[GRAPHIC APPEARS HERE]
Exhibit 23(g)(1)(a)
GLOBAL CUSTODIAL SERVICES
AGREEMENT
i NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
Exhibit 23(g)(1)(a)
TABLE OF CONTENTS
1. DEFINITIONS 1
2. APPOINTMENT OF CUSTODIAN 2
3. PROPERTY ACCEPTED 3
4. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS 3
5. INSTRUCTIONS 4
6. PERFORMANCE BY THE CUSTODIAN 5
7. POOLING, REGISTRATION AND OTHER ACTION 6
8. CUSTODY CASH ACCOUNT PAYMENTS 7
9. ASSURED INCOME PAYMENT SERVICE 7
10. WITHDRAWAL AND DELIVERY 8
11. ACCESS AND RECORDS 8
12. USE OF AGENTS 9
13. CITIGROUP ORGANIZATION INVOLVEMENT 9
14. SCOPE OF RESPONSIBILITY 9
15. LITIGATION; INDEMNITY 11
16. XXXX 00
00. FEES AND EXPENSES 12
18. TAX STATUS/WITHHOLDING TAXES 12
19. TERMINATION 13
20. ASSIGNMENT 13
21. JOINT AND SEVERAL LIABILITY 13
22. DISCLOSURE 13
23. NOTICES 14
24. GOVERNING LAW AND JURISDICTION 14
25. MISCELLANEOUS 14
ii NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
THIS GLOBAL CUSTODIAL SERVICES AGREEMENT is made on the __ day of ______, 2007,
by and between LINCOLN VARIABLE INSURANCE PRODUCTS TRUST, on behalf of its
series listed on Schedule A, a Delaware statutory trust (the "Client"), having
its principal place of business at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxx Xxxxx, XX
00000, and CITIBANK, N.A., acting as a custodian hereunder through its office
located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Custodian").
1. DEFINITIONS
"Agreement" means this Global Custodial Services Agreement, as amended from
time to time, and any other terms and conditions agreed upon by the Client and
the Custodian in writing from time to time in connection with this Agreement.
"Assured Income Payment Service" means the Custodian's services in which
interest, dividends or other such periodic income, to which the Client is
entitled, on Securities specified by the Custodian from time to time at its
absolute discretion, are credited to the Custody Cash Account in respect of
such Securities.
"Assured Income Payment Standards" means the terms and conditions governing
the Assured Income Payment Service, as such terms and conditions are amended
and/or supplemented from time to time by, and at the absolute discretion of,
the Custodian.
"Assured Payment" means, in relation to those Securities specified by the
Custodian under the Assured Income Payment Service, an amount equal to the
interest, dividends or periodic income that is due to the Client in respect of
such Securities less any taxes, duties, levies, charges or any other
withholding payments payable in respect of such interest, dividends or periodic
income.
"Assured Payment Date" means, in relation to the payment of any interest,
dividend or periodic income of any particular Securities specified by the
Custodian under the Assured Income Payment Service, the date on which such
interest, dividend or periodic income is normally payable in respect of such
Securities or such other date as may be notified by the Custodian to the Client
from time to time.
"Authorized Person" means (i) any person who has been authorized by the
Client, by notice in writing to the Custodian, to act on its behalf in the
performance of any act, discretion or duty under this Agreement, or (ii) any
other person holding a duly executed power of attorney from the Client which is
in a form acceptable to the Custodian (including, for avoidance of doubt, any
officer or employee of such agent or person).
"Branch" means any branch or office of Citibank, N.A.
"Citigroup Organization" means Citigroup and any company of which Citigroup
is, now or hereafter, directly or indirectly a shareholder or owner. For the
purposes of this Agreement, each Branch shall be deemed to be a separate member
of the Citigroup Organization.
"Clearance System" means The Federal Reserve Bank of New York, The
Depository Trust Company, Participants Trust Company, Cedel Bank, S.A., the
Euroclear System operated by Xxxxxx Guaranty Trust Company of New York, the
CREST system operated by CREST CO. Limited, the Central Money Markets Office,
the Central Gilts Office and such other clearing agency, settlement system or
depository as may from time to time be used in connection with transactions
relating to Securities, and any nominee, clearing agency, or depository for any
of the foregoing.
"Custody Account" means the custody account or accounts in the name of the
Client and/or such other name as the Client may reasonably designate, for the
deposit of any Property (other than cash) from time to time received by the
Custodian for the account of the Client.
1 NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
"Custody Cash Account" means the cash account or accounts, which, at the
discretion of the Client, may be either a subaccount(s) of the Custody Account
or a demand deposit account(s), in the name of the Client and/or such other
name as the Client may reasonably designate, for the deposit of cash in any
currency received by the Custodian from time to time for the account of the
Client, whether by way of deposit or arising out of or in connection with any
Property in the Custody Account.
"Fee Agreement" means the agreement between the Custodian and the Client
setting forth the fees, costs and expenses to be paid by the Client to the
Custodian in connection with the custodial services provided pursuant to this
Agreement, as such fee agreement may be amended at the Custodian's reasonable
discretion from time to time by prior written notice to the Client.
"Instructions" means any and all instructions received by the Custodian from
any Authorized Person, including any instructions communicated through any
manual or electronic medium or system agreed between the Client and the
Custodian as provided in this Agreement.
"person" means any person, firm, company, corporation, government, state or
agency of a state, or any association or partnership (whether or not having
separate legal personality) of two or more of the foregoing.
"Property" means, as the context requires, all or any part of any
Securities, cash, or any other property from time to time held for the Client
under the terms of this Agreement.
"Rules" means any rules and regulations (whether of a local regulatory
authority, stock exchange or other entity) in any jurisdiction with which the
Custodian may from time to time be required to comply in the provision of its
services hereunder.
