notice of such transaction directly from the
issuer of such Security or if such distribution or action was not included in
the reports of an internationally-recognized investment data service selected
by the Custodian.
(d) Authorized Instructions. Neither the Custodian nor any Subcustodian shall
be liable ----------------------- for any action taken in good faith upon
an Authorized Instruction.
(e) Payment and Delivery Instructions. In some securities markets, securities
deliveries and payments therefor may not be or are not customarily made
simultaneously. Accordingly, the Client agrees that, notwithstanding the
Client's instruction to deliver Securities against payment or to pay for
Securities against delivery, the Custodian or a Subcustodian may make or
accept payment for or delivery of Securities in such form and manner as may be
satisfactory to it and at such time and in such manner as shall be in
accordance with the customs prevailing in the relevant market or among
securities dealers. The Client shall bear the risk that (i) the recipient of
Securities may fail to make payment, return such Securities or hold such
Securities or the proceeds of their sale in trust for the Client and (ii) the
recipient of payment for Securities may fail to deliver the Securities (such
failure to include, without limitation, delivery of forged or stolen
Securities) or to return such payment, in each case whether such failure is
total or partial or merely a failure to perform on a timely basis. Neither the
Custodian nor any Subcustodian shall be liable to the Client for any loss
resulting from any of the foregoing events.
(o Reversals. In some securities markets and cash clearing systems, deliveries
of securities and cash may be reversed under certain circumstances.
Accordingly, credits of securities to a Securities Account and cash to the
Cash Account are provisional and subject to reversal if, in accordance with
relevant local law and practice, the delivery of the security or cash giving
rise to the credit is reversed.
(g) Fore4qn Currency Risks. The Client shall bear all risks of investing in
Securities or holding Cash denominated in a currency, including a Composite
Currency Unit, other than that of the Client's home jurisdiction. Without
limiting the foregoing, the Client shall bear the risks that rules or
procedures imposed by Securities Depositories, exchange controls, asset
freezes or other laws or regulations shall prohibit or impose burdens or costs
on the transfer to, by or for the account of the Client of
Rev. 9/28/93
2.CUS
7
Securities or Cash held outside the Client's jurisdiction or denominated in a
currency other than the currency of the Client's home jurisdiction or the
conversion of Cash from one currency into another currency. The Custodian shall
not be obligated to substitute another currency for a currency (including a
currency that is a component of a Composite Currency Unit) whose
transferability, convertibility or availability has been affected Andy such law,
regulation, rule or procedure. Neither the Custodian nor any Subcustodian shall
be liable to the Client for any loss resulting from any of the foregoing events.
(h) Force Maieure. Notwithstanding any other provision contained herein, the
Custodian shall not be liable for any action taken, or any failure to take any
action required to be taken, hereunder or otherwise to fulfill its obligations
hereunder (including without limitation the failure to receive or deliver
securities or the failure to receive or make any payment) in the event and to
the extent that the taking of such action or such failure arises out of or is
caused by war, insurrection, riot, civil commotion, act of God, accident, fire,
water damage, explosion, mechanical breakdown, computer or system failure or
other failure of equipment, or malfunction or failures caused by computer virus,
failure or malfunctioning of any communications media for whatever reason,
interruption (whether partial or total) of power supplies or other utility of
service, strike or other stoppage (whether partial or total) of labor, any law,
decree, regulation or order of any government or governmental body (including
any court or tribunal), or any other cause (whether similar or dissimilar to any
of the foregoing) whatsoever beyond its reasonable control or the reasonable
control of any Subcustodian.
(i) Delays. Except in the case of a failure by the Custodian or a Xxxxxx
Affiliate to exercise the standard of care required by Section 10(a), the
Custodian shall not be liable for delays in carrying out payment instructions
given by the Client. In the event that a delay in the carrying out of a payment
instruction is caused by such a failure of the Custodian or a Xxxxxx Affiliate,
the liability of the Custodian shall not exceed an interest equivalent for the
period from the day when the payment would have been carried out, but for the
negligence of the Custodian or such Xxxxxx Affiliate, until the day when it is
actually carried out (excluding any portion of such period during which the
Custodian cannot carry out such instructions as a result of any event referred
to in Section 11(h)); provided that if the Client shall fail to report the delay
to the Custodian within 10 days from the date when the payment would, but for
the negligence of the Custodian or a Xxxxxx Affiliate, have been made, then the
Custodian shall not be liable for an interest equivalent for more than a total
of 10 days.
6) Client's Reportin-q Obl@gations. The Client shall be solely responsible for
compliance with any notification or other requirement of any jurisdiction
relating to or affecting the Client's beneficial ownership of the Securities,
and the Custodian assumes no liability for noncompliance with such requirements.
(k) No Investment Advice. Neither the Custodian nor any Subcustodian or Xxxxxx
Affiliate -------------- is under any duty to provide the Client with
investment advice or to supervise its investments.
(/) Fraudulent Securities. The Custodian shall have no liability for losses
incurred by the Client or any other person as a result of the receipt or
acceptance of fraudulent, forged or invalid Securities (or Securities which are
otherwise not freely transferable or deliverable without encumbrance in any
relevant market).
