Exhibit 9(ww)
FORM OF SECURITIES LENDING AGREEMENT AND GUARANTY
AGREEMENT, dated as of August __, 2006 between BNY Xxxxxxxx Funds, Inc., on
behalf of each of its Series listed on Exhibit A (each such Series is
hereinafter referred to as "Lender"), and The Bank of New York ("Bank").
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, unless the context otherwise requires, the
following words shall have the meanings set forth below:
1. "Act of Insolvency" shall mean (i) the filing by a Borrower of a petition
in bankruptcy or a petition seeking reorganization, liquidation or similar
relief, or the filing of any such petition against a Borrower which is riot
dismissed or stayed within 60 calendar days, (ii) the adjudication of a
Borrower as bankrupt or insolvent, (iii) the seeking or consenting to the
appointment of a trustee, receiver or liquidator by a Borrower, or (iv) the
making of a general assignment for the benefit of creditors by a Borrower or a
Borrower's admission in writing of its inability to pay its debts as they
become due.
2. "Account" shall mean the custodial account established and maintained by
Bank on behalf of Lender for the safekeeping of Securities and monies received
by Bank from time to time.
3. "Approved Investment" shall mean any type of security, instrument,
participation or interest in property in which Cash Collateral may be invested
or reinvested, as set forth on Schedule I hereto (which may be amended from
time to time by execution of a revised Schedule I).
4. "Authorized Person" shall mean any officer of Lender and any other
person, whether or not any such person is an officer or employee of Lender,
duly authorized by corporate resolutions of \\,\\the Board of Directors of
Lender to give Oral and/or Written Instructions on behalf of Lender, such
persons to be designated in a Certificate which contains a specimen signature
of such person.
5. "Book-Entry System" shall mean the Treasury Reserve Automated Debt Entry
System maintained at The Federal Reserve Bank of New York.
6. "Borrower" shall mean any entity named on a list supplied to Lender by
Bank (as such list may be amended from time to time), other than any entity
deleted from such list pursuant to a Certificate.
7. "Business Day" shall mean any day on which Bank is open for business and
on which the Book/Entry System and/or the applicable Depositories are open for
business.
8. "Cash Collateral" shall mean either fed funds or New York Clearing House
funds, as applicable for a particular Loan.
9. "Certificate" shall mean any notice; instruction, schedule or oilier
instrument in writing, authorized or required by this Agreement to be given to
Bank, which is actually received by Bank and signed on behalf of Lender by an
Authorized Person or a person reasonably believed by Bank to be an Authorized
Person.
10. "Collateral" shall mean Government Securities, Letters of Credit and/or
Cash Collateral.
11. "Collateral Account" shell mean an account established and maintained
for Lender by Bank for the purpose of holding Collateral, Approved Investments,
Proceeds and any Securities Loan Fee paid by Borrowers in connection with Loans
hereunder.
12. "Collateral Requirement" shall mean with respect to Loans an amount
equal to 102% of the then current Market Value of Loaned Securities which are
the subject of Loans as of the close of trading on the preceding Business Day.
13. "Depository" shall mean (i) the Depository Trust Company and any other
securities depository or clearing agency (and their respective successors and
nominees) registered with the Securities and Exchange Commission or otherwise
authorized to act as a securities depository or clearing agency in the United
States, (ii) (a) Euroclear, Clearstream and any other depository or clearing
agency (and their respective successors and (nominees) organized under the laws
of a country other than the United States and operating outside the United
States which is authorized to act as a securities depository or clearing
agency, and (b) any other entity which provides for the clearance and
settlement of transactions, provided that with respect to both clause (a) and
clause (b), such entity has been approved for use as a foreign securities
depository under Lender's Custody Agreement with The Bank of New York, as
custodian.
14. "Distributions" shall mean interest, dividends and other payments and
distributions payable by Borrowers in respect of Loaned Securities.
15. "Government Security" shall mean Book-entry Securities as defined in 31
C.F.R. Part 357.2 and any other securities issued or fully guaranteed by the
United States government or any agency, instrumentality or establishment of the
United States government.
16. "Letter of Credit" shall mean a clean, unconditional and irrevocable
letter of credit in favor of Bank as agent for Lender issued by a bank named on
a list supplied to xxxxxx by Bank (as such list may be amended from time to
time), other than a bank deleted from such list pursuant to a Certificate.
17. "Loan" shall mean a loan of Securities hereunder.
18. "Loaned Security" shall mean any Security which is subject to a Loan.
19. "Market Value" shall mean (a) with respect to Government Securities, the
price of such Securities as quoted by a recognized pricing information service
at the time the determination of Market Value is made, plus accrued but unpaid
interest, if any, on the particular Security, (b) with respect to other
Securities, the price of such Securities as quoted by a
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recognized pricing information service at the time such determination is made,
plus accrued but unpaid interest, if any, to the extent not included in the
price as quoted, (c) with respect to Cash Collateral, its amount, and (d) with
respect to Letters of Credit, the amount of such Letters of Credit.
20. "Oral Instructions" shall mean verbal instructions actually received by
Bank from an Authorized Person or from a person reasonably believed by Bank to
be an Authorized Person.
21. "Proceeds" shall mean any interest, dividends and other payments and
distributions received by Bank in respect of Collateral and Approved
Investments.
22. "Rebate" shall mean the amount payable by Lender to a Borrower in
connection with Loans at any time collateralized by Cash Collateral.
23. "Receipt" shall mean an advice or confirmation setting forth the terms
of a particular Loan.
24. "Securities Borrowing Agreement" shall mean the agreement pursuant to
which Bank lends securities to a Borrower on behalf of its customers (including
Lender) from time to time.
25. "Securities Loan Fee" shall mean the amount payable by a Borrower to
Bank pursuant to the Securities Borrowing Agreement in connection with Loans
collateralized by Collateral other than Cash Collateral.
26. "Security" shall include Government Securities, common stock and other
equity securities, bonds, debentures, corporate debt securities, notes,
mortgages or other obligations, and any certificates, warrants or other
instruments representing rights to receive, purchase, or subscribe for the
same, or evidencing or representing any other rights or interests therein.
27. "Written Instructions" shall mean written communications actually
received by Bank from an Authorized Person or from a person reasonably believed
by Bank to be an Authorized Person by letter, memorandum, telegram, cable,
telex, facsimile, computer, video (CRT) terminal or other on-line system, or
any other method whereby Bank is able to verify with a reasonable degree of
certainty the identity of the sender of such communications or the sender is
required to provide a password or other identification code.
ARTICLE II
APPOINTMENT OF BANK; SCOPE OF AGENCY AUTHORITY
1. Appointment. Lender hereby appoints Bank as its agent to lend Securities
in the Account to Borrowers from time to time (except Securities which Lender
has advised Bank in Written Instructions are not eligible to be loaned or are
no linger subject to the representations set forth in Article III,
sub-paragraph (e) hereof), and Bank hereby accepts appointment as such agent
and agrees to so act. Bank shall not make any Loans hereunder if as a result of
such Loan the Market Value of all Leaned Securities hereunder would exceed 33%
of the total assets of Lender or such other lower percentage as may be
specified in Written Instructions by Lender.
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2. Securities Borrowing Agreement. Lender hereby acknowledges receipt of
Bank's standard form(s) of Securities Borrowing Agreement and, subject to the
terms and conditions hereof, authorizes Bank to lend Securities in the Account
to Borrowers pursuant to agreements substantially in the form thereof. Bank is
hereby authorized to negotiate with each Borrower the amount of Rebates payable
in connection with particular Loans. Bank shall deliver to Leader a Receipt
relating to each Loan.