"Securities" means bonds, debentures, notes, stocks, shares, securities or
other financial assets acceptable to the Custodian and all moneys, rights or
property which may at any time accrue or be offered (whether by way of bonus,
redemption, preference, option or otherwise) in respect of any of the foregoing
and any certificates, receipts, warrants or other instruments (whether in
registered or unregistered form) representing rights to receive, purchase or
subscribe for any of the foregoing or evidencing or representing any other
rights or interests therein (including, without limitation, any of the
foregoing not constituted, evidenced or represented by a certificate or other
document but by an entry in the books or other permanent records of the issuer,
a trustee or other fiduciary thereof, a Clearance System or other person).
"Service Standards" means any written service standards governing the day to
day operations of the custodial services which may be provided to the Client or
modified by the Custodian by notice to the Client from time to time.
"Subcustodian" means a subcustodian (other than a Clearance System)
appointed by the Custodian for the safe-keeping, administration, clearance and
settlement of Securities.
"Taxes" means all taxes, levies, imposts, charges, assessments, deductions,
withholdings and related liabilities, including additions to tax, penalties and
interest imposed on or in respect of the Property, the transactions effected
under this Agreement or the Client; PROVIDED THAT Taxes does not include income
or franchise taxes imposed on or measured by the net income of the Custodian or
its agents.
2. APPOINTMENT OF CUSTODIAN
(A) The Client hereby appoints the Custodian to act as its custodian in
accordance with the terms hereof and authorizes the Custodian to establish on
its books, on the terms of this Agreement, the Custody Account, to be
designated to show that the Securities belong to the Client and are segregated
from the Custodian's assets and the Client Cash Account.
2 NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
(B) Subject to the express terms of this Agreement, the Client understands and
agrees that the obligations and duties hereunder of the Custodian shall be
performed only by the Custodian or its agents, and shall not be deemed
obligations or duties of any other member of the Citigroup Organization. The
Client agrees that the Custodian may register or record legal title to any
Securities in the name of a nominee company or a Subcustodian in the Citigroup
Organization and may appoint a member of the Citigroup Organization to be a
Subcustodian.
(C) The Client agrees to take any such action which may be necessary and to
execute further documents and provide such materials and information as may be
reasonably requested by the Custodian to enable the Custodian to perform the
duties and obligations under this Agreement, including participation in any
relevant Clearance System, and will notify the Custodian as soon as it becomes
aware of any inaccuracy in such materials or information.
(D) All custody services by the Custodian hereunder shall be provided in
accordance with the Service Standards, a copy of which the Custodian may supply
to the Client from time to time. In the event of any conflict between any term
of this Global Custodial Services Agreement and any term of the Service
Standards, the Global Custodial Services Agreement shall prevail with respect
to such term.
(E) The Client agrees to comply with any relevant security procedures relating
to the provision of custody services under this Agreement which may be
specified by the Custodian or imposed on the Client by any relevant Clearance
System.
3. PROPERTY ACCEPTED
(A) Subject to Section 3(C) below, the Custodian agrees to accept for custody
in the Custody Account any Securities which are capable of deposit under the
terms of this Agreement.
(B) Subject to Section 3(C) below, the Custodian agrees to accept for deposit
in the Client Cash Account, cash in any currency (which shall, if necessary, be
credited by the Custodian to different accounts in the currencies concerned),
such cash to be owed to the Client by the Custodian as banker.
(C) The Custodian may in its reasonable discretion refuse to accept (in whole
or in part) any proposed deposit in either the Custody Account or the Custody
Cash Account if the Custodian reasonably believes that the acceptance of such
deposit would violate any law, rule, regulation, practice or policy to which
the Custodian is subject.
4. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
(A)The Client hereby represents, warrants and undertakes to the Custodian that:
(i)it is duly organized and validly existing under the laws of the
jurisdiction of its organization;
(ii)during the term of this Agreement it has and will continue to have, or
will take all action necessary to obtain, full capacity and authority to
enter into this Agreement and to carry out the transactions contemplated
herein, and has taken and will continue to take all action (including,
without limitation, the obtaining of all necessary governmental consents
in any applicable jurisdiction) to authorize the execution, delivery and
performance of obligations of this Agreement;
(iii)it will not assert any interest in Property held by the Custodian in any
Clearance System in any way which could prevent a transfer of title to a
unit of such Property by the Custodian (or by any other person) where
such transfer is required by the Clearance System;
3 NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
(iv)this Agreement is legal, valid and binding on the Client;
(v)on or prior to the execution of this Agreement, the Client has provided
to the Custodian certified true copies of evidence of the due
authorization for the execution, delivery and performance of this
Agreement;
(vi)except as provided in Clause 16 of this Agreement, all Property
deposited with the Custodian shall, at all times, be free from all
charges, mortgages, pledges or other such encumbrances; and
(vii)the Client shall, at all times, be entitled or otherwise duly authorized
to deal with, and dispose of, all or any part of the Property, whether
through a relevant Clearance System or otherwise.
The Client agrees to inform the Custodian promptly if any statement set forth
in this Section 4(A) ceases to be true and correct as of any date after the
date hereof.
(B)The Custodian hereby represents, warrants and undertakes to the Client that:
(i)it is duly organized and validly existing under the laws of the
jurisdiction of its organization;
(ii)during the term of this Agreement it has and will continue to have, or
will take all action necessary to obtain, full capacity and authority to
enter into this Agreement and to carry out the transactions contemplated
herein, and has taken and will continue to take all action (including,
without limitation, the obtaining of all necessary governmental consents
in any applicable jurisdiction) to authorize the execution, delivery and
performance of this Agreement; and
(iii)this Agreement is legal, valid and binding on the Custodian.
The Custodian agrees to inform the Client promptly if any statement set forth
in this Section 4(B) ceases to be true and correct as of any date after the
date hereof.
5. INSTRUCTIONS
(A)Authority. The Custodian is entitled to rely conclusively upon the authority
of any Authorized Person to give Instructions until the Custodian has
received notice acceptable to it of any change from the Client and has had a
reasonable time to act (after which time it may rely on the change).
(B)Communications. The Custodian is authorized to rely conclusively upon any
Instructions received by any means, provided that the Custodian and the
Client have agreed upon the means of transmission and the method of
identification for the Instructions. In furtherance of the foregoing:
(i)Each of the Client and the Custodian will comply with certain agreed
security procedures (the "Procedures"), designed to verify the
origination of Instructions.
(ii)The Custodian is not obligated to do anything other than what is
contained in the Procedures to establish the authority or identify of
the person sending an Instruction. The Custodian is not responsible for
errors or omissions made by the Client or resulting from fraud or the
duplication of any Instruction by the Client, and the Custodian may act
on any Instruction by reference to account number only, even if any
account name is provided. The Custodian may act on an Instruction if it
reasonably believes it contains sufficient information.
4 NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
(iii)The Custodian may decide not to act on an Instruction where it
reasonably doubts its contents, authorization, origination or compliance
with the Procedures and will promptly notify the Client of its decision.
(iv)If the Client informs the Custodian that it wishes to recall, cancel or
amend an Instruction, the Custodian will use its reasonable efforts to
comply.
(v)If the Custodian acts on any Instruction sent by any means requiring
manual intervention (such as telephone, telex, electronic mail or disks
sent by messenger) then, if the Custodian complies with the Procedures,
the Client will be responsible for any loss the Custodian may incur in
connection with that Instruction. The Client expressly acknowledges that
the Client is aware that the use of manual forms of communication to
convey Instructions increases the risk of error, security and privacy
issues and fraudulent activities.
(vi)Instructions are to be given in the English language.
6. PERFORMANCE BY THE CUSTODIAN
(A) Custodial duties not requiring further Instructions. In the absence of
contrary Instructions, the Custodian is authorized by the Client to, and where
applicable, the Custodian shall, carry out the following actions in relation to
the Property:
(i)except as otherwise provided in this Agreement, separately identify the
Property on its records as being held for the account of the Client and
segregate all Property held on behalf of the Client by the Custodian
from the assets of the Custodian;
(ii)sign any affidavits, certificates of ownership or other certificates
relating to the Property which may be required by any tax or regulatory
authority or under the laws of any relevant jurisdiction, whether
governmental or otherwise, and whether relating to ownership, or income,
capital gains or other tax, duty or levy (and the Client further agrees
to ratify and to confirm or to do, or to procure the doing of, such
things as may be necessary or appropriate to complete or evidence the
Custodian's actions under this Section 6(A)(ii) or otherwise under the
terms of this Agreement);
(iii)collect and receive, for the account of the Client, all income, payments
and distributions in respect of the Property, and credit the same to the
Custody Cash Account;
(iv)take any action which is necessary and proper in connection with the
receipt of income, payments and distributions as are referred to in
Section 6(A)(iii) above, including, without limitation, the presentation
of coupons and other interest items;
(v)collect, receive and hold for the account of the Client any capital
arising out of or in connection with the Property whether as a result of
it being called or redeemed or otherwise becoming payable and credit the
same to the Custody Cash Account;
(vi)take any action which is necessary and proper in connection with the
receipt of any capital as is referred to in Section 6(A)(v) above,
including, without limitation, the presentation for payment of any
Property which becomes payable as a result of its being called or
redeemed or otherwise becoming payable and the endorsement for
collection of checks, drafts and other negotiable instruments;
5 NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
(vii)take any action which is necessary and proper to enable the Custodian to
provide services to the Client within, and to observe and perform its
obligations in respect of, any relevant Clearance System;
(viii)receive and hold for the account of the Client all Securities received
by the Custodian as a result of a stock dividend, share sub-division or
reorganization, capitalization of reserves or otherwise;
(ix)exchange interim or temporary receipts for definitive certificates, and
old or overstamped certificates for new certificates and hold such
definitive and/or new certificates in the Custody Account;
(x)make cash disbursements for any expenses incurred in handling the
Property and for similar items in connection with the Custodian's duties
under this Agreement in accordance with the Fee Agreement, and debit the
same to the Client Cash Account or any other account of the Client with
the Custodian; and
(xi)deliver to the Client transaction advices and/or regular statements of
account showing the Property held at such intervals as may be agreed
between the parties hereto but subject always to applicable Rules.
(B) Custodial duties requiring Instructions. The Custodian is authorized by the
Client to, and where applicable, the Custodian shall, carry out the following
actions in relation to the Property only upon receipt of and in accordance with
specific Instructions:
(i)make payment for and receive Property, or deliver or dispose of Property;
(ii)(subject to Section 7(D)) deal with subscription, rights, bonus or scrip
issues, conversions, options, warrants and other similar interests or
any other discretionary right in connection with the Property; and
(iii)subject to the agreement of the Custodian, to carry out any action other
than those mentioned in Section 6(A) above.
7. POOLING, REGISTRATION AND OTHER ACTION
(A) Subject to applicable laws, rules and regulations, any Property may be
pooled with other property of the Custodian's customers, like with like, and
the Client is beneficially entitled to such portion of the property that has
been pooled as shall correspond to the Property deposited with the Custodian by
the Client (as increased or diminished by subsequent sales or purchases from
time to time). The Custodian will maintain adequate records identifying the
Property as belonging to the Client or as held by a third party for the benefit
of the Client.