(m) Third Party Information. The Custodian shall have no responsibility for the
accuracy of any information provided by the Custodian to the Client that has
been obtained from third parties pursuant to Section 7 or 8(c) of this
Agreement.
Rev. 9/28/93
2.CUS
8
12. Use of Xxxxxx Affiliates.
(a) Executing Orders. The Custodian shall, in its sole discretion and if
permitted by ---------------- applicable law, accept orders from the Client
for the purchase or sale of Securities and either execute such orders
itself or by means of Xxxxxx Affiliates or brokers or other financial
organizations of its choice, subject to the fees and commissions in effect
from time to time. The Custodian shall not be responsible for any act or
omission, or for the solvency, of any broker or other financial
organization so selected to effect any transaction for the account of the
Client. When instructed to buy or sell Securities for which the Custodian
or a Xxxxxx Affiliate acts as a dealer, the Custodian may buy or sell such
Securities from or to either itself, as principal, or such Xxxxxx
Affiliate.
(b) Disclosure to Xxxxxx Affiliates. Notwithstanding the provisions of
Section 26 hereof, the Custodian may disclose to any Xxxxxx Affiliate details
with respect to the Securities and the transactions effected hereunder. Such
disclosure shall be for the purpose of identifying banking, securities and
financial services that Xxxxxx Affiliates may be able to provide to the
Client.
(c) Sub-Contractinq. The Client hereby agrees that the Custodian may arrange
with any Xxxxxx Affiliate to act as a Subcustodian and/or to perform on
behalf of the Custodian any act required to be performed by the Custodian
hereunder.
13. Fees. The Client agrees to pay the Custodian as compensation for the
services provided hereunder a fee computed at rates determined by the
Custodian from time to time and communicated to the Client in advance, as
well as all assessments, charges and expenses (including, without limitation,
legal expenses and aftorney's fees) incurred by the Custodian in connection
with this Agreement.
14. Right to Debit and Set-Off. The Custodian has the right to debit any
subaccount of the Cash Account for any amount payable by the Client in
connection with any and all obligations of the Client to the Custodian,
whether or not relating to or arising under this Agreement. In addition to
the rights of the Custodian under applicable law and other agreements, at any
time when the Client shall not have honored any and all of its obligations to
the Custodian, whether or not relating to or arising under this Agreement,
the Custodian shall have the right without notice to the Client to retain or
setoff, against such obligations of the Client, any assets the Custodian or
any Xxxxxx Affiliate may directly or indirectly hold for the account of the
Client, and any obligations (whether matured or unmatured) that the Custodian
or any Xxxxxx Affiliate may have to the Client in any currency or Composite
Currency Unit, including time deposits and all assets credited to any
Securities Account other than an Unencumbered Securities Account. Any such
asset of, or obligation to, the Client may be transferred among the Custodian
and any Xxxxxx Affiliates in order to effect the above rights. For purposes
of this Agreement, an "Unencumbered Securities Account" means any Securities
Account that is designated by the Client, and acknowledged by the Custodian
in writing, as containing only securities held for the account of the
Client's customers and any other Securities Account as to which the Client
and the Custodian have agreed in writing shall be considered an Unencumbered
Securities Account.
15. Security Interests. In order to secure the prompt and complete payment
when due of any and all obligations of the Client to the Custodian, now
outstanding or which may be outstanding at any time in the future, whether or
not relating to or arising out of this Agreement, the Client hereby pledges
and grants to the Custodian a security interest in (i) all of the Client's
right, title and interest in and to the Cash Account, including any credit or
debit balance which now appears or may at any time in the future appear in
any currency or Composite Currency Unit subaccount of the Cash
Rev.
9/28/93
2-CUS
9
Account, (ii) all of the Client's right, title and interest in and to all time
deposit accounts and notice accounts that the Client may open from time to time
with the Custodian, (iii) all of the Client's right, title and interest in and
to all Securities Accounts (other than Unencumbered Securities Accounts) and the
amount of all securities which are now or at any time in the future shall be
standing to the credit of a Securities Account (other than an Unencumbered
Securities Account) (clauses (i), (ii) and (iii) of this Section 15 being
referred to collectively herein as the "Collateral"), (iv) all amounts of cash,
securities or other property or countervalue received or to be received with
respect to or in exchange for any and all of the then existing Collateral which
are, or are intended, to be credited to the Cash Account or a Securities Account
(other than an Unencumbered Securities Account) and (v) to the extent not
covered by the foregoing, all proceeds, product, offspring, rents or profits of
any or all of the foregoing (whether acquired before or after the commencement
of any bankruptcy or liquidation proceeding by or in respect of the Client)
which are, or are intended to be credited to the Cash Account or a Securities
Account (other than an Unencumbered Securities Account). All time deposit
accounts and notice accounts shall be deemed constituted for an indefinite
period, even though the Client and the Custodian may agree from time to time
that interest thereon will be paid on specified dates rather than only at final
maturity. The foregoing security interests are granted as security only and
shall not subject the Custodian to, or transfer or in any way affect or modify,
any obligation or liability of the Client with respect to any of the Collateral
or any transaction in connection therewith. The Client authorizes the Custodian
to perform all acts which the Custodian, in its sole discretion, deems necessary
or desirable to perfect and preserve its security interests and rights under
this Section 15. Upon any breach by the Client of its obligations hereunder, the
Custodian shall be entitled to exercise all of the remedies available to a
secured creditor under applicable law.
