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EXHIBIT 3
CUSTODIAL AGREEMENT BETWEEN AUL, FUND B,
AND NATIONAL CITY BANK
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CUSTODIAL AGENCY AGREEMENT
This Custodial Agency Agreement (the "Agreement"), executed this 28 th day of
January, 1994, by and between National City Bank, Indiana, a national banking
association organized and existing under the laws of the United States of
America (the "Custodian"), and American United Life Pooled Equity Fund B
("Depositor").
WITNESSETH:
In consideration of the mutual agreements herein contained, Depositor does
hereby appoint Custodian as the Custodian of the assets of the Depositor and
hereby authorizes Custodian to maintain the securities and monies of Depositor
under the terms of this Agreement. The Custodian shall establish and maintain a
custody account (the "Account") for and in the name of the Depositor and hold
therein all Securities deposited with or collected by the Custodian for the
Account. The terms "Security" or "Securities" shall mean any negotiable or
non-negotiable investment instrument(s) commonly known as a security or
securities in banking custom or practice.
SECTION 1. ACCEPTANCE OF SECURITIES
(a) The Custodian shall accept delivery from and on behalf of the Depositor of
such Securities as shall, from time to time, be acceptable to it. Any
Securities now held by the Custodian for the Depositor under prior security
agreements shall be deemed to have been deposited hereunder.
(b) The Custodian shall keep the Securities received by it hereunder separate
and distinct from securities, documents, and property owned by itself or
others to the end that each and every item received by it hereunder shall
at all times be identified and identifiable as the sole property of the
Depositor.
(c) The Custodian may, in its discretion, safekeep the Depositor's Securities
in a nationally recognized securities depository or safekeeping facility
including, but not limited to, any facility operated by the Federal Reserve
System, any member of the Federal Reserve System, or any other agency or
instrumentality of the United States Government. Such deposits by the
Custodian into a securities depository or safekeeping facility may be in
book-entry form or such other form as the Custodian deems appropriate.
Placement by the Custodian of Securities into a securities depository or
safekeeping facility shall neither augment nor diminish the Custodian's
responsibilities and rights under any other paragraph of this Agreement. If
the Custodian shall hold the securities in a book entry account, then: (i)
the Custodian shall only deposit the Depositor's securities in a
non-proprietary account which includes only assets held for customers, (ii)
the custodian shall send the Depositor written confirmation of any transfer
to or from the Depositor's account with the Custodian, (iii) the Custodian
shall promptly, upon request, send the Depositor a copy of reports it
receives from depository's system of internal account control, and (iv) the
Custodian shall promptly send the Depositor such
reports on the Custodian's system of internal accounting control as the
Depositor may from time to time request.
(d) The Custodian is authorized to re-register the Securities in the name of
the Custodian or its nominee if required for purposes of book entry deposit
unless alternative and acceptable registration instructions are furnished
by the Depositor.
SECTION 2. STANDARD OF CARE
The Custodian shall exercise due care in receiving, holding and handling the
Securities and will give to such Securities the same care and safeguards as are
afforded similar property owned by the Custodian.
Custodian agrees to receive and to safely keep and preserve all of Depositor's
assets delivered to it and to take all action with respect thereto, as provided
in this Agreement. Custodian assumes full responsibility for the safekeeping of
all of Depositor's securities in the Custodian's custody under this Agreement
and for the performance and completion of any transaction relating to any of
Depositor's securities and hereby indemnifies Depositor against all loss of
principal, interest and any other sums caused by Custodian's failure to meet its
responsibilities hereunder. Custodian shall not, however, be responsible for any
loss arising out of an act of God, war, riot, civil commotion, or the act, order
or decree of any governmental, military, naval or usurped power. In the event
that there is a loss of custodied securities for which Custodian shall be
obligated to indemnify Depositor, Custodian shall promptly replace the
securities or the value thereof and the value of any loss of rights or
privileges resulting from said loss of securities and it is further agreed that
Custodian's responsibility for the performance and completion of any transaction
shall be limited to prompt replacement of the securities or the value thereof if
its inability to complete a transaction shall be directly caused by the
unexpected and intervening act of any third party not subject to Custodian's
direct or indirect control.
Notwithstanding anything to the contrary, Depositor understands and agrees that
the Custodian is acting solely in the capacity as custodian agent for the
Depositor and has no duty to advise the Depositor relative to the investment,
purchase, retention, sale, or other disposition of any Securities held
hereunder. Nothing in this Agreement shall be construed to impose a fiduciary
capacity as Trustee, Guardian, Executor, Administrator or other personal
representative on the Custodian.
Depositor further understands and agrees that Custodian is not responsible for
any system operated by third parties and/or securities exchanges, wire transfer
systems, computer interfaces, etc. nor the availability or failure of same.
Depositor also understands and agrees that the service offered by Custodian and
purchased by Depositor is of the type and character offered to similarly
situated clients of the Custodian and that the Custodian's actions are to be
judged in the context of the usual and customary practice within the custody
business.