3. Loan Opportunities. Bank shall treat Lender equitably with other lenders
of like circumstances in making lending opportunities available to it
hereunder, taking into account the demand for specific securities, availability
of securities, types of collateral, eligibility of borrowers, limitations on
investments of cash collateral and such other factors as Bank deems
appropriate. Bank shall nevertheless have the right to decline to make any
Loans pursuant to any Securities Borrowing Agreement and to discontinue lending
under any Securities Borrowing Agreement in its sole discretion and without
notice to Lender.
4. Use of Book-Entry System and Depositories. Lender hereby authorizes Bank
on a continuous and on-going basis, to deposit in the Book-Entry System and the
applicable Depositories all Securities eligible for deposit therein and to
utilize the Book-Entry System and Depositories to the extent possible in
connection with its receipt and delivery of Securities, Collateral, Approved
Investments and monies under this Agreement. Securities, Collateral and
Approved Investments deposited in the Book-Entry System or a Depositary will be
represented in accounts with such entities which include only assets held by
Bank for customers, including but not limited to accounts in which Bank acts in
a fiduciary or agency capacity.
5. The Account and the Collateral Account. Each of the Account and the
Collateral Account shall constitute a "securities account" maintained by Bank
for Lender as contemplated by Section 8-501 of the Uniform Commercial Code as
in effect in the State of New York ("UCC"), and Bank will treat all assets
(other than cash) credited to either the Account or the Collateral Account as
"financial assets," as that term is defined in UCC Section 8-102(a)(9).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Lender hereby represents and warrants to Bank, which representations and
warranties shall be deemed to be continuing and to be reaffirmed on any day
that a Loan is outstanding, that:
(a) This Agreement is, and each Loan will be, legally and validly entered
into, does not, and will not, violate any statute, regulation, rule, order or
judgment binding on Lender, or any provision of Lender's charter or by-laws, or
any agreement binding on Lender or affecting its property, and is enforceable
against Lender in accordance with its terms, except as may be limited by
bankruptcy, insolvency or similar laws, or by equitable principles relating to
or limiting creditors' rights generally;
(b) The person executing this Agreement and all Authorized Persons acting on
behalf of Lender has and have been duly and properly authorized to do so;
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(c) If it is lending Securities as principal for its own account it will not
transfer, assign or encumber its interest is, or rights with respect to, any
Loans;
(d) If it is acting as agent for one or more third parties, Lender is either
authorized by virtue of standing instructions or is a fiduciary with the
authority to enter into, execute and bind such third parties to this Agreement
and the Loans effected for such third parties, and Lender is authorized to
make, and makes each of the representations and warranties set forth in
sub-paragraphs (a) through (c) above for each such third party; and
(e) All Securities in the Account (other than such Securities as Lender has
advised Bank in Written Instructions are not eligible to be loaned or are no
longer subject to the representations set forth in this sub-paragraph) are free
and clear of all liens, claims, security interests and encumbrances and no such
Security has been sold. Lender shall promptly deliver to Bank a Certificate
identifying any and all Securities which are no longer subject to the
representations contained in this sub-paragraph (e).
ARTICLE IV
SECURITIES LENDING TRANSACTIONS
1. General Bank Responsibilities. Bank shall enter Loans pursuant to the
Securities Borrowing Agreement and take all actions that it reasonably deems
necessary or appropriate in order to perform on Lender's behalf thereunder,
including receiving Collateral having a Market Value of not less than the
Collateral Requirement, collecting Distributions and applicable Securities Loan
Fees, and demanding additional Collateral from the appropriate Borrower when
the Market Value of Collateral received by Bank from such Borrower with respect
to all Loans by such Lender to such Borrower is (a) with respect to Loaned
Securities other than Government Securities, less than the Collateral
Requirement, provided that Bank need not demand additional Collateral if the
Market Value of the Collateral is at least 100% of the Market Value of the
Loaned Securities and the amount of such demand would be less than such minimum
amount as Bank may reasonably determine from time to time and in accordance
with its standard practices, and (b) with respect to Loaned Securities which
are Government Securities, less than the then current Market Value of such
Government Securities. Whenever Bank demands additional Collateral pursuant to
the foregoing, such additional Collateral together with the Collateral then
held by Bank in connection with Loans shall have a Market Value of not less
than the Collateral Requirement.
2. Approved Investments. (a) Bank is hereby authorized and directed, without
obtaining any further approval from Lender, to invest and reinvest all or
substantially all of the Cash Collateral received in any Approved Investment.
Bank shall credit all Collateral, Approved Investments and Proceeds received
with respect to Collateral and Approved Investments to Lender's Collateral
Account, it being understood that all monies credited to such Collateral
Account may for purposes of investment be commingled with cash collateral held
for other lenders of securities for whom Bank acts as their respective agent.
Bank shall remit to Lender the net earnings on Cash Collateral on a monthly
basis, on or about the tenth Business Day after the end of the preceding month,
and shall remit to Lender any loan fees that are paid by Borrowers in respect
of Loans promptly upon Bank's receipt of such fees. In each case, the
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amount remitted to Lender may be reduced by the amount of any compensation due
to Bank under paragraph 8 of Article V.
(b) Lender may deliver to Bank Written Instructions from time to time
instructing Bank not to make Approved Investments with particular financial
institutions or issuers.
(c) All Approved Investments shall be for the account and risk of Lender. To
the extent any loss arising out of Approved Investments results in a deficiency
in the amount of Collateral available for return to a Borrower, Lender agrees
to pay Bank on demand cash in an amount equal to such deficiency.
(d) Except as otherwise provided herein, including, without limitation, as
provided in sub-paragraphs (a) and (b) of this paragraph 2, Bank shall have
sole investment discretion with respect to all Cash Collateral, Approved
Investments and Proceeds credited to the Collateral Account, and Bank shall not
be required to comply with any instruction from Lender with respect to the
investment, disposition or disbursement of any Collateral.
3. Termination of Loans. (a) Bank shall terminate any Loan:
(i) upon receipt by Bank of a notice of termination from a Borrower;
(ii) upon receipt by Bank of Written Instructions to do so;
(iii) upon receipt by Bank of a Certificate instructing it to delete the
Borrower to whom such Loan was made from the list referred to in Article I,
paragraph 6 hereof,
(iv) upon receipt by Bank of a Certificate advising that the Loaned
Security is no longer subject to the representations contained in Article
III, sub-paragraph (e) hereof;
(v) upon receipt by Bank of notice or a Certificate advising that an
Event of Default (as defined in the Securities Borrowing Agreement) has
occurred and is continuing beyond any applicable grace period;
(vi) whenever Bank, in its sole discretion, elects to terminate such Loan;
(vii) upon termination of this Agreement; or
(viii) unless otherwise directed by Lender, upon the termination of the
provisions of paragraph 5(a) of this Article being terminated with respect
to the Borrower pursuant to paragraph 5(e) of this Article.
(b) Upon termination of any Loan (which shall be effected according to the
standard settlement time for trades in the particular Loaned Security) and
receipt from the Borrower of the Loaned Securities and any Distributions then
due, Bank shall return to the Borrower such amount of Collateral as is required
by the Securities Borrowing Agreement and pay the Borrower any Rebates then
payable.