16. Indemnification by the Client. The Client agrees to indemnify the Custodian
and to hold the Custodian harmless from any loss or liability (including,
without limitation, the reasonable fees and disbursements of counsel and other
legal advisors) incurred by the Custodian or any Subcustodian in rendering
services hereunder or in connection with any breach of the terms of this
Agreement by the Client, except such loss or liability which results from the
Custodian's or such Subcustodian's failure to exercise the standard of care
required by Section 10(a) hereof.
17. Termination. This Agreement may be terminated by the Custodian or the Client
following receipt by the other party of 60 days' prior written notice thereof;
provided that such termination may be immediate if the other party shall be in
breach of its obligations hereunder or shall become the subject of bankruptcy,
insolvency, reorganization, receivership or other similar proceedings. If notice
of termination is given by the Custodian, Authorized Persons shall, within 60
days following receipt of such notice, specify in writing the names of the
persons to whom all Securities and Cash shall be delivered or paid. In such
case, the Custodian, subject to the payment of amounts owed to it pursuant to
Sections 6(b) and 13 hereof shall deliver such Securities and Cash, and require
each Subcustodian to deliver any Securities or Cash held by such Subcustodian,
to the persons so specified. If within 60 days following the receipt of a notice
of termination by the Custodian, the Custodian does not receive from the Client
the names of the persons to whom such Securities and Cash shall be delivered,
the Custodian, at its election, may deliver such Securities and Cash, and
require each Subcustodian holding any Securities or Cash to deliver such
Securities and Cash, to a bank or a trust company doing business in the state or
country where such Securities and Cash were held. Securities or Cash so
delivered shall be held and disposed of pursuant to the provisions of this
Agreement or an Authorized Instruction or may be continued to be held until the
names of such persons are delivered to the Custodian. If notice of termination
is given by the Client, the Custodian, subject to the payment of all amounts
owed to it pursuant to Sections 6(b) and 13 hereof shall deliver such Securities
and Cash, and require each Subcustodian holding any Securities or Cash to
deliver such Securities or Cash, to the persons specified in an Authorized
Instruction. If this Agreement is terminated by the Custodian or the Client, but
the Custodian or a Xxxxxx Affiliate continues to provide other services to the
Client in connection with which the Client uses Communication
Rev. 9/28/93
2.CUS
10
Products, then the provisions of Sections 27 and 28 hereof shall survive the
termination of this Agreement until the time that no such other services
continue to be provided by the Custodian or a Xxxxxx Affiliate to the Client
or until otherwise terminated in writing by the Client or the Custodian. The
provisions of Sections 20, 24, 26 and Appendix G hereof and the indemnity
provisions of this Agreement and the provisions limiting the liabilities of
the Custodian and the Subcustodians shall survive the termination of this
Agreement (including any subsequent termination of Sections 27 and 28 hereoo.
18. Notices. Except as otherwise specified herein, any notice or other
communication to the Custodian or Client is to be addressed to the respective
party as set forth in Appendix D hereto or in such other manner as may be
specified by the one party to the other in writing from time to time. Unless
otherwise specified herein, notices shall be effective when received. If any
Authorized Instruction is given to the Custodian orally, then the Custodian's
record of such instruction shall constitute conclusive evidence of the
contents of such instruction, notwithstanding any conflicting written
confirmation or record of such instruction provided by the Client.
19. Amendments and Waivem. Any provision of this Agreement (including the
Appendices hereto) may be amended or waived if, but only if, such amendment
or waiver is in writing and is signed by the Client and the Custodian;
provided that (i) the Custodian may from time to time delete the name of
any Subcustodian or Securities Depository from Appendix A without notice to
or consent by the Client and (ii) the Custodian may from time to time add
the name of any bank, securities depository, book-entry system or clearing
system to Appendix A if it notifies the Client by first class mail of such
addition and does not receive in writing an objection to such addition
within 30 days after the date such notice is mailed.
20. Claims. Any claim arising out of or related to this Agreement must be
brought no later than one year after such claim has accrued.
21. Successors and Assigns; Governing Law; Jurisdiction. This Agreement shall
bind the successors and assigns of the Custodian and the Client. Except as
otherwise provided by the terms of this Agreement, neither the Custodian nor
the Client may assign any of its rights or obligations under this Agreement
without the prior written consent of the other party. This Agreement shall be
governed by and construed in accordance with the law of Belgium. [Alternate:
This Agreement shall be governed by and construed in accordance with the law
of the (State of New York] [England] except that the provisions set forth in
Sections 4(b) and 15 shall be governed by the law of Belgium.] The Client
hereby submits to the non-exclusive jurisdiction of any civil or commercial
court in Brussels [any federal or state court in New York City] [the High
Court of Justice in London) for purposes of all legal proceedings arising out
of or relating to this Agreement or the transactions contemplated hereby. The
Client hereby irrevocably waives, to the fullest extent permitted by
applicable law, any objection which it may now or hereafter have to the laying
of venue of any such proceeding brought in such a court and any claim that any
such proceeding brought in such a court has been brought in an inconvenient
forum. [For New York law only: The Client and the Custodian each hereby
irrevocably waives any and all rights to trial by jury in any legal proceeding
arising out of or relating to this Agreement.] [To the extent that the Client
has or may hereafter have any immunity (sovereign or otherwise) from
jurisdiction of any court or from any legal process with respect to itself or
its property, the Client hereby irrevocably waives such immunity in respect of
its obligations under this Agreement.]