(B) The Client understands and agrees that, except as may be specified in the
Service Standards, Property shall be registered as the Custodian may direct
either in the name of the Custodian, Subcustodian or Clearance System, or
nominee of any of them, in the jurisdiction where the Property is required to
be registered or otherwise held. Where commercially practicable, the Custodian
will arrange on written request by the Client for the registration of Property
with the issuer or its agent in the name of the Client or its nominee.
(C) The Custodian shall, to the extent reasonably possible, notify, make
available or deliver to the Client, in a timely manner, all official notices,
circulars, reports and announcements that are received by the Custodian in such
capacity concerning the Securities held on the Client's behalf that require
discretionary action.
6 NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
(D) The Custodian shall provide proxy services to the Client only where there
is a separate agreement in relation to proxy services between the Custodian and
the Client.
(E) Upon receipt of each transaction advice and/or statement of account, the
Client shall examine the same and notify the Custodian within sixty (60) days
of the date of any such advice or statement of any discrepancy between
Instructions given and the situation shown in the transaction advice and/or
statement, and/or of any other errors therein. In the event that the Client
does not inform the Custodian in writing of any exceptions or objections within
sixty (60) days after the date of such transaction advice and/or statement, the
Client shall be deemed to have approved such transaction advice and/or
statement.
8. CUSTODY CASH ACCOUNT PAYMENTS
(A) Except as otherwise provided herein, the Custodian shall make, or cause its
agents to make, payments of cash credited to the Custody Cash Account:
(i)in connection with the purchase of Property (other than cash) for the
account of the Client in accordance with Instructions;
(ii)in payment for the account of the Client of (A) all Taxes, claims,
liabilities, fees, costs and expenses incurred by the Custodian or its
agents under or in connection with the terms of this Agreement, and
(B) all amounts owed to the Custodian pursuant to the Fee Agreement;
(iii)for payments to be made in connection with the conversion, exchange or
surrender of Property held in the Custody Account;
(iv)pursuant to assured payment obligations incurred in the capacity of
settlement bank on behalf of the Client within a relevant Clearance
System;
(v)for other purposes as may be specified by the Client in its
Instructions; or
(vi)upon the termination of this Agreement on the terms hereof;
PROVIDED THAT, unless otherwise agreed, the payments referred to above shall
not exceed the funds available in the Custody Cash Account at any time. The
Client shall promptly reimburse the Custodian for any advance of cash or any
such taxes, charges, expenses, assessments, claims or liabilities upon request
for payment. Notwithstanding the foregoing, nothing in this Agreement shall
obligate the Custodian to extend credit, grant financial accommodation or
otherwise advance moneys to the Client or assume financial risk on behalf of
the Client for the purpose of meeting any such payments or otherwise carrying
out any Instructions.
(B) Unless otherwise provided herein, the proceeds from the sale or exchange of
Property will be credited to the Custody Cash Account on the date the proceeds
are actually received by the Custodian.
9. ASSURED INCOME PAYMENT SERVICE
(A) The Custodian may, at its absolute discretion, offer the Client an Assured
Income Payment Service in respect of specific Securities, as may be notified by
the Custodian to the Client from time to time. In relation to any such
Securities, the Custodian may, at its absolute discretion, cause the Custody
Cash Account to be credited with an Assured Payment on the Assured Payment Date
relevant thereto; PROVIDED THAT the Custodian shall be entitled
7 NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
to reverse any credit (in whole or in part) made in respect of that Assured
Payment if the Custodian fails to receive the full amount corresponding to such
Assured Payment within a reasonable time, as determined by the Custodian in its
absolute discretion, after the relevant Assured Payment Date, for any reason
whatsoever other than as a result of the negligence or willful default of the
Custodian.
The Assured Income Payment Service shall be provided by the Custodian in
accordance with the Assured Income Payment Standards.
(B)Where the Custodian acts as a settlement bank in any relevant Clearance
System:
(i)upon the Custodian incurring any assured payment obligation, the Client
shall reimburse the Custodian for such amount, and the Custodian may
debit the Client Cash Account with such amount;
(ii)the Custodian may without notice set, revise or disable debit caps in
respect of the maximum aggregate amount of assured payment obligations
it will incur on behalf of the Client; and
(iii)if another settlement bank in such Clearance System defaults on an
assured payment obligation owed to the Custodian wholly or partially,
the Custodian has no liability to make good the loss and will, where
appropriate, attribute the loss pro rata between all Clients on whose
behalf such payment should have been received by the Custodian.
10.WITHDRAWAL AND DELIVERY
Subject to the terms of this Agreement, the Client may at any time demand
withdrawal of all or any part of the Property in the Custody Account and/or the
Custody Cash Account. Delivery of any Property will be made without undue delay
at the expense of the Client at such location as the Client instructs; PROVIDED
THAT if the Custodian has effected any transaction on behalf of the Client the
settlement of which is likely to occur after a withdrawal pursuant to this
Section 10, then the Custodian shall be entitled in its absolute discretion to
close out or complete such transaction and to retain sufficient funds from the
Property for that purpose.
11.ACCESS AND RECORDS
(A) Access to the Custodian's Records. Except as otherwise provided in this
Agreement, during the Custodian's regular business hours and upon receipt of
reasonable notice from the Client, any Authorized Person or officer of the
Client, any independent public accountant(s) selected by the Client and any
person designated by any regulatory authority having jurisdiction over the
Client shall be entitled to examine on the Custodian's premises Property held
by the Custodian and the Custodian's records regarding Property deposited with
entities authorized to hold Property in accordance with Section 12 hereof, but
only upon the Client's furnishing the Custodian with Instructions to that
effect; PROVIDED THAT such examination shall be consistent with the Custodian's
obligations of confidentiality to other parties. The Custodian's reasonable
costs and expenses in facilitating such examinations, including but not limited
to the cost to the Custodian of providing personnel in connection with
examinations, shall be borne by the Client, provided that such costs and
expenses shall not be deemed to include the Custodian's costs in providing to
the Client: (i) the "single audit report" of the independent certified public
accountants engaged by the Custodian and (ii) such reports and documents as
this Agreement contemplates that the Custodian shall furnish routinely to the
Client.