(c) In order for Bank to timely settle the sale of Loaned Securities, it
shall be Lender's responsibility to ensure prompt notification to Bank
regarding any such sale. If Bank
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has received such prompt notice, Bank shall on the settlement date for such
sale cause the Account to be credited with settlement proceeds of any sale
whenever the Securities sold are the subject of a Loan, even if the same have
not been timely returned by the Borrower, provided such credit may be reversed
if such sale fails for a reason other than the failure of Lender to deliver the
sold Securities.
4. Securities Loan Fee. Bank shall receive any applicable Securities Loan
Fee paid by Borrowers and credit all such amounts received to the Collateral
Account.
5. Guarantee and Subrogation. (a) If a Borrower fails for any reason to
return any Loaned securities and any Distribution then due when required in
accordance with the terms of the applicable Securities Borrowing Agreement,
Bank shall take all actions which it deems necessary or appropriate to
liquidate Approved Investments and Collateral in connection with Loans to such
Borrower and, unless advised by Lender to the contrary, shall make a reasonable
effort for two Business Days (the "Replacement Period") to apply the proceeds
thereof to the purchase of Securities identical to the Loaned Securities (or
the equivalent thereof in the event of a reorganization or recapitalization of
the issuer) not returned. If during the Replacement Period the Collateral
liquidation proceeds are insufficient to replace any of the Loaned Securities
not returned, Bank shall, subject to satisfaction of Lender's obligations under
paragraph 2(c) of this Article, pay such additional amounts as are necessary to
make such replacement. Purchases of replacement Securities shall be made only
in such markets, in such manner and upon such terms as Bank shall consider
appropriate in its sole discretion. Replacement Securities shall be credited to
the Account upon receipt by Bank. If Bank is unsuccessful in purchasing any
replacement Securities during the Replacement Period, the proceeds of the
liquidation of Approved Investments and Collateral pursuant hereto shall be
credited to the Account, and Bank shall, subject to satisfaction of Lender's
obligations under paragraph 2(c) of this Article, credit to the Account cash in
an amount (if any) equal to (X) the Market Value of the Loaned Securities not
returned, minus (Y) the Collateral liquidation proceeds, such calculation to be
made on the date of such credit, and provided Bank receives prompt notification
pursuant to paragraph 3(c) of this Article, Bank agrees to pay to Lender
additional amounts equal to (i) any interest expense incurred by Lender which
is directly attributable to the failure of a Borrower to return any Loaned
Securities when required, (ii) any buy-in cost or buy-in expenses actually
incurred and directly attributable to the failure of a Borrower to return any
Loaned Securities and Distributions then due when required and (iii) the loss
incurred by Lender on any cancelled sale of Loaned Securities directly
attributable to the failure of a Borrower to return such Loaned Securities.
(b) Lender understands and agrees that, notwithstanding preceding paragraph
5(a) of this Article, if a Borrower fails to return Loaned Securities for
reasons other than an Act of Insolvency, Bank may, in its reasonable
discretion, elect to delay the liquidation of Approved Investments and
Collateral, and such Approved Investments shall continue to be subject to
paragraph 2(c) of this Article. It is agreed that Bank's reasonable discretion
shall be limited to the normal settlement cycle for purchases or sales of the
Loaned Securities, unless Bank has reasonably concluded that such Loaned
Securities may not be purchased with "guaranteed settlement", in which case
Bank may forebear acting until the Loaned Securities may be purchased with such
a "guaranteed settlement".
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(c) Lender agrees, without the execution of any documents or the giving of
any notice, that Bank is and will remain subrogated to all of Lender's rights
under the Securities Borrowing Agreement or otherwise (i) to the extent of any
credit pursuant to paragraphs 5(a) or 5(b) of this Article, and (u) in the
event of any credit pursuant to paragraph 3(c) of this Article, including in
either event but not limited to, Lender's rights with respect to Loaned
Securities and Distributions, and Collateral, Approved Investments and
Proceeds. Lender agrees to execute and deliver to Bank such documents as Bank
may require and to otherwise fully cooperate with Bank to give effect to its
rights of subrogation hereunder.
(d) Bank shall have no obligation to take any actions pursuant to paragraph
5(a) or paragraph 5(b) of this Article or to the last sentence of paragraph
3(c) of this Article if it believes that such action will violate any
applicable statute, regulation, rule, order or judgment, Furthermore, except as
provided in paragraph 5(a) of this Article, Bank shall have no other liability
to Lender relating to any Borrower's failure to return Loaned Securities and no
duty or obligation to take action to effect payment by a Borrower of any
amounts owed by such Borrower pursuant to the Securities Borrowing Agreement.
(e) Either party may terminate the provisions of paragraph 5(a) or paragraph
5(b) of this Article or of the last sentence of paragraph 3(c) of this Article
with respect to any Borrower at any time by delivery of a notice to the other
party specifying a termination date not earlier then the date of receipt of
such notice by the other party. No such termination shall be effective with
respect to then existing rights of either party under such paragraphs of this
Article or outstanding Securities Loans hereunder.
(f) Bank may offset any amounts payable by Lender under this Agreement
against amounts payable by Bank under paragraphs 3(c), 5(a) or 5(b) of this
Article.
6. Taxes. Lender shall he solely responsible for all tax matters arising in
connection with Loans and Approved Investments, including without limitation,
determinations of whether or not any Loan or Approved Investment results in
liability to it for income tax, capital gains tax, value added tax, withholding
tax, stamp duties, transfer taxes or any other taxes, assessments, duties and
other governmental charges, including any interest or penalty with respect
thereto ("Taxes"). Lender shall indemnify Bank for the amount of any Taxes that
Bank or any withholding agent 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 Lender (including
any payment of Tax required by reason of an earlier failure to withhold). In
the event that Bank or any withholding agent is required under applicable law
to pay any Tax on behalf of Lender, Bank is hereby authorized to withdraw cash
from any cash account in the amount required to pay such Tax and to use such
cash for the timely payment of such Tax in the manner required by applicable
law. If the aggregate amount of cash in such cash account is not sufficient to
pay such Tax, Bank shall promptly notify Lender of the additional amount of
cash (in the appropriate currency) required, and Lender shall directly deposit
such additional amount in the appropriate cash account promptly after receipt
of such notice, for use by Bank as specified herein. In no event shall Bank be
responsible for collecting any Taxes from Borrowers.
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ARTICLE V
CONCERNING BANK
1. Standard of Care; Reimbursement. (a) Except as provided in paragraphs
3(c), 5(a) and 5(b) of Article IV hereof, Bank shall not be liable for any
costs, expenses, damages, liabilities or claims (including attorneys' and
accountants' fees) incurred by Lender, except those costs, expenses, damages,
liabilities or claims arising out of the negligence, bad faith or willful
misconduct of Bank. Bank shall have no obligation hereunder for costs,
expenses, damages, liabilities or claims (including attorneys' and accountants'
fees), which are sustained or incurred by reason of any action or inaction by
the Book-Entry System or any Depository or their respective successors or
nominees. In no event shall Bank be liable for special, indirect or
consequential damages, or lost profits or loss of business, arising under or in
connection with this Agreement, even if previously informed of the possibility
of such damages and regardless of the form of action.