Rev. 9/28/93 2.CUS
xx.xx
22. Counterparts. This Agreement may be signed in any number of counterparts
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
23. Headings. The section headings used herein are for information only and
shall not affect the interpretation of any provision of this Agreement.
24. Evidence. The Custodian's books and records (whether on paper, microfilm,
microfiche, by electronic or magnetic recording, or any other mechanically
reproducible form or otherwise) shall be deemed to constitute, in the absence
of manifest error, sufficient evidence of the facts stated therein and of any
obligations of the Client to the Custodian.
25. Integration. This Agreement constitutes the entire agreement between the
parties hereto and
supersedes any and all prior agreements and understanding, oral or written,
relating to the subject matter hereof.
26. Confidentiality. The parties hereto agree not to disclose to any other
party and to keep confidential the terms and conditions of this Agreement,
any amendment hereof, and any Exhibit, Attachment or Appendix hereof,
including but not limited to service level profiles. The Client agrees to
cause all Authorized Persons to comply with the provisions of this Section
26. In the event that either the Client (including any Authorized Person) or
the Custodian breaches any provision of this Section 26, the other party
shall be entitled to temporary and permanent injunctive relief against the
other party (or such Authorized Person, as the case may be) without the
necessity of proving actual damages. Notwithstanding any other provision
herein, the Custodian may disclose the Client's name, address and securities
position and other information to such persons and to such an extent as
required by law (including, but not limited to, article 28 of the Belgian Law
of December 4, 1990 relating to securities transactions suspected of
constituting market manipulation, xxxxxxx xxxxxxx and other breaches of
financial regulations), the rules of any stock exchange or regulatory or
selfregulatory organization or any order or decree of any court or
administrative body that is binding on the Custodian or any Subcustodian or
Securities Depository.
27. Security Procedures. The validity of all Authorized Instructions
(including communications requesting cancellation or amendment of an
Authorized Instruction), shall be subject to compliance with the applicable
Security Procedure. The Client shall (i) not disclose, or permit any
Authorized Person to disclose, except on a "need to know" basis, any aspects
of any Security Procedure, (ii) notify the Custodian immediately if the
confidentiality of any Security Procedure is compromised and (iii) act to
prevent the Security Procedures from being further compromised. The Client
shall designate one or more persons, as identified in Appendix E, to receive
Security Procedure materials from the Custodian. The Client may amend
Appendix E from time to time upon seven days' prior written notice to the
Custodian in accordance with Section 18 of this Agreement. The Client
acknowledges that it has been fully informed of the protections and risks
associated with each of the various Security Procedures. If the Client
chooses not to use any Security Procedure, then the Client agrees to be bound
by any instruction that the Custodian believes in good faith to have been
given by an Authorized Person.
28. License. The Custodian hereby grants to the Client a personal,
nontransferable and nonexclusive license to use, for its internal purposes
only, the respective number of copies of any hardware, firmware, microcode
and software set forth in Appendix F or hereafter identified by the Custodian
in writing as communication products (the "Communication Products"), for the
respective terms set forth in Appendix F and at the respective locations set
forth in Appendix F, solely in
Rev. 9/28/93
2.CUS
12
connection with transmitting and receiving electronic communications to and from
the Custodian in connection with this Agreement. The Client hereby acknowledges
and agrees that this license is subject to the terms and conditions set forth in
Appendix G.
29. Severability. In the event any of the terms and conditions of this Agreement
shall be held to be illegal or unenforceable, the validity of the remaining
provisions shall not be affected.
In Witness Whereof, the parties have caused this Agreement to be duly executed
by their respective authorized representatives as of the day and year first
above written.
Xxxxxx Guaranty Trust Company of New York... Maxim Series Fund, Inc.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ X. X. Xxxxxxxxx
Title: Xxxxxx X. Xxxxxxx Title: President
Vice President
Rev. 9/28193 2.CUS
13
Appendix A
Global Custody Network
Country Subcustodian Depository'
Argentina Xxxxxx Guaranty Trust Co. Caja de Valores
of New York - Buenos Aires Office
Australia ANZ Banking Group Austraclear
Austria Creditanstalt-Bankverein OEKB-WSB (Wertpapiersammelbank
bei der
Oesterreichischen Kontrolibank AG)
Belgium Xxxxxx Guaranty Trust Co. CIK (Caisse lnterprofessionnelle
of New York - Brussels Office de Depots et de Virements de
Titres)
Euroclear Clearance System Limited
Brazil Xxxxxx Guaranty Trust Co. BOVESPA (Bolsa de Valores de Sao
Paulo;
of New York - Sao Paulo Office equities)
BVRJ (Boisa de Valores de Rio de
Janeiro;
equities)
CETIP (Central de Custodia e
Liquidacao
Financiera de Titulos; corporate
bonds)
SELIC (Sistema Especial de
Liquidacao e
Custodia; government securities)
Canada Canadian Imperial Bank CDS (Canadian Depository for
of Commerce Securities)
Chile Citibank, N.A.
People's Republic of China - Hongkong and Shanghai Banking Shanghai and Shenzhen
Corporation
Denmark Den Danske Bank VP (Vaerdipapircentralen; Danish Securities
Centre)
Finland Union Bank of Finland
France Xxxxxx Guaranty Trust Co. SICOVAM (Societe
lnterprofessionnelle
of New York - Paris Office Pour La Compensation des Valeurs
Mobilieres)
In addition to the central bank, if applicable.
Rev. 9/28/93 2-CUS
xx.xx
Germany X.X. Xxxxxx GmbH DKV (Deutscher Kassenverein)
Greece National Bank of Greece S.A.
Hong Kong Hongkong and Shanghai Banking CCASS (Central Clearing and
Settlement
Corporation System)
Hungary Citibank, N.A.
India Hong Kong and Shanghai Banking
Corporation
Indonesia Hongkong and Shanghai Banking
Corporation
Ireland Allied Irish Banks PLC
Italy Xxxxxx Guaranty Trust Co. Monte Titoli S.p.A.
of New York - Milan Office
Japan The Fuji Bank, Ltd. JASDEC (Japanese Securities
Depository Center)
JSA (Japan Securities AgenCy)2
Korea Bank of Seoul KSSC (Korea Securities Settlement
Corporation)
Luxembourg Banque Internationale a CEDEL (Central de Livraison
Luxembourg, S.A. des Valeurs Mobilieres)
Malaysia Hongkong and Shanghai Banking SCANS (Securities Clearing Automated
Corporation Network Services)
Mexico Citibank, N.A. Indeval
Netherlands Bank Van Haften Labouchere NECIGEF (Nederlands Centraal
lnstituut Voor
Giraal Effectenverkeer BV)
New Zealand ANZ Banking Group Ltd. Austraclear
Norway Den Norske Bank VPS (Verdipapirsentralen; Norwegian
Registry
of Securities)
Philippines Hongkong and Shanghai Banking
Corporation
Portugal Banco Espirito Santo
e Comercial de Lisboa
Singapore Development Bank of Singapore (CDP) Central Depository Pte
o JSA currently does not meet Rule 17-5 requirements.
Rev. 9/28/93 2.CUS
2
Spain Xxxxxx Guaranty Trust Co.
of New York - Madrid Office Banco de Santander
SriLanka Hongkong and Shanghai Banking
Corporation
Sweden Skandinaviska Enskilda Banken VPC (Vaerdepappercentralen;
Securities Register Centre)
Switzerland Xxxxxx Guaranty Trust Co. SEGA (Schweizerische
of New York - Zurich Office Effekten - Giro AG)
Taiwan Hongkong and Shanghai Banking
Corporation
Thailand Hongkong and Shanghai Banking
Corporation
Turkey' Citibank, N.A.
Ottoman Bank
United Kingdom Xxxxxx Guaranty Trust Co. TALISMAN (Transfer, Accounting and
of New York - London Office Lodgement for Investors Stock
Management
for Jobbers) - Sepon Limited
CGO (Central Gilts Office)
CMO (Central Money Markets Office)
United States Xxxxxx Guaranty Trust Co. The Depository Trust Co.
of New York The Participants Trust Co.
Venezuela Citibank, N.A.
3Citibank meets the capital requirements of Rule 17f-5 and Ottoman bank
currently does not.
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Appendix B
Consents and Filings
Additional Information
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Appendix C
Tax Matters
The provisions of this Appendix C shall govern the rights, responsibilities,
duties and liabilities of the Client and the Custodian with respect to the
payment or withholding of all taxes, assessments, duties or other governmental
charges (including any interest or penalty thereon or with respect thereto)
imposed by any governmental authority upon or with respect to (i) any Cash,
(ii) any Securities, and any distributions with respect thereto, and (iii) the
purchase, sale, loan or other transfer of any Security by the Custodian, any
Subcustodian or any Securities Depository on behalf of the Client and any
proceeds or other income from such a sale, loan or other transfer (any such
tax, assessment, duty or other governmental charge being referred to herein as
a "Tax"). All capitalized terms not defined herein shall have the meanings
assigned to them in the Global Custody Agreement.
1. As further provided in this Appendix C, the Client shall be liable for all
Taxes and shall indemnify and hold harmless the Custodian, each Subcustodian
and each Securities Depository for the amount of any Tax that the Custodian or
such Subcustodian or Securities Depository is required under applicable laws
(whether by assessment or otherwise) to pay on behalf of, or in respect of
income earned by or payments or distributions made to or for the account of,
the Client (including any payment of Tax required by reason or an earlier
failure to withhold).