SECTION 3. DEPOSITOR DUTIES
The Depositor shall provide the Custodian with a written certificate containing
the specimen signatures of Authorized Persons, any two of whom are hereby
authorized to jointly act and give direction on behalf of the Depositor.
Whenever the term "Authorized Persons" shall be used in this Agreement, this
term shall refer to at least two of the persons authorized to act on behalf of
the Depositor. The Custodian shall be entitled to rely upon such certificate
until notified otherwise by the Depositor in writing.
In the event that the Custodian shall receive conflicting instructions from
Depositor regarding any particular transaction, Custodian shall make best
efforts to resolve such conflict. If the conflict is not resolved, no action
shall be taken. Custodian shall have no further duty to process conflicting
instructions until such conflict can be resolved.
SECTION 4. CUSTODIAN DUTIES
(a) The Custodian shall, at the direction of the Depositor, use its best
efforts to undertake completion of any purchase, sale, exchange, or any
other disposition of Securities made or arranged by the Depositor provided
that such direction is received by the Custodian in each case prior to the
applicable deadline as established by the Custodian.
The net proceeds of any sale shall be credited to the Account or remitted in
accordance with the instructions of the Depositor.
The Depositor shall provide the Custodian with immediately available funds in an
amount sufficient to complete any purchase. Any failure to provide such funds
shall result in such purchase not being deemed completed as far as the
Depositor's ownership of such Securities are concerned and the Custodian shall
be authorized to dispose of such Securities and any proceeds therefrom as soon
as practicable in such manner as the Custodian shall, within its sole
discretion, deem appropriate for the purpose of recouping any amounts expended
by the Custodian in the purchase of such Securities. Whether any Custodian funds
shall be expended towards the purchase of Securities for the Depositor hereunder
shall be within the Custodian's sole discretion. The Depositor shall be liable
to the Custodian for any costs, expenses and losses incurred by the Custodian in
the disposition of such Securities or proceeds and shall immediately reimburse
the Custodian for such amounts upon demand.
(b) The Custodian may accept written, oral, electronic, and telecommunications
instructions from the Depositor. The Custodian shall have no responsibility
for the adequacy or accuracy of such instructions received from the
Depositor and shall incur no liability for, and shall be entitled to rely
upon, any such instructions which the Custodian believes in good faith are
given by Authorized Persons. All instructions which have been given by
Depositor by means of oral, electronic, or telecommunications shall be
confirmed by Authorized Persons of Depositor in writing.
(c) The custodian shall promptly notify the Depositor of any calls for
redemption, mergers, tenders, consolidations, reorganizations,
recapitalizations, or similar proceedings affecting domestic Securities
(other than those Securities registered in the Depositor's name) held in
the Account, provided notice of such proceedings appears in standard New
York financial publications or a service to which the Custodian subscribes.
The Custodian shall not be liable for late presentation of such items when
the Depositor has failed to timely instruct the Custodian in writing.
Should any Security held in a securities depository be called for a partial
redemption by the issuer of such Security, the Custodian is authorized, in
its sole discretion, to allot the called portion to the respective holders
in any manner it deems fair and equitable. Upon the request of the
Depositor, Custodian shall provide a written explanation of the method used
to allot the called portion of a partial redemption.
(d) The Custodian shall present all maturing bonds and coupons for collection
and is authorized to receive payment of income and principal on other items
in accordance with their terms. All funds so collected shall be credited to
the Account or remitted in accordance with the instructions of the
Depositor.
(e) The Custodian shall furnish the Depositor with periodic statements showing
the Securities held in the Account and the transactions for the '
immediately preceding period. Custodian acknowledges that all of the
accounts and records maintained by the Custodian pursuant to this Agreement
will be made available for inspection or reproduction within a reasonable
period of time after demand. Custodian will assist the Depositor's
independent accountants, or with the approval of the Depositor, any
regulatory body in any requested review of the Depositor's accounts and
records but shall be reimbursed for all expenses and employee time spent in
any such review outside of routine and normal periodic reviews.
SECTION 5. FOREIGN SECURITIES
With respect to Securities of foreign issuers, the Custodian shall use its best
efforts to collect dividends, interest, and other income, and to notify the
Depositor of any calls for redemption, offers of exchange, rights of
subscriptions, reorganizations, or other proceedings affecting such Securities.
The Custodian shall not be responsible for any failures or delays in collection
or notice not within the control of the Custodian.
Collections or income in foreign currency shall, to the extent possible, be
converted into United States dollars and, in effecting such conversions, the
Custodian may use such methods or agencies as it deems appropriate. The risk of
transmittal, instability of the issuer or country of the issuer or its agents,
and any expense incident to such collection and conversion shall be at the
Depositor's risk and expense. In addition, the Custodian shall have no
responsibility for any fluctuation in exchange rates affecting such conversion.