(b) Except for any costs or expenses incurred by Bank in performing its
obligations pursuant to paragraphs 5(a) and 5(b) of Article IV hereof, Lender
agrees to reimburse Bank and to hold it harmless from and against any and all
costs, expenses, damages, liabilities or claims, including reasonable fees and
expenses of counsel incurred by Bank in a successful defense of claims by
Lender, which Bank may sustain or incur or which may be asserted against Bank
by reason of or as a result of any action taken or omitted by Bank in
connection with operating under this Agreement, other than those costs,
expenses, damages, liabilities or claims arising out of the negligence, bad
faith or willful misconduct of Bank. The foregoing shall be a continuing
obligation of Lender, its successors and assigns, notwithstanding the
termination of any Loans hereunder or of this Agreement. Bank may charge any
amounts to which it is entitled hereunder against the Account. Actions taken or
omitted in reliance upon Oral or Written Instructions, any Certificate, or upon
any information, order, indenture, stock certificate, power of attorney,
assignment, affidavit or other instrument reasonably believed by Bank to be
genuine or bearing the signature of a person or persons reasonably believed to
be authorized to sign, countersign or execute the same, shall be conclusively
presumed to have been taken or omitted in good faith.
2. No Obligation to Inquire. Without limiting the generality of the
foregoing, Bank shall be under no obligation to inquire into, and shall not be
liable for, the validity of the issue of any Securities, Collateral or Approved
Investments held in the Account or Collateral Account, or the legality or
propriety of any Loans hereunder.
3. Reliance on Borrowers' Statements Representations and Warranties.
Provided that it acts with reasonable care, Bank shall be entitled to rely upon
the most recently available audited and unaudited statements of financial
condition and representations and warranties made by Borrowers, and Bank shall
not be liable for any loss or damage suffered as a result of any such reliance.
4. Advances, Overdrafts and Indebtedness; Security Interest. (a) Bank may,
in its sole discretion, advance funds to Lender in order to pay to Borrowers
any Rebates or to return to Borrowers Cash Collateral to which they are
entitled. Bank may also credit the Account or Collateral Account with
Securities Loan Fees payable by Borrowers prior to its receipt thereof.
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Any such credit shall be conditional upon receipt by Bank of final payment and
may be reversed to the extent final payment is not received.
(b) Lender agrees to repay Bank on demand the amount of any advance or any
other amount owed by Lender hereunder plus accrued interest at a rate per annum
(based on a 360-day year for the actual number of days involved) not to exceed
the Fed funds rate as publicly announced to be in effect from time to time,
such rate to be adjusted on the effective date of any change it such fed funds
rate. In order to secure repayment of any advance or other indebtedness of
Lender to Bank arising hereunder Lender hereby agrees that Bank shall have a
continuing lien and security interest in and to all assets now or hereafter
held in the Account and the Collateral Account (held on Lender's behalf) and
any other property at any time held by it for the benefit of Lender or in which
Lender may have an interest which is then in Bank's possession or control or in
the possession or control of any third party acting on Bank's behalf. In this
regard, Bank shall be entitled to all the rights and remedies of a pledgee
under common law and a secured party under the New York Uniform Commercial Code
and/or any other applicable laws and/or regulations as then in effect.
5. Advice of Counsel. Bank may, with respect to questions of law, apply for
and obtain the advice and opinion of counsel and shall be fully protected with
respect to anything done or omitted by it in good faith in conformity with such
advice or opinion.
6. No Collection Obligations. Bank shall be under no obligation or duty to
take action to effect collection of, or be liable for, any amounts payable in
respect of Securities or Approved Investments if such Securities or Approved
Investments are km default, or if payment is refused after due demand and
presentation.
7. Pricing Services. Bank is authorized to utilize any recognized pricing
information service in order to perform its valuation responsibilities with
respect to Loaned Securities, Collateral and Approved Investments, and Lender
agrees to hold Bank harmless from and against any loss or damage suffered or
incurred as a result of errors or omissions of any such pricing information
service.
8. Agent's Fee. For its performance as Lender's agent in making and
administering Loans, Lender shall pay to Bank a fee, computed and payable
monthly, as set forth in Schedule II. Bank is authorized, on a monthly basis,
to charge its fees and any other amounts owed by Lender hereunder against the
Account and/or Collateral Account.
9. Reliance On Certificates and Instructions. Bank shall be entitled to rely
upon any Certificate, Written or Oral Instruction actually received by Bank and
reasonably believed by Bank to be duly authorized and delivered. Lender agrees
to forward to Bank Written Instructions confirming Oral Instructions in such
manner so that such Written Instructions are received by Bank by the close of
business of the same day that such Oral Instructions are given to Bank. Lender
agrees that the fact that such confirming Written Instructions are not received
or that contrary instructions are received by Bank shall in no way affect the
validity or enforceability of the transactions authorized by Lender. In this
regard, the records of Bank shall be presumed to reflect accurately any Oral
Instructions given by an Authorized Person or a person believed by Bank to be
an Authorized Person.
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10. Disclosure of Account Information. It is understood and agreed that Bank
is authorized to supply any information regarding the Account or Collateral
Account which is required by any statute, regulation, rule or order now or
hereafter in effect.
11. Statements. Bank will at least monthly furnish Lender with statements
relating to Loans hereunder.
12. Force Majeure. Bank shall not be responsible or liable for any failure
or delay in the performance of its obligations under this Agreement arising out
of or caused, directly or indirectly, by circumstances beyond its control,
including without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; epidemics; riots; interruptions, loss
or malfunctions of utilities, transportation, computer (hardware or software)
or communications service; accidents; labor disputes; acts of civil or military
authority; governmental actions; or inability to obtain labor, material,
equipment or transportation.
13. No Implied Duties. Bank shall have no duty or responsibilities
whatsoever except such duties and responsibilities as are specifically set
forth in this Agreement, and no covenant or obligation shall be implied against
Bank in connection with this Agreement.
ARTICLE VI
TERMINATION
This Agreement may be terminated at any time by Bank or any Lender upon
delivery to the other party of a written notice specifying the date of such
termination, which shall be not less than 45 days after the date of receipt of
such notice. Notwithstanding any such notice, this Agreement shall continue in
full force and effect with respect to all Loans outstanding on the date of
termination.
ARTICLE VII
MISCELLANEOUS
1. Exclusivity. Lender agrees that prior to the date of any notice of
termination pursuant to Article VI hereof, it shall not enter into any other
agreement with any third party whereby such third party is permitted to make
loans on behalf of Lender of Securities held by Bank from time to time.
2. Certificates. Lender agrees to furnish to Bank a new Certificate in the
event that any present Authorized Person ceases to be an Authorized Person or
in the event that any other Authorized Persons are appointed and authorized.
Until such new Certificate is received, Bank shall be fully protected in acting
upon Oral Instructions or signatures of the present Authorized Persons.
3. Notices. (a) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to Bank, shall be sufficiently given if
addressed to Bank and received by it at its offices at 00 Xxx Xxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Securities Lending Division, or at such other place
as Bank may from time to time designate in writing.
11
(b) Any notice or other instrument in writing, authorized or required by
this Agreement to be given to Lender shall be sufficiently given if addressed
to Lender and received by it, care of The Bank of New York, at 0 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as Lender may from
time to time designate in writing.
4. Cumulative Rights and No Waiver. Each and every right granted to Bank or
Lender hereunder or under any other document delivered hereunder or in
connection herewith, or allowed it by law or equity, shall be cumulative and
may be exercised from time to time. No failure on the part of any party to
exercise, and no delay in exercising, any right will operate as a waiver
thereof, nor will any single or partial exercise by such party of any right
preclude any other or future exercise thereof or the exercise of any other
right.