2. The Custodian shall, and shall instruct each Subcustodian and Securities
Depository to, withhold the amount of any Tax which the Custodian or such
Subcustodian or Securities Depository is required to withhold under applicable
law upon collection (on behalf of the Client pursuant to an Authorized
Instruction) of (i) any dividend, interest or other cash distribution made
with respect to any Security, (ii) any stock dividend or distribution of
rights, warrants or other property with respect to any Security and (iii) any
proceeds or income from the sale, loan or other transfer of any Security. The
Custodian shall, and shall instruct each Subcustodian and Securities
Depository to, timely remit the amount of any such tax withheld to the
appropriate governmental authority in the manner required by applicable law.
The Custodian has, and is authorized to grant to each Subcustodian and
Securities Depository, complete discretion to determine the amount of any Tax
which the Custodian or such Subcustodian or Securities Depository is required
to withhold from any distribution, proceeds or income under any applicable
law.
3. In the event that (A) the Custodian or any Subcustodian or Securities
Depository is required under applicable law to pay any Tax on behalf of the
Client (including a payment due by reason of an earlier failure to withhold
such Tax) or (B) the Custodian or any Subcustodian or Securities Depository is
required under applicable law to withhold or otherwise pay any Tax from or
with respect to any distribution or payment in property other than cash which
is collected by the Custodian or such Subcustodian or Securities Depository
(on behalf of the Client pursuant to an Authorized Instruction), the Custodian
shall be authorized to withdraw Cash from any subaccount of the Cash Account
in the amount and currency required to pay such Tax and to use such Cash, or
to remit such Cash to the appropriate Subcustodian or Securities Depository
for the timely payment of such Tax in the manner required by applicable law.
If the Cash Account does not contain sufficient Cash in the appropriate
currency to pay such Tax, the Custodian shall be authorized to withdraw Cash
of any other currency from any subaccount of the Cash Account in an amount
which, when converted to the appropriate
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currency at the exchange rate prevailing on the date of withdrawal, is
sufficient to enable the Custodian or such Subcustodian or Securities Depository
to pay such Tax. If the aggregate amount of Cash in all subaccounts of the Cash
Account is not sufficient to pay such Tax, the Custodian shall promptly notify
the Client of the additional amount of Cash (in the appropriate currency)
required, and the Client shall deposit such additional amount in the Cash
Account promptly after receipt of such notice for use by the Custodian as
specified herein. In the event that the Custodian or any Subcustodian or
Securities Depository is required to pay any such Tax prior to the deposit by
the Client of an additional amount as required hereunder, the Custodian shall be
authorized to withdraw such additional amount (following deposit thereoo from
any subaccount of the Cash Account for payment to its own account or the account
of such Subcustodian or Securities Depository in satisfaction of the Client's
indemnification obligation hereunder.
4. The information delivered to the Client each month pursuant to Section 8(a)
of the Global Custody Agreement shall include the amount of each Tax (i)
withheld by the Custodian or any Subcustodian or Securities Depository from any
payment collected on behalf of the Client, (ii) withheld by the payor of any
payment collected by the Custodian or any Subcustodian or Securities Depository
on behalf of the Client or (iii) paid by the Custodian or any Subcustodian or
Securities Depository on behalf of the Client with Cash withdrawn from the Cash
Account or otherwise obtained pursuant to paragraph 3 of this Appendix C, in
each case during the period since the date of the immediately preceding monthly
report.
5. In the event that the Client is eligible, pursuant to the provisions of any
tax treaty, for a reduced rate of, or exemption from, any Tax which the
Custodian or any Subcustodian or Securities Depository is otherwise required to
withhold or pay on behalf of the Client under any applicable law, the Custodian
shall, or shall instruct such Subcustodian or Securities Depository to, either
withhold or pay such Tax at such reduced rate or refrain from withholding or
paying such Tax, as appropriate; provided that the Custodian has received from
the Client all documentary evidence of residence or other qualification for such
reduced rate or exemption required to be received under such applicable law. As
soon as practicable following the execution of the Global Custody Agreement, the
Client shall notify the Custodian of the Client's eligibility for the benefits
of any tax treaty between the Client's country of residence and the countries
listed in Appendix A to the Global Custody Agreement and to the extent possible,
fumish to the Custodian all forms or other documentary evidence required under
applicable law to establish such eligibility. The Custodian shall, and shall
instruct each Subcustodian and Securities Depository to, withhold or pay any Tax
at a reduced rate hereunder, or refrain from withholding or paying any Tax, only
in reliance upon documentation furnished to the Custodian pursuant to this
paragraph 5. The Custodian and each Subcustodian and Securities Depository shall
have no responsibility for the accuracy or validity of any forms or
documentation provided by the Client to the Custodian hereunder, and the Client
hereby indemnifies and agrees to hold harmless the Custodian and each
Subcustodian and Securities Depository in respect of any liability arising from
any underwithholding or underpayment of any Tax which results from the
inaccuracy or invalidity of any such forms or other documentation.