(B) Access to Third Party Records. The Custodian shall also, subject to
restrictions under applicable laws and regulations, seek to obtain from any
entity with which the Custodian maintains the physical possession or book-entry
record of any of the Property in the Custody Account or the Custody Cash
Account such records as may be required by the Client or its agents.
8 NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
12.USE OF AGENTS
(A) The Custodian is authorized subject to any relevant Rules, to appoint
agents (each an "agent", which term includes, without limitation, service
providers and Subcustodians, but not Clearance Systems, and which agents may be
a member or members of the Citigroup Organization) and to participate in
Clearance Systems, whether in its own name or that of the Client, and whether
by participation as a member, sponsor or settlement bank within the Clearance
System, to perform any of the duties of the Custodian under this Agreement. The
Custodian may delegate to any such agent or Clearance System any of its
functions under this Agreement, including, without limitation, the collection
of any payment or payments, whether of an income or a capital nature, due on
the Property.
(B) In the selection and use of such agents and participation in such Clearance
Systems, the Custodian shall comply with any relevant Rules, and shall be
responsible only for the negligence in the selection of such agents and
Clearance Systems but shall otherwise have no responsibility for the
performance by such agents or Clearance System of any of the duties delegated
to them under this Agreement; notwithstanding the foregoing, the Custodian
shall be responsible for the negligence, fraud or willful default of any
Subcustodian that is a Branch or subsidiary of Citibank, N.A., and shall have
the same level of responsibility to the Client for any nominee company
controlled by the Custodian or by any of the Custodian's affiliated companies
as the Custodian has for itself.
(C) Subject to any relevant Rules and regulations, the Property may be
deposited with any Subcustodian deemed appropriate by the Custodian or in any
Clearance System deemed appropriate by the Custodian or a Subcustodian, as the
case may be. Property held in any Clearance System shall be subject to the
rules or operating procedures of such Clearance System, including rules
regarding supervision or termination of membership of such Clearance System,
and such further information provided by the Custodian to the Client, or
acknowledgments or agreements which may be required from the Client, for the
purposes of this Section 12(C) in connection with use of a Clearance System
from time to time. The Custodian will direct each Subcustodian and Clearance
System to separately identify on its books Securities held by it pursuant to
this Agreement as being held for the account of the Custodian's customers. The
Custodian will direct each Subcustodian and Clearance System to segregate any
such Securities held by such entity from the assets of the Custodian and such
entity.
The Client is hereby advised that, where the Custodian arranges for any
Property to be held overseas, there may be different settlement, legal and
regulatory requirements in overseas jurisdictions from those applying in the
United States, together with different practices for the separate
identification of the Client's Property.
13.CITIGROUP ORGANIZATION INVOLVEMENT
The Client agrees and understands that any member of the Citigroup Organization
can engage as principal or otherwise in any transaction effected by the Client
or by any person for its account and benefit, or by or on behalf of any
counterparty or issuer. When instructed to buy or sell any Security, effect any
foreign exchange transaction or effect other transactions, the Custodian is
entitled to effect any transaction by or with itself or any member of the
Citigroup Organization and to pay or keep any fee, commissions or compensation
as specified in the Client's Instruction or, if no specification is provided,
any charges, fees, commissions or similar payments generally in effect from
time to time with regard to such or similar transactions.
14.SCOPE OF RESPONSIBILITY
(A) Subject to the terms hereof, the Custodian shall use all reasonable care in
the performance of its duties under this Agreement and will exercise the due
care of a professional custodian for hire with respect to the Property in its
possession or control. The Custodian shall not be responsible for any loss or
damage suffered by the Client as a result of the Custodian performing such
duties unless the same results from an act of fraud, negligence or willful
default on the part of the Custodian and as provided in Section 12(B) hereof;
in which event the liability of the Custodian in connection with any Property
shall equal the market value of the Property, to which such loss or damage
relates, at the time of such fraud, negligence or willful default plus interest
at the rate applicable to the base
9 NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
currency of the Custody Cash Account accruing from the date of such fraud,
negligence or willful default until the date of discharge. Notwithstanding the
foregoing, in no event shall the Custodian be liable to the Client for
indirect, special or consequential damages, even if advised of the possibility
of such damages.
(B) The Custodian is not obliged to maintain any insurance on the Property held
under the terms of this Agreement.
(C) Neither the Custodian nor any member of the Citigroup Organization shall be
responsible for any loss or damage, or failure to comply or delay in complying
with any duty or obligation, under or pursuant to this Agreement arising as a
direct or indirect result of any reason, cause or contingency beyond its
reasonable control, including (without limitation) natural disasters,
nationalization, currency restrictions, act of war, act of terrorism, act of
God, postal or other strikes or industrial actions, or the failure, suspension
or disruption of any relevant stock exchange, Clearance System or market.
(D) Subject to Section 14(A) above, the Custodian shall not be liable for any
loss resulting from, or caused by, the collection of any Property and/or any
funds or other property paid or distributed in respect of the Property.
(E) The Custodian does not warrant or guarantee the authenticity or validity of
any Security or other Property received by the Custodian, or any other entity
authorized to hold Property under this Agreement. If the Custodian becomes
aware of any defect in title or forgery of any Property, the Custodian shall
promptly notify the Client.
(F) The Client shall be responsible for all filings, tax returns and reports on
any transactions undertaken pursuant to this Agreement, or in respect of the
Property or collections relating to the Property as may be requested by any
relevant authority, whether governmental or otherwise, and for the payment of
all unpaid calls, Taxes (including without limitation any value added tax),
imposts, levies or duties due on or with respect to any principal, interest or
other collections, or any other liability or payment arising out of or in
connection with the Property, and in so far as the Custodian is under any
obligation (whether of a governmental nature or otherwise) to pay the same on
behalf of the Client it may do so out of any Property held by the Custodian
pursuant to the terms of this Agreement.
(G) The Custodian is not acting under this Agreement as an investment manager,
nor as an investment, legal or tax adviser to the Client and the Custodian's
duty is solely to act as a custodian in accordance with the terms of this
Agreement.
(H) Nothing herein shall obligate the Custodian to perform any obligation or to
allow, take or omit taking any action which will breach any relevant Rules, or
any law, rule, regulation or practice of any relevant government, stock
exchange, Clearance System, self-regulatory organization or market.
(I) The Custodian may at any time suspend or terminate its participation and
holding of assets in a Clearance System, and will give reasonable notice to the
Client of any such action. In such case, or in the event of suspension as
contemplated in Section 14(C) above, the Custodian may arrange for the relevant
Securities to be held in certificated form.
(J) Except as provided in Section 12 of this Agreement, the Custodian shall not
be responsible for the acts or omissions, default or insolvency of any broker,
counterparty, issuer of Securities, Subcustodian, agent or Clearance System.
(K) The Custodian shall not be responsible for the accuracy, content or
translation of any notice, circular, report, announcement or other material
forwarded to the Client which was not prepared by the Custodian or its agent(s).
(L) The Custodian shall only have such duties and responsibilities as are
specifically set forth or referred to in this Agreement, and no covenant or
obligation shall be implied in this Agreement against the Custodian.
10 NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
15.LITIGATION; INDEMNITY
(A) The Custodian or any of its agents, as the case may be, may (but without
being under any duty or obligation to), with prior Client consent to the extent
reasonably practicable, institute or defend legal proceedings, or take any
other action arising out of or in connection with the Property and the Client
shall indemnify the Custodian or agent against any costs and expenses,
including without limitation any reasonable attorneys' fees and disbursements,
arising from such proceedings or other action and make available to the
Custodian such security in respect of such costs and expenses as the Custodian
or agent in its absolute discretion deems necessary or appropriate. The
Custodian shall as soon as practicable notifiy the Client of such legal
proceedings or other similar actions arising out of or in connection with the
Property.
(B) In the event the Custodian does not institute or defend legal proceedings,
or take any other action arising out of or in connection with the Property, the
Custodian hereby agrees that the Client shall, to the extent of any loss of the
Client's interest in the Property and to the extent permitted by applicable law
and not prohibited by contract, be subrogated to all of the rights of recovery
of the Custodian therefor against any third party person or entity; PROVIDED
THAT nothing herein shall be interpreted as granting the Client any rights to
bring any direct action under any insurance policy issued in favor of the
Custodian or as limiting the Custodian's right to bring any action against any
such third party for any damages suffered by the Custodian. Notwithstanding any
other provision hereof, in no event shall the Custodian be obliged to bring
suit in its own name or be obliged to allow suit to be brought in its name.
Subject to the terms of this Section 15(B) and to the extent permitted by law,
the Custodian shall execute and deliver any and all such instruments and
documents which the Client may reasonably request and take such other actions
as reasonably necessary or appropriate to assist the Client in the exercise of
such rights of recovery and to enable the Client to recover against any and all
such third party persons or entities. The Client shall reimburse the Custodian
for any reasonable out-of-pocket costs incurred in connection with the actions
contemplated by this Section 15(B).
(C) Indemnity to the Custodian. The Client agrees to indemnify the Custodian
and to defend and hold the Custodian harmless from all losses, costs, damages
and expenses (including reasonable legal fees) and liabilities for any claims,
demands or actions (each referred to as a "Loss"), incurred by the Custodian in
rendering services as provided in this Agreement or in connection with breach
of this Agreement by the Client, except any Loss that results from the
Custodian's failure to exercise the standard of care required by Section 14(A)
hereof. In no event will the Custodian be indemnified for Loss resulting from
the Custodian's negligence, willful misconduct or fraud.
(D) Clients' Direct Liability. The disclosure by the Client to the Custodian
that the Client has entered into this Agreement as the agent or representative
of another person shall not relieve the Client of any of its obligations under
this Agreement.
(E) The Custodian shall give notice of any Loss in respect of which the Client
is obliged to provide indemnification pursuant to this Agreement. Such notice
shall describe the Loss in reasonable detail, and shall indicate the amount
(estimated, if necessary, and to the extent feasible) of the Loss that has been
or may be suffered by Custodian.
16.LIEN AND SET-OFF
(A) In addition to any remedies available to the Custodian under applicable
law, the Custodian shall have, and the Client hereby grants, a lien on the
Property in the Custody Account to secure payment of fees and expenses for the
services rendered under this Agreement and any credit exposures including those
resulting from securities purchases or funds transfers. Notwithstanding
anything to the contrary in this Agreement and to the extent
11 NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
applicable, no liabilities or obligations the Client has arising out of or
constituting Purpose Credit shall be secured by, and the Custodian shall have
no lien upon, any Margin Stock, and any such lien or security interest being
hereby expressly disclaimed by the Custodian. "Purpose Credit" and "Margin
Stock", shall have the same meaning set forth in Regulation U and X of the
Board of Governors of the Federal Reserve System of the United States of
America.