5. Severability. 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 unpaired thereby, and if any provision is
inapplicable to any person or circumstances, it shall nevertheless remain
applicable to all other persons and circumstances.
6. Entire Agreement; Amendments. This Agreement represents the entire
understanding of the parties hereto with regard to the subject matter contained
herein and may not be amended or modified in any manner except by a written
agreement executed by both parties.
7. Successors and Assigns. This Agreement shall extend to and shall be
binding upon the parties hereto, and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by either party
without the written consent of the other.
8. Governing Law; Consent to Jurisdiction; Waiver of Immunity; Jury Trial
Waiver. This Agreement shall be construed in accordance with the laws of the
State of New York, without regard to conflict of laws principles thereof Lender
hereby consents to the jurisdiction of a state or federal court situated in New
York City, New York in connection with any dispute arising hereunder. To the
extent that in any jurisdiction Lender may now or hereafter be entitled to
claim, for itself or its assets, immunity from suit, execution, attachment
(before or after judgment) or other legal process, Lender irrevocably agrees
not to claim, and it hereby waives, such immunity. Lender and Bank each hereby
irrevocably waives any and all rights to trial by jury in any legal proceeding
arising out of or relating to this Agreement.
9. No Third Party Beneficiaries. In performing hereunder, Bank is acting
solely on behalf of Lender and no contractual or service relationship shall be
deemed to be established hereby between Bank and any other person.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
11. Notice to Lender. Lender hereby acknowledges that Bank is subject to
federal laws, including the Customer Identification Program (CIP) requirements
under the USA PATRIOT Act and its implementing regulations, pursuant to which
Bank must obtain, verify and
12
record information that allows Bank to identify Lender. Accordingly, prior to
opening an Account hereunder Bank will ask Lender to provide certain
information including, but not limited to, Leader's name, physical address, tax
identification number and other information that will help Bank to identify and
verify Lender's identity such as organizational documents, certificate of good
standing, license to do business, or other pertinent identifying information.
Lender agrees that Bank cannot open an Account hereunder unless and until the
Bank verifies the Lender's identity in accordance with its CIP.
12. SIPA NOTICE. THE PROVISIONS OF THE SECURITIES INVESTOR PROTECTION ACT OF
1970 MAY NOT PROTECT LENDER WITH RESPECT TO LOANS HEREUNDER AND, THEREFORE, THE
COLLATERAL DELIVERED TO BANK AS AGENT FOR LENDER MAY CONSTITUTE THE ONLY SOURCE
OF SATISFACTION OF A BORROWER'S OBLIGATION IN THE EVENT SUCH BORROWER FAILS TO
RETURN THE LOANED SECURITIES.
13. Construction. This Agreement shall be deemed to be a separate agreement
between Bank and each Series listed on Exhibit A hereto, and each shall be a
separate Lender for purposes of this Agreement. Each reference to Lender shall
be deemed a reference solely to a particular Lender whose Securities are being
Loaned, and each reference to Loans, Collateral and Approved Investments shall
be deemed a reference to Loans, Collateral and Approved Investments with
respect to a particular Lender. The obligations of each Series shall be
satisfied solely out of the assets of such Series, and in no event shall any
Series be responsible or liable for any obligations of any other Series.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officers, thereunto duly authorized, as
of the day and year first above written.
BNY XXXXXXXX FUNDS, INC.,
on behalf of each of the Lenders
By:
------------------------
Title:
------------------------
THE BANK OF NEW YORK
By:
------------------------
Title:
------------------------
14
LENDERS
Each of the following Series of BNY Xxxxxxxx Funds, Inc. is a Lender under the
Securities Lending Agreement and Guaranty to which this Exhibit is attached:
BNY Xxxxxxxx Large Cap Equity Fund
BNY Xxxxxxxx Large Cap Growth Fund
BNY Xxxxxxxx Small Cap Growth Fund
BNY Xxxxxxxx International Equity Fund
BNY Xxxxxxxx Intermediate Investment Grade Fund
BNY Xxxxxxxx Treasury Money Fund
BNY Xxxxxxxx Large Cap Value Fund
BNY Xxxxxxxx S&P 500 Index Fund
BNY Xxxxxxxx US Bond Market Index Fund
BNY Xxxxxxxx Enhanced Income Fund
BNY Xxxxxxxx Multi Cap Equity Fund
BNY Xxxxxxxx High Yield Fund
BNY Xxxxxxxx Small Cap Core Equity Fund
LENDERS
Each of the following Series of BNY Xxxxxxxx Funds, Inc. is a Lender under the
Securities Lending Agreement and Guaranty to which this Exhibit is attached:
BNY Xxxxxxxx Large Cap Equity Fund
BNY Xxxxxxxx Large Cap Growth Fund
BNY Xxxxxxxx Small Cap Growth Fund
BNY Xxxxxxxx International Equity Fund
BNY Xxxxxxxx Intermediate Investment Grade Fund
BNY Xxxxxxxx Treasury Money Fund
BNY Xxxxxxxx Large Cap Value Fund
BNY Xxxxxxxx S&P 500 Index Fund
BNY Xxxxxxxx US Bond Market Index Fund
BNY Xxxxxxxx Enhanced Income Fund
BNY Xxxxxxxx Multi Cap Equity Fund
BNY Xxxxxxxx High Yield Fund
BNY Xxxxxxxx Small Cap Core Equity Fund
Dated: August __, 2006
BNY XXXXXXXX FUNDS, INC.,
on behalf of each of the Lenders
By: -----------------------------
Title: -----------------------------
THE BANK OF NEW YORK
By: -----------------------------
Title: -----------------------------
SCHEDULE I
APPROVED INVESTMENTS
The Lenders) signing below hereby authorize(s) the Bank to invest and reinvest
Cash Collateral in the following investments ("Approved Investments"). Ratings
descriptions specified in any category of investments listed below shall mean
the rating that is assigned to the investment at the time that it is acquired.
Investment
Units of beneficial interest of the BNY Institutional Cash Reserves Fund.
Repurchase agreements collateralized by Permitted Investments and entered into
with counterparties approved by The Bank of New York (but excluding The Bank of
New York and its affiliates). Permitted Investments shall be limited to:
(a) securities issued or fully guaranteed by the United States government or
any agency, instrumentality or establishment of the United States
government, and
(b) commercial paper, notes, bonds and other debt obligations that are
(i) rated in the highest rating category by Standard & Poor's and Xxxxx'x,
(ii) rated in the highest rating category by either Standard & Poor's or
Xxxxx'x if rated only one nationally recognized statistical rating
organization ("NRSRO"), or (iii) if not rated by any NRSRO, determined by
the Lender's investment adviser to be of comparable quality.
Dated: August __, 2006
BNY XXXXXXXX FUNDS, INC.,
By:
------------------------
Name:
------------------------
Title:
------------------------
SCHEDULE II
AGENT FEE
Agent's fee for each month during the term hereof shall be equal to seven basis
points (0.07%) of the weighted average daily Market Value of the Loaned
Securities during the preceding calendar month.
Dated: August __, 2006
BNY XXXXXXXX FUNDS, INC.,
on behalf of each of the Lenders
By:
------------------------
Name:
------------------------
Title:
------------------------
THE BANK OF NEW YORK
By:
------------------------
Name:
------------------------
Title:
------------------------
BNY INSTITUTIONAL CASH RESERVES FUND
a series of
BNY INSTITUTIONAL CASH RESERVES
SUBSCRIPTION AGREEMENT
for
REGISTERED INVESTMENT COMPANIES
The undersigned (the "Subscriber") desires to invest in Units of
Beneficial Interest ("Units") of BNY Institutional Cash Reserves Fund (the
"Portfolio"), a series of BNY Institutional Cash Reserves (the "Trust"). The
Bank of New York (the "Trustee"), a banking company organized under the laws of
the State of New York, is the investment manager, custodian and operating
trustee of the Portfolio. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Information Brochure, including the
related Supplemental Information Brochure, each dated December 31, 2002 (as may
be amended, restated or supplemented from time to time, collectively the
"Brochure").
The registered investment company Subscribers of the Units must be
defined as "accredited investors" under Rule 501(a)(l) of the Securities Act of
1933, as amended (the "Securities Act"), and be "qualified purchasers" as that
term is defined in section 2(a)(51) of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), as a result of the Trust's reliance
upon Section 3(c)(7) of the Investment Company Act as a basis for an exemption
from the registration requirements thereof.
The Subscriber irrevocably subscribes for Units of the Portfolio as set
forth below, subject to acceptance by the Trustee in its absolute discretion,
and agrees to be legally bound by the terms of this Subscription Agreement and
the Declaration of Trust establishing the Trust, dated December 31, 2002 (as
the same may be amended, restated or supplemented from time to time, the
"Declaration of Trust").
The Subscriber is furnishing the following information and making the
following representations and warranties to induce the Trust and the Trustee to
accept the Subscriber's subscription:
I. Identity of Subscriber; Qualification as Registered Investment Company
The Subscriber hereby represents and warrants that (i) it is an
"investment company," as that term is defined under Section 3(a)(1) of the
Investment Company Act of 1940, as amended (the "Investment Company Act"), that
has filed a registration statement under the Investment Company Act and the
Securities Act of 1933, as amended (the "Securities Act") that is currently
effective with the Securities and Exchange Commission, and (ii) as such it is
defined as an "accredited investor" under Rule 501(a)(1) of the Securities Act.
II. Receipt of Trust Documents
The Subscriber acknowledges receipt of a numbered copy of the Brochure
and, if requested, other materials that include, in addition to this
Subscription Agreement, the Declaration of Trust, and hereby adopts, accepts
and agrees to be bound by all the terms and provisions described therein.
III. Representations and Warranties
Subscribers who are unable to provide any of the representations and
warranties in this Section III may, depending upon the facts and circumstances,
be able to invest in the Portfolio. A Subscriber who is unable to provide any
representation or warranty should contact the Trustee who will, in consultation
with legal counsel, determine if alternate representations and warranties that
the Subscriber is able to provide will be sufficient. Subscribers signing this
Subscription Agreement without a written amendment or side letter approved in
advance by the Trustee hereby provide all of the following representations and
warranties.
Eligibility
Subscriptions will be accepted only from persons who "eligible
investors" as described in the Brochure. These are the minimum standards for an
investment in a Portfolio. An investment in a Portfolio should only be made by
investors who have reviewed carefully and understand fully the discussion under
the caption "Risk Factors and Investment Considerations" in the Brochure and
who are able to withstand the loss of their investment. The Subscriber agrees,
represents and warrants to the Trustee for the benefit of the Trust as follows:
A. Qualified Purchaser.
The Subscriber represents and warrants that the Subscriber qualifies as
a "qualified purchaser" as defined for purposes of Section 3(c)(7) of the
Investment Company Act because the Subscriber is a person (including a
company), acting for its own account or the accounts of other qualified
purchasers, who in the aggregate owns and invests on a discretionary basis not
less than $25,000,000 in Investments.
General Representations and Warranties
B. Ability to Bear Risk. The Subscriber is able to bear the economic risk of
the proposed investment in the Portfolio.
2
C. Investment Experience. The Subscriber, in reaching a decision to
subscribe, has such knowledge and experience in financial, tax and business
matters as to enable the Subscriber to evaluate the merits and risks of an
investment in the Portfolio and to make an informed investment decision with
respect thereto.
D. Sophistication of Subscriber. The Subscriber (a) satisfies any special
suitability or other applicable requirements of its jurisdiction of business
and the jurisdiction in which the transaction occurs; and (b) acknowledges that
meeting the criteria to be permitted to invest in the Portfolio in no way
implies that such investment is appropriate for the Subscriber.
E. Trustee's Discretion to Accept Subscriptions; Effectiveness of
Subscription. The Subscriber understands that the Trustee is not required to
accept the Subscriber's subscription or the subscription of any other person,
that the Trustee may accept in part and reject in part the Subscriber's
subscription or the subscription of any other person, and that the offering may
be suspended or terminated at any time. The Subscriber understands that the
Trustee may in its discretion accept subscriptions on other terms and
conditions.
F. Review of Offering Documents. The Subscriber is entering into this
Subscription Agreement relying solely on the terms and conditions of the
offering of the Units set forth in this Subscription Agreement and the
Brochure. The Subscriber received the Brochure and first learned of the Trust
in the jurisdiction listed as the principal place of business address below.
The Subscriber confirms that the Subscriber has carefully read and understood
these materials and has made further investigations as the Subscriber or the
Subscriber's representatives have deemed appropriate. Neither the Trustee nor
anyone else on the Trust's behalf has made any representations or warranties of
any kind or nature to induce the Subscriber to enter into this Subscription
Agreement except as specifically set forth in those documents. The Subscriber
is not relying upon the Trustee for guidance with respect to tax or other legal
considerations; and the Subscriber has been afforded an opportunity to ask
questions of, and receive answers from, the Trustee, or persons authorized to
act on its behalf, concerning the terms and conditions of the purchase of the
Units and has been afforded the opportunity to obtain any additional
information (including the Supplemental Information Brochure, the Declaration
of Trust and the Investment Management Agreement) necessary to verify the
accuracy of information otherwise furnished by the Trustee.
G. Non-Registration of Units. The Subscriber understands that the Units have
not been registered under the Securities Act in reliance upon an exemption from
registration, and that the Trust has not been registered, nor will it be, under
the Investment Company Act. The Subscriber understands that the Trustee has no
intention of registering the Trust, or any of its Units, with the Securities
and Exchange Commission or any state and is under no obligation to assist the
Subscriber in obtaining or complying with any exemption from registration. The
Subscriber understands that no federal or state agency has passed upon or made
any recommendation or endorsement of an investment in the Trust or the
Portfolio.
H. Ability to Invest. This purchase has been duly authorized by all
necessary internal action and will not violate any agreement to which the
Subscriber is a party. The Subscriber further represents and warrants that the
Subscriber has, and will provide promptly
3
upon request, appropriate evidence of, the authority of the individual
executing this Subscription Agreement to act on behalf of the Subscriber.
I. Taxes. The Subscriber certifies, under penalties of perjury, (a) that the
Subscriber's EIN, as represented by the Subscriber in this Subscription
Agreement is true and correct; (b) that the Subscriber is not subject to backup
withholding either because the Subscriber has not been notified that it is
subject to backup withholding as a result of a failure to report all interest
or dividends, or the IRS has notified the Subscriber that it is no longer
subject to backup withholding; (c) that the Subscriber's fiscal year-end as
represented in this Subscription Agreement is true and correct, and any change
in such fiscal year-end shall be reported promptly to the Trustee and (d) that
the Subscriber shall provide to the Trustee such tax related information as the
Trustee may reasonably request.
J. Investment Purpose. The Subscriber is not subscribing for the Units as
agent, nominee, or otherwise on behalf of, or for the account of any other
person or entity. The Subscriber is acquiring the Units for the Subscriber's
own account, does not have any contract, undertaking or arrangement with any
person or entity to sell, transfer or grant the Units, and is not acquiring the
Units of the Trust with a view to or for sale in connection with any
distribution of the Units. No other person or persons other than the Subscriber
will have a beneficial interest in the Units acquired (other than as a
shareholder, partner, member or other beneficial owner of equity interests in
the Subscriber).
K. Participation of Subscriber Shareholders in Investment. If the Subscriber
is an entity engaged primarily in investing or trading securities, the
shareholders, members, partners or other holders of equity or beneficial
interests in the Subscriber have not been provided the opportunity to decide
individually whether or not to participate, or the extent of their
participation, in the Subscriber's investment in the Trust (i.e., investors in
the Subscriber have not been permitted to determine whether their capital will
form part of the specific capital invested by the Subscriber in the Trust or
its Portfolio).
L. Size of Investment in Trust relative to Subscriber's Other Investments.
The value of the amount of the Subscriber's subscription to the Trust does will
not exceed 40% of the value of the Subscriber's total assets.
M. True and Correct Information. The Subscriber represents and warrants that
all information provided to the Trustee and the Trust concerning the
Subscriber, its financial position, and its knowledge of financial and business
matters, including, but not limited to, this Subscription Agreement, is true,
correct and complete as of the date hereof; and if there should be any changes
in this information, the Subscriber will immediately provide the Trustee with
that information in writing. The Subscriber consents to the disclosure of any
information, and any other information furnished to the Trustee or the Trust,
to any governmental authority, self regulatory organization or, to the extent
required by law, to any other person.
N. Reaffirmation of Representations and Warranties. The Subscriber hereby
agrees that any representation or warranty made hereunder will be deemed to be
reaffirmed by the Subscriber at any time the Subscriber makes an additional
investment in the Trust and the act of making any additional investments will
be evidence of such reaffirmation.
4
IV. Indemnification and Additional Provisions
A. Indemnification. The Subscriber agrees to indemnify, hold harmless and
reimburse the Trust, the Trustee, their beneficial owners, shareholders, and
their respective directors, officers, employees and agents for any loss,
damage, expense, liability, demand, charge or claim, of any kind or nature
whatsoever, asserted by any third party against the Trust or the Trustee with
respect to the acts, omissions, transactions, duties, obligations or
responsibilities of the Subscriber, its officers, directors, managers,
trustees, employees, agents, shareholders, members, beneficiaries, or partners
concerning this Subscription Agreement and the purchase of the Units pursuant
hereto, including without limitation those resulting from any inaccuracy in any
of its representations or breach of any of its warranties or representations
contained in this Subscription Agreement. Except as otherwise provided under
applicable law, including, without limitation, the Investment Advisers Act of
1940, as amended, and any other applicable federal and state securities laws,
the Subscriber shall indemnify and hold harmless the Trust and the Trustee from
and against all losses or liabilities (including, without limitation,
reasonable attorneys' fees) asserted by, or on behalf of, the Subscriber or any
beneficiary thereof against the Trust, the Trustee, their beneficial owners,
shareholders, or any of their officers, directors, employees, shareholders,
agents or controlling persons, in connection with this Subscription Agreement,
for any act taken or omitted in good faith in discharging their obligations
hereunder to the extent that such act or omission does not involve willful
misconduct, reckless disregard of their duties, negligence or violation of
applicable law.
B. Payment for Units. Pursuant to the power of attorney granted to the
Trustee by the Subscriber in Section IV.C below, the Trustee, as securities
lending agent, will cause the collateral received by the Subscriber in
securities lending transactions arranged by the Trustee to be invested in the
Portfolio.
C. Power of Attorney. The Subscriber hereby irrevocably constitutes and
empowers the Trustee in its capacity as securities lending agent to act alone
as the Subscriber's attorney-in fact with full power of substitution and with
full power and authority to execute, acknowledge and swear to the Declaration
of Trust and all instruments and file all documents requisite to carry out the
intention and purpose of this Subscription Agreement, including, without
limitation, all business certificates and other certificates and amendments
thereto to be executed and/or filed from time to time in accordance with
applicable laws. The foregoing appointment shall be deemed to be a power
coupled with an interest in recognition of the fact that the Subscriber and the
Trustee will be relying upon the power of the Trustee to act as contemplated by
this Subscription Agreement and the Declaration of Trust in such filing and
other action by the Trustee on behalf of the Subscriber. The foregoing power of
attorney shall be irrevocable and shall survive the bankruptcy, insolvency,
dissolution, or termination of the Subscriber.
D. Expenses. Each party hereto shall pay its own separate expenses relating
to this Subscription Agreement and the purchase of the Units.
E. Binding Effect and Assignability. This Subscription Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors, legal representatives
and assigns. The Subscriber agrees not to transfer or assign this Subscription
Agreement, or any of the Subscriber's interest herein.
5
F. Valid and Binding Agreement. This Subscription Agreement shall be valid
and binding against the Subscriber and enforceable against it in accordance
with its terms.
G. General. This Subscription Agreement: (a) shall be governed, construed
and enforced in accordance with the substantive law of New York, without regard
to the conflicts of law principles thereof; (b) shall survive the initial
subscription for the Units; (c) may be executed by the Subscriber and accepted
by the Trustee in two or more counterparts, each of which shall be an original
and all of which together shall constitute one instrument.
H. Headings. The headings in this Subscription Agreement are for convenience
of reference only, and shall not limit or otherwise affect the meaning hereof.
I. Scope of Agreement; Entire Agreement. The Trustee's services hereunder
relate only to the Subscriber's investment in the Portfolio of cash collateral
received in connection with securities lending transactions arranged by the
Trustee on behalf of the Subscriber pursuant to separate and distinct
securities lending agreements, and do not contemplate a full review, nor
assumption, of responsibility for the Subscriber's financial affairs. This
Subscription Agreement constitutes the entire agreement between the parties
hereto with respect to the Subscriber's investment in the Trust and no
amendment, alteration or modification of this Subscription Agreement shall be
valid unless expressed in a written instrument duly executed by the Subscriber
and the Trustee. If any of the provisions contained herein shall be deemed to
be unenforceable for any reason, the parties hereto agree that the court shall
read this Subscription Agreement to be enforceable to the greatest extent
possible.
6
IN WITNESS WHEREOF, the parties hereto have executed this Subscription
Agreement as of the __________ day of __________, ____.
SUBSCRIBER
Name:
------------------------
By: ------------------------
Name:
Title:
Mailing
Address/1/: ___________________________
___________________________
___________________________
Telephone: ___________________________
Facsimile: ___________________________
E-mail (optional): ___________________________
Year of organization: ___________________________
Place of organization and tax domicile: ___________________________
Employee Identification Number ("EIN"): ___________________________
Fiscal year-end: ___________________________
ACCEPTED BY:
BNY INSTITUTIONAL CASH RESERVES, on behalf of its series:
BNY INSTITUTIONAL CASH RESERVES FUND
By: BANK OF NEW YORK, as Trustee
By:
------------------------
Name:
Title:
--------
/1/ Please indicate the address to which Trust communications and notices
should be sent.
7
Subscription Agreement
Appendix A
DEFINITIONS
1. Investments. For the purposes of determining "qualified purchaser" status,
the term "Investments" means all of the following:
(i) Securities (as defined by Section 2(a)(1) of the Securities Act),
other than securities of an issuer that controls, is controlled by, or
is under common control with, the undersigned, unless the issuer of
such securities is any of the following:
(A) An investment company, a company that would be an investment
company under the Company Act but for the exclusions provided by
Sections 3(c)(1) through 3(c)(9) of the Company Act or the
exemptions provided by Rules 3a-6 or 3a-7, thereunder, or a
commodity pool;
(B) A company that files reports pursuant to Section 13 or
Section 15(d) of the Exchange Act or that has a class of
securities that are listed on a "designated offshore securities
market" as that term is defined by Regulation S under the
Securities Act; or
(C) A company with shareholders' equity of not less than $50 million
(determined in accordance with generally accepted accounting
principles) as reflected on the company's most recent financial
statements, provided that such financial statements present the
information as of a date within 16 months preceding the date on
which the undersigned invests in the Trust.
(ii)Real estate held for "Investment Purposes," as described below.
(iii)"Commodity Interests" held for Investment Purposes, as described
below. "Commodity Interests" means commodity futures contracts,
options on commodity futures contracts, and options on physical
commodities traded on or subject to the rules of:
(A) Any contract market designated for trading such transactions under
the CEA and the rules thereunder; or
(B) Any board of trade or exchange outside the United States, as
contemplated in Part 30 of the rules under the CEA.
(iv)"Physical Commodities" held for Investment Purposes, as described
below. "Physical Commodity" means any physical commodity with
8
respect to which a Commodity Interest is traded on a market specified in
(iii)(A) or (B) immediately above.
(v) To the extent not securities, "Financial Contracts" entered into for
Investment Purposes, as described below. "Financial Contracts" means
any arrangement that:
(A) Takes the form of an individually negotiated contract, agreement,
or option to buy, sell, lend, swap, or repurchase, or other
similar individually negotiated transaction commonly entered into
by participants in the financial markets;
(B) Is in respect of securities, commodities, currencies, interest or
other rates, other measures of value, or any other financial or
economic interest similar in purpose or function to any of the
foregoing; and
(C) Is entered into in response to a request from a counterparty for a
quotation, or is otherwise entered into and structured to
accommodate the objectives of the counterparty to such arrangement.
(vi)If the undersigned is a company that would be an investment company
but for the exclusions provided by Section 3(c)(7) of the Company Act
or a commodity pool, any amounts payable to the undersigned pursuant
to a firm agreement or similar binding commitment pursuant to which a
person has agreed to acquire an interest in, or make capital
contributions to, the undersigned upon demand of the undersigned; and
(vii)Cash and cash equivalents (including foreign currencies) held for
Investment Purposes, as described below, including:
(A) Bank deposits, certificates of deposit, bankers acceptances and
similar bank instruments held for Investment Purposes; and
(B) The net cash surrender value of an insurance policy.
Investment Purposes. For purposes of determining if an asset is held for
Investment Purposes, the following applies. Real estate is not considered to be
held for Investment Purposes by the undersigned if it is used by the
undersigned or a Related Person, as described below, for personal purposes or
as a place of business, or in connection with the conduct of the trade or
business of the undersigned or a Related Person, provided that real estate
owned by the undersigned who is engaged primarily in the business of investing,
trading or developing real estate in connection with such business may be
deemed to be held for Investment Purposes. Residential real estate is not
deemed to be used for personal purposes if deductions with respect to such real
estate are not disallowed by Section 280A of the Code. A Commodity Interest or
Physical Commodity owned,
9
or a financial contract entered into, by the undersigned who is engaged
primarily in the business of investing, reinvesting, or trading in Commodity
Interests, Physical Commodities or financial contracts in connection with such
business may be deemed to be held for Investment Purposes. The term "Related
Person" means a person who is related to the undersigned as a sibling, spouse
or former spouse, or is a direct lineal descendant or ancestor by birth or
adoption of the undersigned, or is a spouse of such descendant or ancestor,
provided that, in the case of a Family Company, a Related Person includes any
owner of the Family Company and any person who is a Related Person of such
owner.
Valuation. For purposes of determining whether the undersigned is a qualified
purchaser, the aggregate amount of Investments owned and invested on a
discretionary basis by the undersigned shall be the Investments' fair market
value on the most recent practicable date or their cost, provided that: in the
case of Commodity Interests, the amount of Investments shall be the value of
the initial margin or option premium deposited in connection with such
Commodity Interests; and, in each case, certain deductions (described below)
from the amount of Investments owned by the undersigned must be made. In
determining whether any person is a qualified purchaser there is deducted from
the amount of such person's Investments the amount of any outstanding
indebtedness incurred to acquire or for the purpose of acquiring the
Investments owned by such person. In determining whether a Family Company is a
qualified purchaser, additionally there shall be deducted from the value of
such Family Company's Investments any outstanding indebtedness incurred by an
owner of the Family Company to acquire such Investments.
Investments by Subsidiaries. For purposes of determining the amount of
Investments owned by a company under Question 3.1(b)(2) and (4) above, there
may be included Investments owned by majority-owned subsidiaries of the company
and Investments owned by a company ("Parent Company") of which the company is a
majority-owned subsidiary, or by a majority-owned subsidiary of the company and
other majority-owned subsidiaries of the Parent Company.
10
BNY Institutional Cash Reserves
BNY Institutional Cash Reserves Fund
Certificate of Non-Foreign Status
Section 1446 of the Internal Revenue Code of 1986, as amended (the
"Code"), requires that the BNY Institutional Cash Reserves Fund (the
"Portfolio"), a series of BNY Institutional Cash Reserves (the "Trust") pay a
withholding tax to the Internal Revenue Service ("IRS") with respect to a
Beneficial Owner's allocable share of the Portfolio's effectively connected
taxable income if the Beneficial Owner is a foreign person. To inform the
Portfolio that the provisions of Section 1446 do not apply to the undersigned
Beneficial Owner (or, if an entity, the undersigned authorized person, on
behalf of the Beneficial Owner), the undersigned Beneficial Owner hereby
certifies the following:
1. The Beneficial Owner named below is not a non-resident alien individual,
foreign corporation, foreign partnership, foreign trust or foreign estate
(as those terms are defined in the Code and the regulations thereunder);
2. The United States taxpayer identification number of the Beneficial Owner
named below is ______; and
3. The address (home address for an individual and office address for an
entity) is ________________.
The Beneficial Owner named below hereby agrees to notify the Trust
within sixty (60) days of the date it becomes a foreign person. The Beneficial
Owner named below understands that this certification may be disclosed to the
IRS by the Trust, on behalf of the Portfolio, and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, the undersigned declares that the
undersigned has examined this certification and to the best knowledge and
belief of the undersigned, it is true, correct and complete. The undersigned
further declares that the undersigned has the authority to sign this document
on behalf of the Beneficial Owner named below.
Date: ________________
BENEFICIAL OWNER
Name:
-----------------------------
Signature:
-----------------------------
Title:
-----------------------------
11