6. In the event that the Custodian becomes aware that any person is required
under applicable law of any country to withhold any Tax from any payment
collected by the Custodian or any Subcustodian or Securities Depository on
behalf of the Client, and the Client has previously provided to the Custodian
pursuant to paragraph 5 of this Appendix C all forms or other documentary
evidence required under applicable law to establish eligibility for an exemption
from or reduced rate of such withholding pursuant to any tax treaty between such
country and the Client's country of residence,
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then the Custodian shall furnish, or shall instruct such Subcustodian or
Securities Depository to furnish, to the extent permissible and effective to
establish such eligibility under applicable law, such forms or other documentary
evidence on behalf of the Client to the person required to withhold such Tax. In
the event that the Custodian or such Subcustodian or Securities Depository is
not permitted under applicable law to furnish the necessary forms or other
documentary evidence on behalf of the Client, the Custodian shall make
reasonable efforts to notify the Client, reasonably promptly after it becomes
aware of such requirement, that the Client is required under such law to furnish
such items to the person required to withhold such Tax. In the event that (i)
the Tax which any such person is required to withhold is imposed under an
applicable law of a country other than those listed in Appendix A to the Global
Custody Agreement or (ii) the Custodian or an appropriate governmental authority
or withholding agent has determined that any forms or other documentation
previously provided to the Custodian pursuant to paragraph 5 of this Appendix C
are insufficient to establish the eligibility of the Client for a reduced rate
of, or exemption from, withholding of any Tax imposed under the applicable law
of a country listed in Appendix A to the Global Custody Agreement, the Custodian
shall make reasonable efforts to so notify the Client reasonably promptly after
the Custodian becomes aware that such Tax is required to be withheld.
7. In the event that (i) the Client is eligible pursuant to the provisions of
any tax treaty for a reduced rate of, or exemption from, withholding of any Tax,
which reduced rate or exemption is obtainable only by means of application to
the appropriate governmental authority for a refund of tax paid or withheld, or
(ii) the Custodian or any Subcustodian or Securities Depository withholds from
any distribution, proceeds or income collected on behalf of the Client an amount
which is subsequently determined to be greater than the amount required under
applicable law to have been withheld, the Custodian shall, or shall instruct the
appropriate Subcustodian or Securities Depository to, assist the Client, to the
extent permissible under applicable law, to obtain a refund of such Tax from the
appropriate governmental authority in the amount for which the Client is
eligible.
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Appendix D
Notices to the Custodian
Xxxxxx Guaranty Trust Company of New York, Brussels Office
00 xxxxxx xxx Xxxx
Xxxxxxxx 0000, Xxxxxxx
Attention: Securities Trust and Information Services, Global Custody
Facsimile No. 000-000-0000
Telephone No. 000-000-0000
Notices to the Client
Great-West Life & Annuity Insurance Company
2nd Floor, Tower 2 0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 801 11
Attention: Mr. Xxxxx XxXxxx
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Appendix E
Persons Authorized by the Client to Receive Security Procedure Materials
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Appendix F
Communication Products
COMMUNICATION ....TERM NUMBER OF COPIES
LOCATION(S)
PRODUCT (check one)
-As long as this Agreement remains in effect
-One year with automatic renewal for
successive one year terms thereafter -Fixed
term until
-As long as this
Agreement remains in effect
-One year with automatic
renewal for successive one year
terms thereafter
-Fixed term until
-As long as this
agreement remains in effect
-One year with automatic
-
renewal for successive one year terms
thereafter
-Fixed term until
-As long as this
-
Agreement remains in effect
-One year with automatic
-
renewal for successive one year terms thereafter
-Fixed term until
-As long as this
Agreement remains in effect
-One year with automatic
-
renewal for successive one year terms thereafter
-Fixed term until
-As long as this Agreement remains in effect
-One year with automatic renewal for
successive one year terms thereafter -Fixed
term until
Appendix G
Communication Products - Terms and Conditions
1. Misuse; Confidentiality; Copies. The Client shall not transfer, sublicense,
rent, lease, convey, translate, convert to another programming language,
decompile, disassemble, modify or change any Communication Product for any
purpose. The Client shall not use any Communication Product in a manner which
would violate this license or infringe the proprietary rights of the Custodian
or others or violate the laws, tariffs or regulations of any country. The
Client agrees not to disclose to any other party and to keep confidential all
of the Communication Products and all information contained in or related to
the Communication Products and related documentation. The Client may make only
one copy of each licensed software Communication Product for backup purposes
in support of its authorized use of the software. The Client shall include any
applicable copyright notice on any such software backup. The Client is
permitted to use each licensed copy of any Communication Product on only one
computer or local area network at a time.
2. Compatible Products. The Client shall be responsible for obtaining and
maintaining hardware, software and other equipment and products that are
compatible with the Communication Products, as compatibility is defined by the
Custodian from time to time. The Custodian shall give the Client reasonable
advance notice of any changes in such compatibility requirements.
3. Documentation. If available, the Custodian shall give the Client one copy
of a user manual and related documentation (the "Documentation") for each
licensed Communication Product. The Documentation is intended to be used for
training and informational purposes. The Documentation describes Security
Procedures that the Client must comply with in using the Communication
Products. The Client shall immediately notify the Custodian in writing if it
believes any Security Procedure has been compromised or if any Communication
Product fails to perform as described in the Documentation.