SECTION 6. PROXY MATERIALS
All proxies and related information received by the Custodian in connection with
the Securities shall be promptly transmitted to the Depositor.
SECTION 7. CUSTODIAN POWER OF ATTORNEY
The Custodian is authorized and empowered in the name of and on behalf of the
Depositor to execute any certificates of ownership or other instruments which
are or may hereafter be required by any regulations of the United States or any
state or political subdivision thereof, so that the Custodian may fulfill its
obligations hereunder as required in connection with any Securities.
SECTION 8. FEES AND EXPENSES
The Depositor agrees to promptly pay upon receipt of an invoice from the
Custodian the fees set forth in the attached schedule. The Custodian reserves
the right to revise its fees upon giving ninety (90) days written notice to the
Depositor. Fees for services not specifically enumerated in the attached
schedule shall be in addition to these specifically enumerated.
SECTION 9. AMENDMENTS
The parties may make amendments to the Agreement from time to time, provided
that any such amendment shall be reduced to writing and shall be executed as an
addendum to this Agreement in the same manner as this Agreement has been
executed.
SECTION 10. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon and shall inure to the benefit of the
successors and assigns of the respective parties hereto.
SECTION 11. COMPLETENESS OF AGREEMENT
This Agreement along with a copy of the fee schedule constitutes the full and
complete agreement between the Custodian and Depositor, and no other
understanding or agreement, whether written or oral, shall bind either of the
parties hereto.
SECTION 12. GOVERNING LAW
This Agreement shall be governed by the applicable laws of the State of Indiana.
SECTION 13. TERMINATION
All the covenants and agreements in this Agreement contained by or on behalf of
the Custodian or the Depositor shall bind and inure to the benefit of their
respective successors and assigns.
This Agreement may be terminated by either the Depositor or the Custodian upon
at least ninety (90) days prior written notice to the other. The Depositor shall
have a period of forty five (45) days from the date of the last and final
accounting provided by the Custodian to make any objection or claim, and failure
to do so within the forty five (45) day period shall be deemed by the parties
hereto to constitute accord and satisfaction. As soon as practicable following
termination of this Agreement, Custodian shall deliver all Securities in
accordance with Depositor's written instructions.
In the event of the inability of the Custodian to serve or continue to serve or
as a result of the termination of this Agreement by either party, then the
Depositor shall forthwith appoint a bank or trust company of good standing,
having capital, surplus and undivided profits of not less than $2,000,000 and
said Bank or Trust Company shall act as successor to the Custodian. In such
event, and providing that Custodian shall have been compensated for the fees
properly due and owing it, Custodian shall deliver the Depositor's funds and
securities to the successor Custodian selected by Depositor, duly endorsed and
in form for transfer.
SECTION 14. NOTICES
It shall be sufficient service of any notice, request, authorization, complaint,
demand or other paper required under this Agreement to be given or filed with
the Custodian or Depositor if the same shall be duly mailed by first class mail
with postage prepaid addressed as follows:
(a) If to the Custodian:
National City Bank, Indiana
Corporate Trust Department
Attention: Security Custody
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Fax Number: (▇▇▇)▇▇▇-▇▇▇▇
(b) If to the Depositor:
American United Life Insurance Company
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Fax Number: (▇▇▇)▇▇▇-▇▇▇▇
SECTION 15. ASSIGNMENT
This Agreement may not be assigned by the Custodian without the written consent
of the Depositor duly approved by resolution of its Board of Directors or the
Executive Committee or any successor Committee similar to the present Executive
Committee.
SECTION 16. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed an
original.
IN WITNESS WHEREOF, the parties hereto executed this Agreement as of the day and
year first above written.
DEPOSITOR
American United Life Insurance Company
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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BY: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
TITLE: Chairman, President and
Chief Executive Officer
ATTEST:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Secretary
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Chairman of Board of Manager
Pooled Equity Fund B
CUSTODIAN
National City Bank Indiana
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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BY: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
ATTEST:
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
Assistant Vice President
CERTIFICATE OF AUTHORIZED
REPRESENTATIVES
The following individuals are Authorized Representatives for purpose of giving
direction on behalf of American Life Insurance Company pursuant to that
Custodial Agency Agreement dated, 1994 by and between National City Bank,
Indiana and American United Life Insurance Company.
Name and Title Signature
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman of the Board, /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
▇. ▇. ▇▇▇▇▇▇, Senior Vice President /s/ ▇. ▇. ▇▇▇▇▇▇
Corporate Finance
G. ▇▇▇▇▇ ▇▇▇▇, Senior Vice President, Investments /s/ G. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, Mortgage Loans /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇ ▇▇▇▇▇, Vice President /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Fixed Income Securities
▇. ▇▇▇▇▇▇, Controller /s/ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, Treasurer /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant Teasurer /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Dated this 28th day of January, 1994.
American United Life Insurance Company
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman, President and
Chief Executive Officer
Attest:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary