[Execution Copy]
CUSTODY AGREEMENT
Agreement made as of this 27th day of July, 1992, between BNY
XXXXXXXX FUNDS, INC., a corporation organized and existing under the laws of the
State of Maryland and having its principal office and place of business at 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx (hereinafter called the "Corporation"), and
THE BANK OF NEW YORK, a New York corporation authorized to do a banking
business, having its principal office and place of business at 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called the "Custodian").
W I T N E S S E T H:
that for and in consideration of the mutual promises hereinafter set forth, the
Corporation and the Custodian agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the following
meanings:
1. "Authorized Person" shall be deemed to include any person,
whether or not such person is an Officer or employee of the Corporation, duly
authorized by the Board of Directors of the Corporation to give Oral
Instructions and Written Instructions on behalf of the Corporation and listed in
the Certificate annexed hereto as Appendix A or such other Certificate as may be
received by the Custodian from time to time.
2. "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for United States and federal agency securities, its successor
or successors and its nominee or nominees.
3. "Call Option" shall mean an exchange traded option with
respect to Securities other than Stock Index Options, Futures Contracts, and
Futures Contract Options entitling the holder, upon timely exercise and payment
of the exercise price, as specified therein, to purchase from the writer thereof
the specified underlying Securities.
4. "Certificate" shall mean any notice, instruction, or other
instrument in writing, authorized or required
by this Agreement to be given to the Custodian which is actually received by
the Custodian and signed on behalf of the Corporation by any two officers.
5. "Clearing Member" shall mean a registered broker-dealer
which is a clearing member under the rules of O.C.C. and a member of a national
securities exchange qualified to act as a custodian for an investment company,
or any broker-dealer reasonably believed by the Custodian to be such a clearing
member.
6. "Collateral Account" shall mean a segregated account so
denominated which is specifically allocated to a Series and pledged to the
Custodian as security for, and in consideration of, the Custodian's issuance of
(a) any Put Option guarantee letter or similar document described in paragraph 8
of Article V herein, or (b) any receipt described in Article V or VIII herein.
7. "Covered Call Option" shall mean an exchange traded option
entitling the holder, upon timely exercise and payment of the exercise price, as
specified therein, to purchase from the writer thereof the specified underlying
Securities (excluding Futures Contracts) which are owned by the writer thereof
and subject to appropriate restrictions.
8. "Depository" shall mean The Depository Trust Company
("DTC"), a clearing agency registered with the Securities and Exchange
Commission, its successor or successors and its nominee or nominees. The term
"Depository" shall further mean and include any other person authorized to act
as a depository under the Investment Company Act of 1940, its successor or
successors and its nominee or nominees, specifically identified in a certified
copy of a resolution of the Corporation's Board of Directors specifically
approving deposits therein by the Custodian.
9. "Financial Futures Contract" shall mean the firm commitment
to buy or sell fixed income securities including, without limitation, U.S.
Treasury Bills, U.S. Treasury Notes, U.S. Treasury Bonds, domestic bank
certificates of deposit, and Eurodollar certificates of deposit, during a
specified month at an agreed upon price.
10. "Futures Contract" shall mean a Financial Futures Contract
and/or Stock Index Futures Contracts.
11. "Futures Contract Option" shall mean an option with
respect to a Futures Contract.
12. "Margin Account" shall mean a segregated account in the
name of a broker, dealer, futures commission mer-
chant, or a Clearing Member, or in the name of the Corporation for the benefit
of a broker, dealer, futures commission merchant, or Clearing Member, or
otherwise, in accordance with an agreement between the Corporation, the
Custodian and a broker, dealer, futures commission merchant or a Clearing Member
(a "Margin Account Agreement"), separate and distinct from the custody account,
in which certain Securities and/or money of the Corporation shall be deposited
and withdrawn from time to time in connection with such transactions as the
Corporation may from time to time determine. Securities held in the Book-Entry
System or the Depository shall be deemed to have been deposited in, or withdrawn
from, a Margin Account upon the Custodian's effecting an appropriate entry in
its books and records.
13. "Money Market Security" shall be deemed to include,
without limitation, certain Reverse Repurchase Agreements, debt obligations
issued or guaranteed as to interest and principal by the government of the
United States or agencies or instrumentalities thereof, any tax, bond or revenue
anticipation note issued by any state or municipal government or public
authority, commercial paper, certificates of deposit and bankers' acceptances,
repurchase agreements with respect to the same and bank time deposits, where the
purchase and sale of such securities normally requires settlement in federal
funds on the same day as such purchase or sale.
14. "O.C.C." shall mean the Options Clearing Corporation, a
clearing agency registered under Section 17A of the Securities Exchange Act of
1934, its successor or successors, and its nominee or nominees.
15. "Officers" shall be deemed to include the President, any
Vice President, the Secretary, the Treasurer, any Assistant Secretary, any
Assistant Treasurer, and any other person or persons, whether or not any such
other person is an officer of the Corporation, duly authorized by the Board of
Directors of the Corporation to execute any Certificate, instruction, notice or
other instrument on behalf of the Corporation and listed in the Certificate
annexed hereto as Appendix B or such other Certificate as may be received by the
Custodian from time to time.
16. "Option" shall mean a Call Option, Covered Call Option,
Stock Index Option and/or a Put Option.
17. "Oral Instructions" shall mean verbal instructions
actually received by the Custodian from an Authorized Person or from a person
reasonably believed by the Custodian to be an Authorized Person.
18. "Put Option" shall mean an exchange traded option with
respect to Securities other than Stock Index Options, Futures Contracts, and
Futures Contract Options entitling the holder, upon timely exercise and tender
of the specified underlying Securities, to sell such Securities to the writer
thereof for the exercise price.
19. "Reverse Repurchase Agreement" shall mean an agreement
pursuant to which the Corporation sells Securities and agrees to repurchase
such Securities at a described or specified date and price.
20. "Security" shall be deemed to include, without
limitation, Money Market Securities, Call Options, Put Options, Stock Index
Options, Stock Index Futures Contracts, Stock Index Futures Contract Options,
Financial Futures Contracts, Financial Futures Contract Options, Reverse
Repurchase Agreements, common stocks and other securities having
characteristics similar to common stocks, preferred stocks, debt obligations
issued by state or municipal governments and by public authorities, (including,
without limitation, general obligation bonds, revenue bonds, industrial bonds
and industrial development bonds), bonds, debentures, notes, mortgages or other
obligations, any certificates, receipts, warrants or other instrument
representing rights to receive, purchase, sell or subscribe for the same, or
evidencing or representing any other rights or interest therein, or any
property or assets.
21. "Senior Security Account" shall mean an account
maintained and specifically allocated to a Series under the terms of this
Agreement as a segregated account, by recordation or otherwise, within the
custody account in which certain Securities and/or other assets of the
Corporation specifically allocated to such Series shall be deposited and
withdrawn from time to time in accordance with Certificates received by the
Custodian in connection with such transactions as the Corporation may from time
to time determine.
22. "Series" shall mean the various portfolios, if any, of
the Corporation as described from time to time in the current and effective
prospectus for the Corporation.
23. "Shares" shall mean the shares of capital stock of the
Corporation, each of which is allocated to a particular Series.
24. "Stock Index Futures Contract" shall mean a bilateral
agreement pursuant to which the parties agree to take or make delivery of an
amount of cash equal to a specified dollar amount times the difference between
the value of a particular stock index at the close of the last business day
of the contract and the price at which the futures contract is originally
struck.
25. "Stock Index Option" shall mean an exchange traded option
entitling the holder, upon timely exercise, to receive an amount of cash
determined by reference to the difference between the exercise price and the
value of the index on the date of exercise.
26. "Written Instructions" shall mean written communications
actually received by the Custodian from an Authorized Person or from a person
reasonably believed by the Custodian to be an Authorized Person by telex or any
other such system whereby the receiver of such communications is able to verify
by codes or otherwise with a reasonable degree of certainty the identity of the
sender of such communication.
ARTICLE II
APPOINTMENT OF CUSTODIAN
1. The Corporation hereby constitutes and appoints the
Custodian as custodian of the Securities and moneys at any time owned by the
Corporation during the period of this Agreement.
2. The Custodian hereby accepts appointment as such
custodian and agrees to perform the duties thereof as hereinafter set forth.
ARTICLE III
CUSTODY OF CASE AND SECURITIES
1. Except as otherwise provided in paragraph 7 of this Article
and in Article VIII, the Corporation will deliver or cause to be delivered to
the Custodian all Securities and all moneys owned by it, at any time during the
period of this Agreement, and shall specify with respect to such Securities and
money the Series to which the same are specifically allocated. The Custodian
shall segregate, keep and maintain the assets of the Series separate and apart.
The Custodian will not be responsible for any Securities and moneys not actually
received by it. The Custodian will be entitled to reverse any credits made on
the Corporation's behalf where such credits have been previously made and moneys
are not finally collected. The Corporation shall deliver to the Custodian a
certified resolution of the Board of Directors of the Corporation, substantially
in the form of Exhibit A hereto, approving, authorizing and instructing the
Custodian
on a continuous and on-going basis to deposit in the Book-Entry System all
Securities eligible for deposit therein, regardless of the Series to which the
same are specifically allocated and to utilize the Book-Entry System to the
extent possible in connection with its performance hereunder, including, without
limitation, in connection with settlements of purchases and sales of Securities,
loans of Securities and deliveries and returns of Securities collateral. Prior
to a deposit of Securities specifically allocated to a Series in the Depository,
the Corporation shall deliver to the Custodian a certified resolution of the
Board of Directors of the Corporation, substantially in the form of Exhibit B
hereto, approving, authorizing and instructing the Custodian on a continuous and
on-going basis until instructed to the contrary by a Certificate actually
received by the Custodian to deposit in the Depository all Securities
specifically allocated to such Series eligible for deposit therein, and to
utilize the Depository to the extent possible with respect to such Securities in
connection with its performance hereunder, including, without limitation, in
connection with settlements of purchases and sales of Securities, loans of
Securities, and deliveries and returns of Securities collateral. Securities and
moneys deposited in either the Book-Entry System or the Depository will be
represented in accounts which include only assets held by the Custodian for
customers, including, but not limited to, accounts in which the Custodian acts
in a fiduciary or representative capacity and will be specifically allocated on
the Custodian's books to the separate account for the applicable Series. Prior
to the Custodian's accepting, utilizing and acting with respect to Clearing
Member confirmations for Options and transactions in options for a Series as
provided in this Agreement, the Custodian shall have received a certified
resolution of the Corporation's Board of Directors, substantially in the form of
Exhibit C hereto, approving, authorizing and instructing the Custodian on a
continuous and on-going basis, until instructed to the contrary by a Certificate
actually received by the Custodian, to accept, utilize and act in accordance
with such confirmations as provided in this Agreement with respect to such
Series.
2. The Custodian shall establish and maintain separate
accounts, in the name of each Series, and shall credit to the separate account
for each Series all moneys received by it for the account of the Corporation
with respect to such Series. Money credited to a separate account for a Series
shall be disbursed by the Custodian only:
(a) As hereinafter provided;
(b) Pursuant to Certificates setting forth the name
and address of the person to whom the payment is to be
made, the Series account from which payment is to be made and the purpose for
which payment is to be made; or
(c) In payment of the fees and in reimbursement of the
expenses and liabilities of the Custodian attributable to such Series.
3. Promptly after the close of business on each day, the
Custodian shall furnish the Corporation with confirmations and a summary, on a
per Series basis, of all transfers to or from the account of the Corporation for
a Series, either hereunder or with any co-custodian or sub-custodian appointed
in accordance with this Agreement during said day. Where Securities are
transferred to the account of the Corporation for a Series, the Custodian shall
also by book-entry or otherwise identify as belonging to such Series a quantity
of Securities in a fungible bulk of Securities registered in the name of the
Custodian (or its nominee) or shown on the Custodian's account on the books of
the Book-Entry System or the Depository. At least monthly and from time to time,
the Custodian shall furnish the Corporation with a detailed statement, on a per
Series basis, of the Securities and moneys held by the Custodian for the
Corporation.
4. Except as otherwise provided in paragraph 7 of this Article
and in Article VIII, all Securities held by the Custodian hereunder, which are
issued or issuable only in bearer form, except such Securities as are held in
the Book-Entry System, shall be held by the Custodian in that form; all other
Securities held hereunder may be registered in the name of the Corporation, in
the name of any duly appointed registered nominee of the Custodian as the
Custodian may from time to time determine, or in the name of the Book-Entry
System or the Depository or their successor or successors, or their nominee or
nominees. The Corporation agrees to furnish to the Custodian appropriate
instruments to enable the Custodian to hold or deliver in proper form for
transfer, or to register in the name of its registered nominee or in the name of
the Book-Entry System or the Depository any Securities which it may hold
hereunder and which may from time to time be registered in the name of the
Corporation. The Custodian shall hold all such Securities specifically allocated
to a Series which are not held in the Book-Entry System or in the Depository in
a separate account in the name of such Series physically segregated at all times
from those of any other person or persons.
5. Except as otherwise provided in this Agreement and unless
otherwise instructed to the contrary by a Certificate, the Custodian by itself,
or through the use of the Book-Entry System or the Depository with respect to
Securities held hereunder and therein deposited, shall with respect to
all Securities held for the Corporation hereunder in accordance with preceding
paragraph 4:
(a) Collect all income due or payable;
(b) Present for payment and collect the amount payable
upon such Securities which are called, but only if either (i) the Custodian
receives a written notice such call, or (ii) notice of such call appears in one
or more of the publications listed in Appendix C annexed hereto, which may be
amended at any time by the Custodian without the prior notification or consent
of the Corporation;
(c) Present for payment and collect the amount payable
upon all Securities which mature;
(d) Surrender Securities in temporary form for definitive
Securities;
(e) Execute, as custodian, any necessary declarations or
certificates of ownership under the Federal Income Tax Laws or the laws or
regulations of any other taxing authority now or hereafter in effect; and
(f) Hold directly, or through the Book-Entry System or the
Depository with respect to Securities therein deposited, for the account of a
Series, all rights and similar securities issued with respect to any Securities
held by the Custodian for such Series hereunder.
6. Upon receipt of a Certificate and not otherwise, the
Custodian, directly or through the use of the Book-Entry System or the
Depository, shall:
(a) Execute and deliver to such persons as may be
designated in such Certificate proxies, consents, authorizations, and any
other instruments whereby the authority of the Corporation as owner of any
Securities held by the Custodian hereunder for the Series specified in such
Certificate may be exercised;
(b) Deliver any Securities held by the Custodian hereunder
for the Series specified in such Certificate in exchange for other Securities or
cash issued or paid in connection with the liquidation, reorganization,
refinancing, merger, consolidation or recapitalization of any corporation, or
the exercise of any conversion privilege and receive and hold hereunder
specifically allocated to such Series any cash or other Securities received in
exchange;
(c) Deliver any Securities held by the Custodian hereunder
for the Series specified in such Certificate to
any protective committee, reorganization committee or other person in connection
with the reorganization, refinancing, merger, consolidation, recapitalization or
sale of assets of any corporation, and receive and hold hereunder specifically
allocated to such Series such certificates of deposit, interim receipts or other
instruments or documents as may be issued to it to evidence such delivery;
(d) Make such transfers or exchanges of the assets of the
Series specified in such Certificate, and take such other steps as shall be
stated in such Certificate to be for the purpose of effectuating any duly
authorized plan of liquidation, reorganization, merger, consolidation or
recapitalization of the Corporation; and
(e) Present for payment and collect the amount payable upon
Securities not described in preceding paragraph 5(b) of this Article which may
be called as specified in the Certificate.
7. Notwithstanding any provision elsewhere contained herein,
the Custodian shall not be required to obtain possession of any instrument or
certificate representing any Futures Contract, any Option, or any Futures
Contract Option until after it shall have determined, or shall have received a
Certificate from the Corporation stating, that any such instruments or
certificates are available. The Corporation shall deliver to the Custodian such
a Certificate no later than the business day preceding the availability of any
such instrument or certificate. Prior to such availability, the Custodian shall
comply with Section 17(f) of the Investment Company Act of 1940, as amended, in
connection with the purchase, sale, settlement, closing out or writing of
Futures Contracts, Options, or Futures Contract Options by making payments or
deliveries specified in Certificates received by the Custodian in connection
with any such purchase, sale, writing, settlement or closing out upon its
receipt from a broker, dealer, or futures commission merchant of a statement or
confirmation reasonably believed by the Custodian to be in the form customarily
used by brokers, dealers, or future commission merchants with respect to such
Futures Contracts, Options, or Futures Contract Options, as the case may be,
confirming that such Security is held by such broker, dealer or futures
commission merchant, in book-entry form or otherwise, in the name of the
Custodian (or any nominee of the Custodian) as custodian for the Corporation;
provided, however, that notwithstanding the foregoing, payments to or deliveries
from the Margin Account, and payments with respect to Securities to which a
Margin Account relates, shall be made in accordance with the terms and
conditions of the Margin Account Agreement. Whenever any such instruments or
certificates are available, the Custodian shall,
notwithstanding any provision in this Agreement to the contrary, make payment
for any Futures Contract, Option, or Futures Contract Option for which such
instruments or such certificates are available only against the delivery to the
Custodian of such instrument or such certificate, and deliver any Futures
Contract, Option or Futures Contract Option for which such instruments or such
certificates are available only against receipt by the Custodian of payment
therefor. Any such instrument or certificate delivered to the Custodian shall be
held by the Custodian hereunder in accordance with, and subject to, the
provisions of this Agreement.
ARTICLE IV
PURCHASE AND SALE OF INVESTMENTS OF THE CORPORATION
OTHER THAN OPTIONS, FUTURES CONTRACTS AND
FUTURES CONTRACT OPTIONS
1. Promptly after each purchase of Securities by the
Corporation, other than a purchase of an Option, a Futures Contract, or a
Futures Contract Option, the Corporation shall deliver to the Custodian (i) with
respect to each purchase of Securities which are not Money Market Securities, a
Certificate, and (ii) with respect to each purchase of Money Market Securities,
a Certificate, Oral Instructions or Written Instructions, specifying with
respect to each such purchase: (a) the Series to which such Securities are to be
specifically allocated; (b) the name of the issuer and the title of the
Securities; (c) the number of shares or the principal amount purchased and
accrued interest, if any; (d) the date of purchase and settlement; (e) the
purchase price per unit; (f) the total amount payable upon such purchase; (g)
the name of the person from whom or the broker through whom the purchase was
made, and the name of the clearing broker, if any; and (h) the name of the
broker to whom payment is to be made. The Custodian shall, upon receipt of
Securities purchased by or for the Corporation, pay to the broker specified in
the Certificate out of the moneys held for the account of such Series the total
amount payable upon such purchase, provided that the same conforms to the total
amount payable as set forth in such Certificate, Oral Instructions or Written
Instructions.
2. Promptly after each sale of Securities by the Corporation,
other than a sale of any Option, Futures Contract, Futures Contract Option, or
any Reverse Repurchase Agreement, the Corporation shall deliver to the Custodian
(i) with respect to each sale of Securities which are not Money Market
Securities, a Certificate, and (ii) with respect to each sale of Money Market
Securities, a Certificate, Oral Instructions or Written Instructions, specifying
with respect
to each such sale: (a) the Series to which such Securities were specifically
allocated; (b) the name of the issuer and the title of the Security; (c) the
number of shares or principal amount sold, and accrued interest, if any; (d) the
date of sale; (e) the sale price per unit; (f) the total amount payable to the
Corporation upon such sale; (g) the name of the broker through whom or the
person to whom the sale was made, and the name of the clearing broker, if any;
and (h) the name of the broker to whom the Securities are to be delivered. The
Custodian shall deliver the Securities specifically allocated to such Series to
the broker specified in the Certificate against payment of the total amount
payable to the Corporation upon such sale, provided that the same conforms to
the total amount payable as set forth in such Certificate, Oral Instructions or
Written Instructions.
ARTICLE V
OPTIONS
1. Promptly after the purchase of any Option by the
Corporation, the Corporation shall deliver to the Custodian a Certificate
specifying with respect to each Option purchased: (a) the Series to which such
Option is specifically allocated; (b) the type of Option (put or call); (c) the
name of the issuer and the title and number of shares subject to such Option
or, in the case of a Stock Index Option, the stock index to which such Option
relates and the number of Stock Index Options purchased; (d) the expiration
date; (e) the exercise price; (f) the dates of purchase and settlement; (g) the
total amount payable by the Corporation in connection with such purchase; (h)
the name of the Clearing Member through whom such Option was purchased; and (i)
the name of the broker to whom payment is to be made. The Custodian shall pay,
upon receipt of a Clearing Member's statement confirming the purchase of such
Option held by such Clearing Member for the account of the Custodian (or any
duly appointed and registered nominee of the Custodian) as custodian for the
Corporation, out of moneys held for the account of the Series to which such
Option is to be specifically allocated, the total amount payable upon such
purchase to the Clearing Member through whom the purchase was made, provided
that the same conforms to the total amount payable as set forth in such
Certificate.
2. Promptly after the sale of any Option purchased by the
Corporation pursuant to paragraph 1 hereof, the Corporation shall deliver to the
Custodian a Certificate specifying with respect to each such sale: (a) the
Series to which such Option was specifically allocated; (b) the type of Option
(put or call) (c) the name of the issuer and the title
and number of shares subject to such Option or, in the case of a Stock Index
Option, the stock index to which such Option relates and the number of Stock
Index Options sold; (d) the date of sale; (e) the sale price; (f) the date of
settlement; (g) the total amount payable to the Corporation upon such sale; and
(h) the name of the Clearing Member through whom the sale was made. The
Custodian shall consent to the delivery of the Option sold by the Clearing
Member which previously supplied the confirmation described in preceding
paragraph 1 of this Article with respect to such Option against payment to the
Custodian of the total amount payable to the Corporation, provided that the same
conforms to the total amount payable as set forth in such Certificate.
3. Promptly after the exercise by the Corporation of any Call
Option purchased by the Corporation pursuant to paragraph 1 hereof, the
Corporation shall deliver to the Custodian a Certificate specifying with respect
to such Call Option: (a) the Series to which such Call Option was specifically
allocated; (b) the name of the issuer and the title and number of shares subject
to the Call Option; (c) the expiration date; (d) the date of exercise and
settlement; (e) the exercise price per share; (f) the total amount to be paid by
the Corporation upon such exercise; and (g) the name of the Clearing Member
through whom such Call Option was exercised. The Custodian shall, upon receipt
of the Securities underlying the Call Option which was exercised, pay out of the
moneys held for the account of the Series to which such Call Option was
specifically allocated the total amount payable to the Clearing Member through
whom the Call Option was exercised, provided that the same conforms to the total
amount payable as set forth in which Certificate.
4. Promptly after the exercise by the Corporation of any Put
Option purchased by the Corporation pursuant to paragraph 1 hereof, the
Corporation shall deliver to the Custodian a Certificate specifying with respect
to such Put Option: (a) the Series to which such Put Option was specifically
allocated; (b) the name of the issuer and the title and number of shares subject
to the Put Option; (c) the expiration date; (d) the date of exercise and
settlement; (e) the exercise price per share; (f) the total amount to be paid to
the Corporation upon such exercise; and (g) the name of the Clearing Member
through whom such Put Option was exercised. The Custodian shall, upon receipt of
the amount payable upon the exercise of the Put Option, deliver or direct the
Depository to deliver the Securities specifically allocated to such Series,
provided the same conforms to the amount payable to the Corporation as set forth
in such Certificate.
5. Promptly after the exercise by the Corporation of any Stock
Index Option purchased by the Corporation
pursuant to paragraph 1 hereof, the Corporation shall deliver to the Custodian a
Certificate specifying with respect to such Stock Index Option: (a) the Series
to which such Stock Index Option was specifically allocated; (b) the type of
Stock Index Option (put or call); (c) the number of Options being exercised; (d)
the stock index to which such Option relates; (e) the expiration date; (f) the
exercise price; (g) the total amount to be received by the Corporation in
connection with such exercise; and (h) the Clearing Member from whom such
payment is to be received.
6. Whenever the Corporation writes a Covered Call Option, the
Corporation shall promptly deliver to the Custodian a Certificate specifying
with respect to such Covered Call Option: (a) the Series for which such Covered
Call Option was written; (b) the name of the issuer and the title and number of
shares for which the Covered Call Option was written and which underlie the
same; (c) the expiration date; (d) the exercise price; (e) the premium to be
received by the Corporation; (f) the date such Covered Call Option was written;
and (g) the name of the Clearing Member through whom the premium is to be
received. The Custodian shall deliver or cause to be delivered, in exchange for
receipt of the premium specified in the Certificate with respect to such Covered
Call option, such receipts as are required in accordance with the customs
prevailing among Clearing Members dealing in Covered Call Options and shall
impose, or direct the Depository to impose, upon the underlying Securities
specified in the Certificate specifically allocated to such Series such
restrictions as may be required by such receipts. Notwithstanding the foregoing,
the Custodian has the right, upon prior written notification to the Corporation,
at any time to refuse to issue any receipts for Securities in the possession of
the Custodian and not deposited with the Depository underlying a Covered Call
Option.
7. Whenever a Covered Call Option written by the Corporation
and described in the preceding paragraph of this Article is exercised, the
Corporation shall promptly deliver to the Custodian a Certificate instructing
the Custodian to deliver, or to direct the Depository to deliver, the Securities
subject to such Covered Call Option and specifying: (a) the Series for which
such Covered Call Option was written; (b) the name of the issuer and the title
and number of shares subject to the Covered Call Option; (c) the Clearing Member
to whom the underlying Securities are to be delivered; and (d) the total amount
payable to the Corporation upon such delivery. Upon the return and/or
cancellation of any receipts delivered pursuant to paragraph 6 of this Article,
the Custodian shall deliver, or direct the Depository to deliver, the underlying
Securities as specified in the Certificate
against payment of the amount to be received as set forth in such Certificate.
8. Whenever the Corporation writes a Put Option, the
Corporation shall promptly deliver to the Custodian a Certificate specifying
with respect to such Put Option: (a) the Series for which such Put Option was
written; (b) the name of the issuer and the title and number of shares for which
the Put Option is written and which underlie the same; (c) the expiration date;
(d) the exercise price; (e) the premium to be received by the Corporation; (f)
the date such Put Option is written; (g) the name of the Clearing Member through
whom the premium is to be received and to whom a Put Option guarantee letter is
to be delivered; (h) the amount of cash, and/or the amount and kind of
Securities, if any, specifically allocated to such Series to be deposited in the
Senior Security Account for such Series; and (i) the amount of cash and/or the
amount and kind of Securities specifically allocated to such Series to be
deposited into the Collateral Account for such Series. The Custodian shall,
after making the deposits into the Collateral Account specified in the
Certificate, issue a Put Option guarantee letter substantially in the form
utilized by the Custodian on the date hereof, and deliver the same to the
Clearing Member specified in the Certificate against receipt of the premium
specified in said Certificate. Notwithstanding the foregoing, the Custodian
shall be under no obligation to issue any Put Option guarantee letter or similar
document if it is unable to make any of the representations contained therein.
9. Whenever a Put Option written by the Corporation and
described in the preceding paragraph is exercised, the Corporation shall
promptly deliver to the Custodian a Certificate specifying: (a) the Series to
which such Put Option was written; (b) the name of the issuer and title and
number of shares subject to the Put Option; (c) the Clearing Member from whom
the underlying Securities are to be received; (d) the total amount payable by
the Corporation upon such delivery; (e) the amount of cash and/or the amount and
kind of Securities specifically allocated to such Series to be withdrawn from
the Collateral Account for such Series; and (f) the amount of cash and/or the
amount and kind of Securities, specifically allocated to such Series, if any, to
be withdrawn from the Senior Security Account. Upon the return and/or
cancellation of any Put Option guarantee letter or similar document issued by
the Custodian in connection with such Put Option, the Custodian shall pay out of
the moneys held for the account of the Series to which such Put Option was
specifically allocated the total amount payable to the Clearing Member specified
in the Certificate against delivery of such Securities, and shall make the
withdrawals specified in such Certificate.
10. Whenever the Corporation writes a Stock Index Option, the
Corporation shall promptly deliver to the Custodian a Certificate specifying
with respect to such Stock Index Option: (a) the Series for which such Stock
Index Option was written; (b) whether such Stock Index Option is a put or a
call; (c) the number of options written; (d) the stock index to which such
Option relates; (e) the expiration date; (f) the exercise price; (g) the
Clearing Member through whom such Option was written; (h) the premium to be
received by the Corporation; (i) the amount of cash and/or the amount and kind
of Securities, if any, specifically allocated to such Series to be deposited in
the Senior Security Account for such Series; (j) the amount of cash and/or the
amount and kind of Securities, if any specifically allocated to such Series to
be deposited in the Collateral Account for such Series; and (k) the amount of
cash and/or the amount and kind of Securities, if any specifically allocated to
such Series to be deposited in a Margin Account, and the name in which such
account is to be or has been established. The Custodian shall, upon receipt of
the premium specified in the Certificate, make the deposits, if any, into the
Senior Security Account specified in the Certificate, and either (1) deliver
such receipts, if any, which the Custodian has specifically agreed to issue,
which the Custodian has specifically agreed to issue, which are in accordance
with the customs prevailing among Clearing Members in Stock Index Options and
make the deposits into the Collateral Account specified in the Certificate, or
(2) make the deposits into the Margin Account specified in the Certificate.
11. Whenever a Stock Index Option written by the Corporation
and described in the preceding paragraph of this Article is exercised, the
Corporation shall promptly deliver to the Custodian a Certificate specifying
with respect to such Stock Index Option: (a) the Series for which such Stock
Index Option was written; (b) such information as may be necessary to identify
the Stock Index Option being exercised; (c) the Clearing Member through whom
such Stock Index Option is being exercised; (d) the total amount payable upon
such exercise, and whether such amount is to be paid by or to the Corporation;
(e) the amount of cash and/or amount and kind of Securities, if any, to be
withdrawn from the Margin Account; and (f) the amount of cash and/or amount and
kind of Securities, if any, to be withdrawn from the Senior Security Account
for such Series; and the amount of cash and/or the amount and kind of
Securities, if any, to be withdrawn from the Collateral Account for such
Series. Upon the return and/or cancellation of the receipt, if any, delivered
pursuant to the preceding paragraph of this Article, the Custodian shall pay
out of the moneys held for the account of the Series to which such Stock Index
Option was specifically allocated to
the Clearing Member specified in the Certificate the total amount payable, if
any, as specified therein.
12. Whenever the Corporation purchases any Option identical to
a previously written Option described in paragraphs 6, 8 or 10 of this Article
in a transaction expressly designated as a "Closing Purchase Transaction" in
order to liquidate its position as a writer of an Option, the Corporation shall
promptly deliver to the Custodian a Certificate specifying with respect to the
Option being purchased: (a) that the transaction is a Closing Purchase
Transaction; (b) the Series for which the Option was written; (c) the name of
the issuer and the title and number of shares subject to the Option, or, in the
case of a Stock Index Option, the stock index to which such Option relates and
the number of Options held; (d) the exercise price; (e) the premium to be paid
by the Corporation; (f) the expiration date; (g) the type of Option (put or
call); (h) the date of such purchase; (i) the name of the Clearing Member to
whom the premium is to be paid; and (j) the amount of cash and/or the amount and
kind of Securities, if any, to be withdrawn from the Collateral Account, a
specified margin Account, or the Senior Security Account for such Series. Upon
the Custodian's payment of the premium and the return and/or cancellation of any
receipt issued pursuant to paragraphs 6, 8 or 10 of this Article with respect to
the Option being liquidated through the Closing Purchase Transaction, the
Custodian shall remove, or direct the Depository to remove, the previously
imposed restrictions on the Securities underlying the Call Option.
13. Upon the expiration, exercise or consummation of a Closing
Purchase Transaction with respect to any Option purchased or written by the
Corporation and described in this Article, the Custodian shall delete such
Option from the statements delivered to the Corporation pursuant to paragraph 3
of Article III herein, and upon the return and/or cancellation of any receipts
issued by the Custodian, shall make such withdrawals from the Collateral
Account, and the Margin Account and/or the Senior Security Account as may be
specified in a Certificate received in connection with such expiration,
exercise, or consummation.
ARTICLE VI
FUTURES CONTRACTS
1. Whenever the Corporation shall enter into a Futures
Contract, the Corporation shall deliver to the Custodian a Certificate
specifying with respect to such Futures Contract (or with respect to any number
of identical Futures Contract(s)): (a) the Series for which the Futures
Contract is being entered; (b) the category of Futures Contract (the name of the
underlying stock index or financial instrument); (c) the number of identical
Futures Contracts entered into; (d) the delivery or settlement date of the
Futures Contracts(s); (e) the date the Futures Contract(s) was (were) entered
into and the maturity date; (f) whether the Corporation is buying (going long)
or selling (going short) on such Futures Contract(s); (g) the amount of cash
and/or the amount and kind of Securities, if any, to be deposited in the Senior
Security Account for such Series; (h) the name of the broker, dealer, or futures
commission merchant through whom the Futures Contract was entered into; and (i)
the amount of fee or commission, if any, to be paid and the name of the broker,
dealer, or futures commission merchant to whom such amount is to be paid. The
Custodian shall make the deposits, if any, to the Margin Account in accordance
with the terms and conditions of the Margin Account Agreement. The Custodian
shall make payment out of the moneys specifically allocated to such Series of
the fee or commission, if any, specified in the Certificate and deposit in the
Senior Security Account for such Series the amount of cash and/or the amount and
kind of Securities specified in said Certificate.
2. (a) Any variation margin payment or similar payment
required to be made by the Corporation to a broker, dealer, or futures
commission merchant with respect to an outstanding Futures Contract shall be
made by the Custodian in accordance with the terms and conditions of the Margin
Account Agreement.
(b) Any variation margin payment or similar payment from a
broker, dealer, or futures commission merchant to the Corporation with respect
to an outstanding Futures Contract shall be received and dealt with by the
Custodian in accordance with the terms and conditions of the Margin Account
Agreement.
3. Whenever a Futures Contract held by the Custodian hereunder
is retained by the Corporation until delivery or settlement is made on such
Futures Contract, the Corporation shall deliver to the Custodian a Certificate
specifying: (a) the Futures Contract and the Series to which the same relates;
(b) with respect to a Stock Index Futures Contract, the total cash settlement
amount to be paid or received, and with respect to a Financial Futures Contract,
the Securities and/or amount of cash to be delivered or received; (c) the
broker, dealer, or futures commission merchant to or from whom payment or
delivery is to be made or received; and (d) the amount of cash and/or Securities
to be withdrawn from the Senior Security Account for such Series. The Custodian
shall make the payment or delivery specified in the Certificate, and delete such
Futures Contract from the
statements delivered to the Corporation pursuant to paragraph 3 of Article III
herein.
4. Whenever the Corporation shall enter into a Futures
Contract to offset a Futures Contract held by the Custodian hereunder, the
Corporation shall deliver to the Custodian a Certificate specifying: (a) the
items of information required in a Certificate described in paragraph 1 of this
Article, and (b) the Futures Contract being offset. The Custodian shall make
payment out of the money specifically allocated to such Series of the fee or
commission, if any, specified in the Certificate and delete the Futures Contract
being offset from the statements delivered to the Corporation pursuant to
paragraph 3 of Article III herein, and make such withdrawals from the Senior
Security Account for such Series as may be specified in such Certificate. The
withdrawals, if any, to be made from the Margin Account shall be made by the
Custodian in accordance with the terms and conditions of the Margin Account
Agreement.
ARTICLE VII
FUTURES CONTRACT OPTIONS
1. Promptly after the purchase of any Futures Contract Option
by the Corporation, the Corporation shall promptly deliver to the Custodian a
Certificate specifying with respect to such Futures Contract Option: (a) the
Series to which such Option is specifically allocated; (b) the type of Futures
Contract Option (put or call); (c) the type of Futures Contract and such other
information as may be necessary to identify the Futures Contract underlying the
Futures Contract Option purchased; (d) the expiration date; (e) the exercise
price; (f) the dates of purchase and settlement; (g) the amount of premium to be
paid by the Corporation upon such purchase; (h) the name of the broker or
futures commission merchant through whom such option was purchased; and (i) the
name of the broker, or futures commission merchant, to whom payment is to be
made. The Custodian shall pay out of the moneys specifically allocated to such
Series, the total amount to be paid upon such purchase to the broker or futures
commissions merchant through whom the purchase was made, provided that the same
conforms to the amount set forth in such Certificate.
2. Promptly after the sale of any Futures Contract Option
purchased by the Corporation pursuant to paragraph 1 hereof, the Corporation
shall promptly deliver to the Custodian a Certificate specifying with respect to
each such sale: (a) the Series to which such Futures Contract Option was
specifically allocated; (b) the type of Futures Contract
Option (put or call); (c) the type of Futures Contract and such other
information as may be necessary to identify the Futures Contract underlying the
Futures Contract Option; (d) the date of sale; (e) the sale price; (f) the date
of settlement; (g) the total amount payable to the Corporation upon such sale;
and (h) the name of the broker or futures commission merchant through whom the
sale was made. The Custodian shall consent to the cancellation of the Futures
Contract Option being closed against payment to the Custodian of the total
amount payable to the Corporation, provided the same conforms to the total
amount payable as set forth in such Certificate.
3. Whenever a Futures Contract Option purchased by the
Corporation pursuant to paragraph 1 is exercised by the Corporation, the
Corporation shall promptly deliver to the Custodian a Certificate specifying:
(a) the Series to which such Futures Contract Option was specifically allocated;
(b) the particular Futures Contract Option (put or call) being exercised; (c)
the type of Futures Contract underlying the Futures Contract Option; (d) the
date of exercise; (e) the name of the broker or futures commission merchant
through whom the Futures Contract Option is exercised; (f) the net total amount,
if any, payable by the Corporation; (g) the amount, if any, to be received by
the Corporation; and (h) the amount of cash and/or the amount and kind of
Securities to be deposited in the Senior Security Account for such Series. The
Custodian shall make, out of the moneys and Securities specifically allocated to
such Series, the payments, if any, and the deposits, if any, into the Senior
Security Account as specified in the Certificate. The deposits, if any, to be
made to the Margin Account shall be made by the Custodian in accordance with the
terms and conditions of the Margin Account Agreement.
4. Whenever the Corporation writes a Futures Contract Option,
the Corporation shall promptly deliver to the Custodian a Certificate specifying
with respect to such Futures Contract Option: (a) the Series for which such
Futures Contract Option was written; (b) the types of Futures Contract Option
(put or call); (c) the type of Futures Contract and such other information as
may be necessary to identify the Futures Contract underlying the Futures
Contract Option; (d) the expiration date; (e) the exercise price; (f) the
premium to be received by the Corporation; (g) the name of the broker or futures
commission merchant through whom the premium is to be received; and (h) the
amount of cash and/or the amount and kind of Securities, if any, to be deposited
in the Senior Security Account for such Series. The Custodian shall, upon
receipt of the premium specified in the Certificate, make out of the moneys and
Securities specifically allocated to such Series the deposits into the Senior
Security
Account, if any as specified in the Certificate. The deposits, if any, to be
made to the Margin Account shall be made by the Custodian in accordance with the
terms and conditions of the Margin Account Agreement.
5. Whenever a Futures Contract Option written by the
Corporation which is a call is exercised, the Corporation shall promptly deliver
to the Custodian a Certificate specifying: (a) the Series to which such Futures
Contract Option was specifically allocated; (b) the particular Futures Contract
Option exercised; (c) the type of Futures Contract underlying the Futures
Contract Option; (d) the name of the broker or futures commission merchant
through whom such Futures Contact Option was exercised; (e) the net total
amount, if any, payable to the Corporation upon such exercise; (f) the net total
amount, if any, payable by the Corporation upon such exercise; and (g) the
amount of cash and/or the amount and kind of Securities to be deposited in the
Senior Security Account for such Series. The Custodian shall, upon its receipt
of the net total amount payable to the Corporation, if any, specified in such
Certificate make the payments, if any, and the deposits, if any, into the Senior
Security Account as specified in the Certificate. The deposits, if any, to be
made to the Margin Account shall be made by the Custodian in accordance with the
terms and conditions of the Margin Account Agreement.
6. Whenever a Futures Contract Option which is written by the
Corporation and which is a put is exercised, the Corporation shall promptly
deliver to the Custodian a Certificate specifying: (a) the Series to which such
Option was specifically allocated; (b) the particular Futures Contract Option
exercised; (c) the type of Futures Contract underlying such Futures Contract
Option; (d) the name of the broker or futures commission merchant through whom
such Futures Contract Option is exercised; (e) the net total amount, if any,
payable to the Corporation upon such exercise; (f) the net total amount, if any,
payable by the Corporation upon such exercise; and (g) the amount and kind of
Securities and/or cash to be withdrawn from or deposited in the Senior Security
Account for such Series, if any. The Custodian shall, upon its receipt of the
net total amount payable to the Corporation, if any, specified in the
Certificate, make out of the moneys and Securities specifically allocated to
such Series, the payments, if any, and the deposits, if any, into the Senior
Security Account as specified in the Certificate. The deposits to and/or
withdrawals from the Margin Account, if any, shall be made by the Custodian in
accordance with the terms and conditions of the Margin Account Agreement.
7. Whenever the Corporation purchases any Futures Contract
Option identical to a previously written Futures
Contract Option described in this Article in order to liquidate its position as
a writer of such Futures Contract Option, the Corporation shall promptly deliver
to the Custodian a Certificate specifying with respect to the Futures Contract
Option being purchased: (a) the Series to which such Option is specifically
allocated; (b) that the transaction is a closing transaction; (c) the type of
Futures Contract and such other information as may be necessary to identify the
Futures Contract underlying the Futures Option Contract; (d) the exercise price;
(e) the premium to be paid by the Corporation; (f) the expiration date; (g) the
name of the broker or futures commission merchant to whom the premium is to be
paid; and (h) the amount of cash and/or the amount and kind of Securities, if
any, to be withdrawn from the Senior Security Account for such Series. The
Custodian shall effect the withdrawals from the Senior Security Account
specified in the Certificate. The withdrawals, if any, to be made from the
Margin Account shall be made by the Custodian in accordance with the terms and
conditions of the Margin Account Agreement.
8. Upon the expiration, exercise, or consummation of a closing
transactions with respect to any Futures Contract Option written or purchased by
the Corporation and described in this Article, the Custodian shall (a) delete
such Futures Contract Option from the statements delivered to the Corporation
pursuant to paragraph 3 of Article III herein, and (b) make such withdrawals
from and/or in the case of an exercise such deposits into the Senior Security
Account as may be specified in a Certificate. The deposits to and/or withdrawals
from the Margin Account, if any, shall be made by the Custodian in accordance
with the terms and conditions of the Margin Account Agreement.
9. Futures Contracts acquired by the Corporation through the
exercise of a Futures Contract Option described in this Article shall be subject
to Article VI hereof.
ARTICLE VIII
SHORT SALES
1. Promptly after any short sales by any Series of the
Corporation, the Corporation shall promptly deliver to the Custodian a
Certificate specifying: (a) the Series for which such short sale was made; (b)
the name of the issuer and the title of the Security; (c) the number of shares
or principal amount sold, and accrued interest or dividends, if any; (d) the
dates of the sale and settlement; (e) the sale price per unit; (f) the total
amount credited to the Corporation upon such sale, if any, (g) the amount of
cash and/or the amount and kind of Securities, if any, which are to be deposited
in
a Margin Account and the name in which such Margin Account has been or is to be
established; (h) the amount of cash and/or the amount and kind of Securities, if
any, to be deposited in a Senior Security Account, and (i) the name of the
broker through whom such short sale was made. The Custodian shall upon its
receipt of a statement from such broker confirming such sale and that the total
amount credited to the Corporation upon such sale, if any, as specified in the
Certificate is held by such broker for the account of the Custodian (or any
nominee of the Custodian) as custodian of the Corporation, issue a receipt or
make the deposits into the Margin Account and the Senior Security Account
specified in the Certificate.
2. In connection with the closing-out of any short sale, the
Corporation shall promptly deliver to the Custodian a Certificate specifying
with respect to each such closing out: (a) the Series for which such transaction
is being made; (b) the name of the issuer and the title of the Security; (c) the
number of shares or the principal amount, and accrued interest or dividends, if
any, required to effect such closing-out to be delivered to the broker; (d) the
dates of closing-out and settlement; (e) the purchase price per unit; (f) the
net total amount payable to the Corporation upon such closing-out; (g) the net
total amount payable to the broker upon such closing-out; (h) the amount of cash
and the amount and kind of Securities to be withdrawn, if any, from the Margin
Account; (i) the amount of cash and/or the amount and kind of Securities, if
any, to be withdrawn from the Senior Security Account; and (j) the name of the
broker through whom the Corporation is effecting such closing-out. The Custodian
shall, upon receipt of the net total amount payable to the Corporation upon such
closing-out, and the return and/or cancellation of the receipts, if any, issued
by the Custodian with respect to the short sale being closed-out, pay out of the
moneys held for the account of the Corporation to the broker the net total
amount payable to the broker, and make the withdrawals from the Margin Account
and the Senior Security Account, as the same are specified in the Certificate.
ARTICLE IX
REVERSE REPURCHASE AGREEMENTS
1. Promptly after the Corporation enters a Reverse Repurchase
Agreement with respect to Securities and money held by the Custodian hereunder,
the Corporation shall deliver to the Custodian a Certificate, or in the event
such Reverse Repurchase Agreement is a Money Market Security, a Certificate,
Oral Instructions, or Written Instructions specifying: (a) the Series for which
the Reverse Repurchase
Agreement is entered; (b) the total amount payable to the Corporation in
connection with such Reverse Repurchase Agreement and specifically allocated to
such Series; (c) the broker or dealer through or with whom the Reverse
Repurchase Agreement is entered; (d) the amount and kind of Securities to be
delivered by the Corporation to such broker or dealer; (e) the date of such
Reverse Repurchase Agreement; and (f) the amount of cash and/or the amount and
kind of Securities, if any, specifically allocated to such Series to be
deposited in a Senior Security Account for such Series in connection with such
Reverse Repurchase Agreement. The Custodian shall, upon receipt of the total
amount payable to the Corporation specified in the Certificate, Oral
Instructions, or Written Instructions make the delivery to the broker or dealer,
and the deposits, if any, to the Senior Security Account, specified in such
Certificate, Oral Instructions, or Written Instructions.
2. Upon the termination of a Reverse Repurchase Agreement
described in preceding paragraph 1 of this Article, the Corporation shall
promptly deliver a Certificate or, in the Event such Reverse Repurchase
Agreement is a Money Market Security, a Certificate, Oral Instructions, or
Written Instructions to the Custodian specifying: (a) the Reverse Repurchase
Agreement being terminated and the Series for which same was (b) the total
amount payable by the Corporation in connection with such termination; (c) the
amount and kind of Securities to be received by the Corporation and
specifically allocated to such Series in connection with such termination; (d)
the date of termination; (e) the name of the broker or dealer with or through
whom the Reverse Repurchase Agreement is to be terminated; and (f) the amount of
cash and/or the amount and kind of Securities to be withdrawn from the Senior
Securities Account for such Series. The Custodian shall, upon receipt of the
amount and kind of Securities to be received by the Corporation specified in the
Certificate, Oral Instructions, or Written Instructions, make the payment to the
broker or dealer, and the withdrawals, if any, from the Senior Security Account,
specified in such Certificate, Oral Instructions, or Written Instructions.
ARTICLE X
LOAN OF PORTFOLIO SECURITIES OF THE Corporation
1. Promptly after each loan of portfolio Securities
specifically allocated to a Series held by the Custodian hereunder, the
Corporation shall deliver or cause to be delivered to the Custodian a
Certificate specifying with respect to each such loan: (a) the Series to which
the loaned Securities are specifically allocated; (b) the name of the
issuer and the title of the Securities; (c) the number of shares or the
principal amount loaned; (d) the date of loan and delivery; (e) the total amount
to be delivered to the Custodian against the loan of the Securities, including
the amount of cash collateral and the premium, if any, separately identified;
and (f) the name of the broker, dealer, or financial institution to which the
loan was made. The Custodian shall deliver the Securities thus designated to the
broker, dealer or financial institution to which the loan was made upon receipt
of the total amount designated as to be delivered against the loan of
Securities. The Custodian may accept payment in connection with a delivery
otherwise than through the Book-Entry System or Depository only in the form of a
certified or bank cashier's check payable to the order of the Corporation or the
Custodian drawn on New York Clearing House funds and may deliver Securities in
accordance with the customs prevailing among dealers in securities.
2. Promptly after each termination of the loan of Securities
by the Corporation, the Corporation shall deliver or cause to be delivered to
the Custodian a Certificate specifying with respect to each such loan
termination and return of Securities: (a) the Series to which the loaned
Securities are specifically allocated; (b) the name of the issuer and the title
of the Securities to be returned; (c) the number of shares or the principal
amount to be returned; (d) the date of termination; (e) the total amount to be
delivered by the Custodian (including the cash collateral for such Securities
minus any offsetting credits as described in said Certificate); and (f) the name
of the broker, dealer, or financial institution from which the Securities will
be returned. The Custodian shall receive all Securities returned from the
broker, dealer, or financial institution to which such Securities were loaned
and upon receipt thereof shall pay, out of the moneys held for the account of
the Corporation, the total amount payable upon such return of Securities as set
forth in the Certificate.
ARTICLE XI
CONCERNING MARGIN ACCOUNTS, SENIOR SECURITY
ACCOUNTS, AND COLLATERAL ACCOUNTS
1. The Custodian shall, from time to time, make such deposits
to, or withdrawals from, a Senior Security Account as specified in a Certificate
received by the Custodian. Such Certificate shall specify the Series for which
such deposit or withdrawal is to be made and the amount of cash and/or the
amount and kind of Securities specifically allocated to such Series to be
deposited in, or withdrawn from, such Senior Security Account for such Series.
In the event
that the Corporation fails to specify in a Certificate the Series, the name of
the issuer, the title and the number of shares or the principal amount of any
particular Securities to be deposited by the Custodian into, or withdrawn from,
a Senior Securities Account, the Custodian shall be under no obligation to make
any such deposit or withdrawal and shall so notify the Corporation.
2. The Custodian shall make deliveries or payments from a
Margin Account to the broker, dealer, futures commission merchant or Clearing
Member in whose name, or for whose benefit, the account was established as
specified in the Margin Account Agreement.
3. Amounts received by the Custodian as payments or
distributions with respect to Securities deposited in any Margin Account shall
be dealt with in accordance with the terms and conditions of the Margin Account
Agreement.
4. The Custodian shall have a continuing lien and security
interest in and to any property at any time held by the Custodian in any
Collateral Account described herein. In accordance with applicable law the
Custodian may enforce its lien and realize on any such property whenever the
Custodian has made payment or delivery pursuant to any Put Option guarantee
letter or similar document or any receipt issued hereunder by the Custodian. In
the Event the Custodian should realize on any such property net proceeds which
are less than the Custodian's obligations under any Put Option guarantee letter
or similar document or any receipt, such deficiency shall be a debt owed the
Custodian by the Fund within the scope of Article XIV herein.
5. On each business day the Custodian shall furnish the Fund
with a statement with respect to each Margin Account in which money or
Securities are held specifying as of the close of business on the previous
business day: (a) the name of the Margin Account; (b) the amount and kind of
Securities held therein; and (c) the amount of money held therein. The
Custodian shall make available upon request to any broker, dealer, or futures
commission merchant specified in the name of a Margin Account a copy of the
Statement furnished the Fund with respect to such Margin Account.
6. Promptly after the close of business on each business day
in which cash and/or Securities are maintained in a Collateral Account for any
Series, the Custodian shall furnish the Fund with a statement with respect to
such Collateral Account specifying the amount of cash and/or the amount and kind
of Securities held therein. No later than the close of business next succeeding
the delivery to the Fund of such statement, the Fund shall furnish to the
Custodian a
Certificate or Written Instructions specifying the then market value of the
Securities described in such statement. In the event such then market value is
indicated to be less than the Custodian's obligation with respect to any
outstanding Put Option guarantee letter or similar document, the Fund shall
promptly specify in a Certificate the additional cash and/or Securities to be
deposited in such Collateral Account to eliminate such deficiency.
ARTICLE XII
PAYMENT OF DIVIDENDS OR DISTRIBUTIONS
1. The Corporation shall furnish to the Custodian a copy of
the resolution of the Board of Directors of the Corporation, certified by the
Secretary or any Assistant Secretary, either (i) setting forth with respect to
the Series specified therein the date of the declaration of a dividend or
distribution, the date of payment thereof, the record date as of which
shareholders entitled to payment shall be determined, the amount payable per
Share of such Series to the shareholders of record as of that date and the total
amount payable to the Dividend Agent and any sub-dividend agent or co-dividend
agent of the Corporation on the payment date, or (ii) authorizing with respect
to the Series specified therein the declaration of dividends and distributions
on a daily basis and authorizing the Custodian to rely on Oral Instructions,
Written Instructions or a Certificate setting forth the date of the declaration
of such dividend or distribution, the date of payment thereof, the record date
as of which shareholders entitled to payment shall be determined, the amount
payable per Share of such Series to the shareholders of record as of that date
and the total amount payable to the Dividend Agent on the payment date.
2. Upon the payment date specified in such resolution, Oral
Instructions, Written Instructions or Certificate, as the case may be, the
Custodian shall pay out of the moneys held for the account of each Series the
total amount payable to the Dividend Agent and any sub-dividend agent or
co-dividend agent of the Corporation with respect to such series.
ARTICLE XIII
SALE AND REDEMPTION OF SHARES
1. Whenever the Corporation shall sell any Shares, it shall
deliver to the Custodian a Certificate duly specifying:
(a) The Series, the number of Shares sold, trade date, and
price; and
(b) The amount of money to be received by the Custodian for
the sale of such Shares and specifically allocated to the separate account in
the name of such Series.
2. Upon receipt of such money from the Transfer Agent, the
Custodian shall credit such money to the separate account in the name of the
Series for which such money was received.
3. Upon issuance of any Shares of any Series described in the
foregoing provisions of this Article, the Custodian shall pay, out of the money
held for the account of such Series, all original issue or other taxes required
to be paid by the Corporation in connection with such issuance upon the receipt
of a Certificate specifying the amount to be paid.
4. Except as provided hereinafter, whenever the Corporation
desires the Custodian to make payment out of the money held by the Custodian
hereunder in connection with a redemption of any Shares, it shall furnish to the
Custodian a Certificate specifying:
(a) The number and Series of Shares redeemed;
and
(b) The amount to be paid for such Shares.
5. Upon receipt from the Transfer Agent of an advice setting
forth the Series and number of Shares received by the Transfer Agent for
redemption and that such Shares are in good form for redemption, the Custodian
shall make payment to the Transfer Agent out of the moneys held in the separate
account in the name of the Series the total amount specified in the Certificate
issued pursuant to the foregoing paragraph 4 of this Article.
6. Notwithstanding the above provisions regarding the
redemption of any Shares, whenever any Shares are redeemed pursuant to any check
redemption privilege which may from time to time be offered by the Corporation,
the Custodian, unless otherwise instructed by a Certificate, shall, upon receipt
of an advice from the Corporation or its agent setting forth that the redemption
is in good form for redemption in accordance with the check redemption
procedure, honor the check presented as part of such check redemption privilege
out of the moneys
held in the separate account of the Series of the Shares being redeemed.
ARTICLE XIV
OVERDRAFTS OR INDEBTEDNESS
1. If the Custodian should in its sole discretion advance
funds on behalf of any Series which results in any overdraft because the moneys
held by the Custodian in the separate account for such Series shall be
insufficient to pay the total amount payable upon a purchase of Securities
specifically allocated such Series, as set forth in a Certificate, Oral
Instructions, or Written Instructions or which results in an overdraft in the
separate account of such Series for some other reasons, or if the Corporation is
for any other reason indebted to the Custodian with respect to a Series,
including any indebtedness to The Bank of New York under the Corporation's Cash
Management and Related Services Agreement (except a borrowing for investment or
for temporary or emergency purposes using Securities as collateral pursuant to a
separate agreement and subject to the provisions of paragraph 2 of this
Article), such overdraft or indebtedness shall be deemed to be a loan made by
the Custodian to the Corporation for such Series payable on demand and shall
bear interest from the date incurred at a rate per annum(based on a 360-day year
for the actual number of days involved) equal to 1/2% over Custodian's prime
commercial lending rate in effect from time to time, such rate to be adjusted on
the effective date of any change in such prime commercial lending rate but in no
event to be less than 6% per annum. In addition, the Corporation hereby agrees
that the Custodian shall have a continuing lien and security interest in and to
any property specifically allocated to such Series at any time held by it for
the benefit of such Series or in which the Corporation may have an interest
which is then in the Custodian's possession or control or in possession or
control of any third party acting in the Custodian's behalf. The Corporation
authorizes the Custodian, in its sole discretion, at any time to charge any such
overdraft or indebtedness together with interest due thereon against any balance
of account standing to such Series' credit on the Custodian's books. In
addition, the Corporation hereby covenants that on each Business Day on which
either it intends to enter a Reverse Repurchase Agreement and/or otherwise
borrow from a third party, or which next succeeds a Business Day on which at the
close of business the Corporation had outstanding a Reverse Repurchase Agreement
or such a borrowing, it shall prior to 9 a.m., New York City time, advise the
Custodian, in writing, of each such borrowing, shall specify the Series to
which the same relates, and shall not incur any indebtedness not so specified
other than from the Custodian.
2. The Corporation will cause to be delivered to the Custodian
by any bank (including, if the borrowing is pursuant to a separate agreement,
the Custodian) from which it borrows money for investment or for temporary or
emergency purposes using Securities held by the Custodian hereunder as
collateral for such borrowings, a notice or undertaking in the form currently
employed by any such bank setting forth the amount which such bank will loan to
the Corporation against delivery of a stated amount of collateral. The
Corporation shall promptly deliver to the Custodian a Certificate specifying
with respect to each such borrowing: (a) the Series to which such borrowing
relates; (b) the name of the bank; (c) the amount and terms of the borrowing,
which may be set forth by incorporating by reference an attached promissory
note, duly endorsed by the Corporation, or other loan agreement; (d) the time
and date, if known, on which the loan is to be entered into; (e) the date on
which the loan becomes due and payable; (f) the total amount payable to the
Corporation on the borrowing date; (g) the market value of Securities to be
delivered as collateral for such loan, including the name of the issuer, the
title and the number of shares or the principal amount of any particular
Securities; and (h) a statement specifying whether such loan is for investment
purposes or for temporary or emergency purposes and that such loan is in
conformance with the Investment Company Act of 1940 and the Corporation's
prospectus. The Custodian shall deliver on the borrowing date specified in a
Certificate the specified collateral and the executed promissory note, if any,
against delivery by the lending bank of the total amount of the loan payable,
provided that the same conforms to the total amount payable as set forth in the
Certificate. The Custodian may, at the option of the lending bank, keep such
collateral in its possession, but such collateral shall be subject to all rights
therein given the lending bank by virtue of any promissory note or loan
agreement. The Custodian shall deliver such Securities as additional collateral
as may be specified in a Certificate to collateralize further any transaction
described in this paragraph. The Corporation shall cause all Securities released
from collateral status to be returned directly to the Custodian, and the
Custodian shall receive from time to time such return of collateral as may be
tendered to it. In the event that the Corporation fails to specify in a
Certificate the Series, the name of the issuer, the title and number of shares
or the principal amount of any particular Securities to be delivered as
collateral by the Custodian, the Custodian shall not be under any obligation to
deliver any Securities.