(B) In addition to any other remedies available to the Custodian under
applicable law, the Custodian may, without prior notice to the Client, set off
any payment obligation owed to it by the Client against any payment obligation
(whether or not matured) owed by it to the Client regardless of the place of
payment or currency of either obligation (and for such purposes may make any
currency conversion necessary). If any obligation is unliquidated or
unascertained the Custodian may set off only an amount that is agreed to by the
Client.
17.FEES AND EXPENSES
Without prejudice to any of its liabilities and obligations under this
Agreement, the Client agrees to pay to the Custodian from time to time such
fees and commissions for its services pursuant to this Agreement as determined
in accordance with the terms of the Fee Agreement, together with any applicable
taxes or levies, including, without limitation, all those items referred to in
Section 8(ii) hereof. The Custodian is further authorized to debit (as well
after as before the date of any termination pursuant to Section 19 hereof) any
account of the Client with the Custodian, including, without limitation, the
Custody Cash Account, for any amount owing to the Custodian from time to time
under this Agreement. However, once notice of termination has been given
pursuant to Section 19, the Custodian shall provide written notice and receive
consent from the Client prior to debiting the Client's account.
00.XXX STATUS/WITHHOLDING TAXES
(A) The Client will provide the Custodian with information as to its tax status
as reasonably requested by the Custodian from time to time.
(B) The Client may be required from time to time to file such proof of taxpayer
status or residence, to execute such certificates and to make such
representations and warranties, or to provide any other information or
documents in respect of the Property, as the Custodian or any of its agents may
deem necessary or proper to fulfill the obligations of the Custodian or its
agents under applicable law. The Client shall provide the Custodian or its
agents, as appropriate with copies, or originals if necessary and appropriate,
of any such proofs of residence, taxpayer status or identity, beneficial
ownership of Property and any other information or documents which the
Custodian or its agents may reasonably request.
(C) If any Taxes shall become payable with respect to any payment due to the
Client, such Taxes may be withheld from such payment in accordance with
applicable law. The Custodian and any agents may withhold any interest, any
dividends or other distributions or securities receivable in respect of
Securities, proceeds from the sale or distribution of Securities ("Payments"),
and may apply such Payment and/or cash from the Custody Cash Account in
satisfaction of such Taxes, the Client remaining liable for any deficiency. If
any Taxes shall become payable with respect to any payment made to the Client
by the Custodian or its agents in a prior year, the Custodian or its agents may
withhold Payments in satisfaction of such prior year's Taxes.
(D) In the event the Client requests that the Custodian provide tax relief
services and the Custodian agrees to provide such services, the Custodian or
any of its agents, shall apply for appropriate tax relief (either by way of
reduced tax rates at the time of an income payment or retrospective tax
reclaims in certain markets as agreed from time to time); PROVIDED THAT the
Client provides to the Custodian such documentation and information as is
necessary to secure such tax relief. In no event shall the Custodian or any of
its agents be responsible for the difference between the statutory rate of
withholding and the treaty rate of withholding if the Custodian or any of its
agents are unable to secure tax relief.
12 NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
19.TERMINATION
(A) Either of the parties hereto may terminate this Agreement by giving not
less than 60 days' prior written notice to the other party; PROVIDED THAT
within 60 days of such notice, the Client shall provide the Custodian with
Instructions specifying the person to whom the Custodian shall deliver the
Property in the Custody Account and Custody Cash Accounts; PROVIDED FURTHER
THAT if the Custodian has effected any transaction on behalf of the Client the
settlement of which is likely to extend beyond the expiration of such notice,
then the Custodian shall be entitled in its absolute discretion to close out or
complete such transaction and to retain sufficient funds from the Property for
that purpose. If within 60 days following termination, the Client fails to give
the Custodian Instructions specifying the person to whom the Custodian shall
deliver the Property in the Custody Account and Custody Cash Account, the
Custodian shall deliver the Property to the Client at its address set out above.
(B) The rights and obligations contained in Sections 15, 16, 17 and 18 of this
Agreement shall survive the termination of this Agreement.
20.ASSIGNMENT
This Agreement shall bind and enure for the benefit of the parties hereto
and their respective successors and permitted assigns, and the Client shall not
assign, transfer or charge all or any rights or benefits hereunder without the
written consent of the Custodian. The Custodian may not assign, transfer or
charge all or any of its rights or benefits hereunder without the written
consent of the Client. Any purported assignment, transfer or charge made in
contravention of this Section shall be null and void and of no effect
whatsoever.
21.JOINT AND SEVERAL LIABILITY
Where the Client comprises two or more persons, all obligations and
liabilities under this Agreement shall be deemed to be joint and several, and
any notice served on any one of such persons shall be deemed to have been
served on such other person or persons, as the case may be.
22.DISCLOSURE
(A) The Client agrees and understands that the Custodian or its agents may
disclose information regarding the Custody Account and/or the Custody Cash
Account if required to do so (i) to establish under the laws of any relevant
jurisdiction the nominee (or similar) status of the Custodian or its agents
with respect to Property in the Custody Account and/or Custody Cash Account for
the purpose of performing or discharging its duties and obligations under this
Agreement, (ii) to enable auditors to perform auditing services, (iii) to make
the required tax certifications in the relevant jurisdictions, (iv) by any
applicable law, statute or regulation or court order or similar process in any
relevant jurisdiction, (v) by order of an authority having power over the
Custodian or its agents within the jurisdiction of such authority, whether of a
governmental nature or otherwise, or (vi) where required by the operating rules
of any relevant Clearance System.
(B) The Client hereby authorizes (i) the collection, storage and processing of
any information relating to the Client by the Custodian and the Branches,
subsidiaries, affiliates and agents of, or Clearance Systems used by, Citibank,
N.A.; and (ii) the transfer of any information relating to the Client to and
between the Branches, subsidiaries, affiliates and agents of, or Clearance
Systems used by, Citibank, N.A. and third parties selected by any of them,
wherever situated, for confidential use solely in connection with the provision
of services to the Client, and further acknowledges that any such Branch,
subsidiary, affiliate, agent, third party or Clearance System shall be entitled
to transfer any such information as required by any law, court, legal process
or as requested by any authority in accordance with which it is required to
act, as it shall reasonably determine.
13 NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
(C) The Client agrees that the terms of this Agreement shall be kept strictly
confidential and no printed materials or other matter in any language
(including without limitation, prospectuses, statements of additional
information, notices to shareholders, annual reports and promotional materials)
which mention Citigroup, Citibank, N.A. or the Custodian's name, or the rights,
powers or duties of the Custodian, shall be issued by the Client or on the
Client's behalf unless Citibank, N.A. and/or the Custodian (as applicable)
shall first have given its specific written consent thereto; PROVIDED THAT no
prior consent shall be required if the only reference to the Custodian's name
is in identifying the Custodian as one of the Client's custodians.
23.NOTICES
All notices and communications to be given by one party to the other under
this Agreement shall be in writing in the English language and (except for
notices, reports and information from the Custodian, and Instructions given by
electronic means) shall be made either by telex or facsimile, other electronic
means agreed to by the parties or by letter addressed to the party concerned at
the addresses set out above (or at such other addresses as may be notified in
writing by either party to the other from time to time). Any such notice or
communication hereunder shall be effective upon actual receipt.
24.GOVERNING LAW AND JURISDICTION
(A) This Agreement shall be governed by and construed in accordance with the
internal laws (and not the laws of conflict) of the state of New York. The
Client agrees for the benefit of the Custodian and, without prejudice to the
right of the Custodian to take any proceedings in relation hereto before any
other court of competent jurisdiction, that the courts of the State of New York
shall have jurisdiction to hear and determine any suit, action or proceeding,
and to settle any disputes, which may arise out of or in connection with this
Agreement and, for such purposes, irrevocably submits to the non-exclusive
jurisdiction of such courts.
(B) The Client irrevocably waives, to the fullest extent permitted by
applicable law, with respect to itself and its revenues and assets
(irrespective of their use or intended use), all immunity on the grounds of
sovereignty or similar grounds from (i) suit, (ii) jurisdiction of any court,
(iii) relief by way of injunction, order for specific performance or for
recovery of property, (iv) attachment of its assets (whether before or after
judgment), and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any actions or proceedings in
such courts, and irrevocably agrees, to the fullest extent permitted by
applicable law, that it will not claim such immunity in any such actions or
proceedings.
(C) The Client hereby understands and agrees that the opening of, the holding
of all or any part of the Property in, and the delivery of any Securities and
other Property to or from, the Custody Account and Custody Cash Account and the
performance of any activities contemplated in this Agreement by the Custodian,
including acting on any Instructions, are subject to the relevant local laws,
regulations, decrees, or government orders, and the rules, operating procedures
and practices of any relevant Clearance System or market where or through
Instructions are to be executed or carried out.
25.MISCELLANEOUS
(A) This Agreement shall not be amended except by a written agreement and any
purported amendment made in contravention of this Section shall be null and
void and of no effect whatsoever.
(B) This Agreement shall constitute the entire agreement between the Client and
the Custodian and, unless otherwise expressly agreed in writing, shall
supersede all prior agreements relating to global custodial services, written
or oral, between the parties hereto.
14 NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
(C) The parties hereto agree that (i) the rights, powers, privileges and
remedies stated in this Agreement are cumulative and not exclusive of any
rights, powers, privileges and remedies provided by law, unless specifically
waived, and (ii) any failure or delay in exercising any right power, privilege
or remedy will not be deemed to constitute a waiver thereof and a single or
partial exercise of any right, power, privilege or remedy will not preclude any
subsequent or further exercise of that or any other right, power, privilege or
remedy.
(D) In the event that any provision of this Agreement, or the application
thereof to any person or circumstances, shall be determined by a court of
proper jurisdiction to be invalid or unenforceable to any extent, the remaining
provisions of this Agreement, and the application of such provisions to persons
or circumstances other than those as to which it is held invalid or
unenforceable, shall be unaffected thereby and such provisions shall be valid
and enforced to the fullest extent permitted by law in such jurisdiction.
(E) Titles to Sections of this Agreement are included for convenience of
reference only and shall be disregarded in construing the language contained in
this Agreement.
(F) This Agreement may be executed in several counterparts, each of which shall
be an original, but all of which together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized.
CITIBANK, N.A., New York Office LINCOLN VARIABLE INSURANCE
PRODUCTS TRUST,on behalf of
the Funds listed on Schedule A
By: ---------------------------------- By: ----------------------------
Name: ---------------------------------- Name: ----------------------------
Title: ---------------------------------- Title: ----------------------------
15 NYGCSA.
V-1/97
[GRAPHIC APPEARS HERE]
--------------------------------------------------------------------------------
Schedule A
Series of the Trust that are Subject to
this Global Custodial Services Agreement
LVIP Mid-Cap Growth Fund
LVIP Small-Cap Index Fund
LVIP MFS Value Fund
LVIP Mid-Cap Value Fund
LVIP S&P 500 Index Fund
LVIP Capital Growth Fund
LVIP Xxxxxxx International Growth Fund
LVIP Value Opportunities Fund
LVIP X. Xxxx Price Growth Stock Fund
LVIP Xxxxxxxxx Growth Fund
16 NYGCSA.
V-1/97