4. Installation. At its option, the Custodian shall either install the
Communication Products at the locations specified by the Client or shall
furnish the Client with installation instructions. From time to time, at its
option, the Custodian shall either install new releases of the Communication
Products or furnish the Client with installation instructions and direct the
Client to install such new releases by itself. The Client agrees to allow the
Custodian to install such new releases or to install such new releases by
itself if directed to do so by the Custodian.
5. Returns, Repairs and Replacements. Upon the termination of this License
with respect to any Communication Product, the Client agrees to return all
copies of such Communication Product and related documentation to the
Custodian. The Client agrees to pay any shipping charges incurred in
connection with the return of any Communication Product to the Custodian for
replacement, update or upon termination of this License with respect to such
Communication Product. Communication Products that are lost, damaged or
otherwise rendered inoperable due to the Client's negligent, reckless or
intentional misuse, or due to reasons beyond the Custodian's control, shall be
repaired or
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replaced at the Client's expense. Communication Product repairs shall only be
performed by the Custodian or a party authorized by the Custodian to perform
such repairs.
6. Fees; Taxes. The Client agrees to pay the Custodian license fees and such
other fees as the parties hereto may agree upon in writing from time to time
in connection with obtaining the Communication Products. The Client agrees to
reimburse the Custodian for, or shall pay directly to the relevant taxing
authorities, any sales, use, value-added, excise or other taxes, other than
taxes based on the Custodian's net income, incurred by the Custodian or which
may in the future be incurred by the Custodian as a result of this License or
on or measured by the prices and other charges of the Communication Products
furnished for the Client's use, however designated, levied or based, whenever
the Custodian has paid or shall be liable to pay or collect any such tax from
the Client pursuant to applicable law, as interpreted by the departmental
authorities of the taxing unit.
7. Warranty. The Custodian warrants that, for a period of 30 days after
delivery of a Communication Product to the Client such Communication Product
will perform substantially in accordance with the then current specifications
therefor as set forth in the Documentation. If a Communication Product fails
to meet the foregoing warranty and the Client gives the Custodian written
notice thereof during the applicable warranty period, the Custodian's sole
obligation shall be to provide technical services to attempt to correct the
failure, provided that (i) the Client gives the Custodian detailed information
regarding such failure and the Custodian is able to duplicate same and (ii)
the Communication Product has not been used in an unauthorized manner or
otherwise misused or abused. The Client acknowledges that the Communication
Products are complex, may not be error free, and that all errors, if any, may
not be correctable or avoidable. Except and to the extent expressly provided
above, and in lieu of all other warranties, the Communication Products are
provided "as is", all warranties and representations of any kind with regard
to the Communication Products are hereby disclaimed, including any implied
warranties of merchantability or fitness for a particular purpose.
8. Infringement. The Custodian shall defend or settle, at its own expense, any
cause of action or proceeding brought against the Client which is based on a
claim that the use of a Communication Product infringes any patent, copyright,
trade secret or other proprietary right. The Custodian shall indemnify and
hold the Client harmless against any final judgment that may be awarded by a
court of competent jurisdiction against the Client as a result of the
foregoing. The Custodian's obligations hereunder are conditioned upon its
receiving from the Client (i) prompt written notice of each such claim, (ii)
reasonable cooperation and information in Client's possession and (iii) the
right to control and direct the investigation, defense and settlement of each
such claim. If a claim is made that a Communication Product infringes any
patent, copyright, trade secret or other proprietary right, the Custodian may,
in the Custodian's sole discretion, either procure for the Client the right to
continue using such Communication Product, modify it to make its use
noninfhnging, or replace it with a noninfringing product; provided that if
none of the foregoing is reasonably available to the Custodian, the Custodian
may terminate the license granted herein and require the Client to return all
copies of the relevant Communication Product. Notwithstanding the foregoing,
the Custodian shall not be liable to the Client pursuant to this Section if a
claim is based on (i) a combination of a Communication Product with data or
other software or devices not supplied by the Custodian, (ii) modifications to
a Communication Product not made by the Custodian or (iii) use of a
Communication Product in an unauthorized manner.
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9. Related Services. These terms and conditions and the Documentation are
intended to define the rights and obligations of the Client with respect to
Communication Products used by the Client in connection with all services (e.g.,
custody, funds transfers, foreign exchange etc.) offered by Xxxxxx Guaranty
Trust Company of New York and its affiliates to the Client. The provisions of
this Agreement and any documents relating to other services offered by Xxxxxx
Guaranty Trust Company of New York and its affiliates may supplement these terms
and conditions but in the event of any inconsistency between this Agreement or
such other documents and these terms and conditions, these terms and conditions
shall prevail.
10. Intraday Reports. The Client acknowledges that intraday reports received by
the Client by means of any Communication Product may contain information that is
subject to correction, and that corrections of such information will routinely
occur without notice to the Client. The Client understands that intraday reports
are provided for informational purposes only and are not to be relied upon for
purposes of final reconciliations or otherwise. Neither Xxxxxx Guaranty Trust
Company of New York nor any affiliate or subsidiary of Xxxxxx Guaranty Trust
Company of New York that provides data with respect to intraday reports makes
any representation or warranty that such reports are accurate or complete.
Rev. 9/28/93 2.CUS
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