ARTICLE XV
CONCERNING THE CUSTODIAN
1. Except as hereinafter provided, neither the Custodian nor
its nominee shall be liable for any loss or damage, including counsel fees,
resulting from its action or omission to act or otherwise, either hereunder or
under any Margin Account Agreement, except for any such loss or damage arising
out of its own negligence or willful misconduct. In no event shall the Custodian
be liable to the Corporation or any third party 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. The Custodian may, with
respect to questions of law arising hereunder or under any Margin Account
Agreement, apply for and obtain the advice and opinion of counsel to the
Corporation or of its own counsel, at the expense of the Corporation, and shall
be fully protected with respect to anything done or omitted by it in good faith
in conformity with such advice or opinion. The Custodian shall be liable to the
Corporation for any loss or damage resulting from the use of the Book-Entry
System or any Depository arising by reason of any negligence or willful
misconduct on the part of the Custodian or any of its employees or agents.
2. Without limiting the generality of the foregoing, the
Custodian shall be under no obligation to inquire into, and shall not be liable
for:
(a) The validity of the issue of any Securities purchased,
sold, or written by or for the Corporation, the legality of the purchase, sale
or writing thereof, or the propriety of the amount paid or received therefor;
(b) The legality of the sale or redemption of any Shares,
or the propriety of the amount to be received or paid therefor;
(c) The legality of the declaration or payment of any
dividend by the Corporation;
(d) The legality of any borrowing by the Corporation using
Securities as collateral;
(e) The legality of any loan or portfolio Securities, nor
shall the Custodian be under any duty or obligation to see to it that any cash
collateral delivered to it by a broker, dealer, or financial institution or held
by it at any time as a result of such loan of portfolio Securities of the
Corporation is adequate collateral for the Corporation
against any loss it might sustain as a result of such loan. The Custodian
specifically, but not by way of limitation, shall not be under any duty or
obligation periodically to check or notify the Corporation that the amount of
such cash collateral held by it for the Corporation is sufficient collateral for
the Corporation, but such duty or obligation shall be the sole responsibility of
the Corporation. In addition, the Custodian shall be under no duty or obligation
to see that any broker, dealer or financial institution to which portfolio
Securities of the Corporation are lent pursuant to Article XIV of this Agreement
makes payment to it of any dividends or interest which are payable to or for the
account of the Corporation during the period of such loan or at the termination
of such loan, provided, however, that the Custodian shall promptly notify the
Corporation in the event that such dividends or interest are not paid and
received when due; and
(f) The sufficiency or value of any amounts of money and/or
Securities held in any Margin Account, Senior Security Account or Collateral
Account in connection with transactions by the Corporation. In addition, the
Custodian shall be under no duty or obligation to see that any broker, dealer,
futures commission merchant or Clearing Member makes payment to the Corporation
of any variation margin payment or similar payment which the Corporation may be
entitled to receive from such broker, dealer, futures commission merchant or
Clearing Member, to see that any payment received by the Custodian from any
broker, dealer, futures commission merchant or Clearing Member is the amount the
Corporation is entitled to receive, or to notify the Corporation of the
Custodian's receipt or non-receipt of any such payment.
3. The Custodian shall not be liable for, or considered to be
the Custodian of, any money, whether or not represented by any check, draft, or
other instrument for the payment of money, received by it on behalf of the
Corporation until the Custodian actually receives and collects such money
directly or by the final crediting of the account representing the Corporation's
interest at the Book-Entry System or the Depository.
4. The Custodian shall have no responsibility and shall not be
liable for ascertaining or acting upon any calls, conversions, exchange offers,
tenders, interest rate changes or similar matters relating to Securities held in
the Depository, unless the Custodian shall have actually received timely notice
from the Depository. In no event shall the Custodian have any responsibility or
liability for the failure of the Depository to collect, or for the late
collection or late crediting by the Depository of any amount payable upon
Securities deposited in the Depository which may mature or be re-
deemed, retired, called or otherwise become payable. However, upon receipt of a
Certificate from the Corporation of an overdue amount on Securities held in the
Depository the Custodian shall make a claim against the Depository on behalf of
the Corporation, except that the Custodian shall not be under any obligation to
appear in, prosecute or defend any action, suit or proceeding in respect to any
Securities held by the Depository which in its opinion may involve it in expense
or liability, unless indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
5. The Custodian shall not be under any duty or obligation to
take action to effect collection of any amount due to the Corporation from the
Transfer Agent of the Corporation nor to take any action to effect payment or
distribution by the Transfer Agent of the Corporation of any amount paid by the
Custodian to the Transfer Agent of the Corporation in accordance with this
Agreement.
6. The Custodian shall not be under any duty or obligation to
take action to effect collection of any amount, if the Securities upon which
such amount is payable are in default, or if payment is refused after due demand
or presentation, unless and until (i) it shall be directed to take such action
by a Certificate and (ii) it shall be assured to its satisfaction of
reimbursement of its costs and expenses in connection with any such action.
7. The Custodian may appoint one or more banking institutions
as Depository or Depositories, as Sub-Custodian or Sub-Custodians, or as
Co-Custodian or Co-Custodians including, but not limited to, banking
institutions located in foreign countries, of Securities and moneys at any time
owned by the Corporation, upon such terms and conditions as may be approved in a
Certificate or contained in an agreement executed by the Custodian, the
Corporation and the appointed institution.
8. The Custodian shall not be under any duty or obligation (a)
to ascertain whether any Securities at any time delivered to, or held by it, for
the account of the Corporation and specifically allocated to a Series are such
as properly may be held by the Corporation or such Series under the provisions
of its then current prospectus, or (b) to ascertain whether any transactions by
the Corporation, whether or not involving the Custodian, are such transactions
as may properly be engaged in by the Corporation.
9. The Custodian shall be entitled to receive and the
Corporation agrees to pay to the Custodian all out-of-pocket expenses and such
compensation as may be agreed upon
from time to time between the Custodian and the Corporation. The Custodian may
charge such compensation and any expense with respect to a Series incurred by
the Custodian in the performance of its duties pursuant to such agreement
against any money specifically allocated to such Series. Unless and until the
Corporation instructs the Custodian by a Certificate to apportion any loss,
damage, liability or expense among the Series in a specified manner, the
Custodian shall also be entitled to charge against any money held by it for the
account of a Series such Series' pro rata share (based on such Series net asset
value at the tie of the charge to the aggregate net assets value of all Series
at that time) of the amount of any loss, damage, liability or expense, including
counsel fees, for which it shall be entitled to reimbursement under the
provisions of this Agreement. The expenses for which the Custodian shall be
entitled to reimbursement hereunder shall include, but are not limited to, the
expenses of sub-custodians and foreign branches of the Custodian incurred in
settling outside of New York City transactions involving the purchase and sale
of Securities of the Corporation.
10. The Custodian shall be entitled to rely upon any
Certificate, notice or other instrument in writing received by the Custodian and
reasonably believed by the Custodian to be a Certificate. The Custodian shall be
entitled to rely upon any Oral Instructions and any Written Instructions
actually received by the Custodian hereinabove provided for. The Corporation
agrees to forward to the Custodian a Certificate or facsimile thereof confirming
such Oral Instruction or Written Instructions in such manner so that such
Certificate or facsimile thereof is received by the Custodian, whether by hand
delivery, telecopier or other similar device, or otherwise, by the close of
business of the same day that such Oral Instructions or Written Instructions are
given to the Custodian. The Corporation agrees that the fact that such
confirming instructions are not received by the Custodian shall in no way affect
the validity of the transactions or enforceability of the transactions hereby
authorized by the Corporation. The Corporation agrees that the Custodian shall
incur no liability to the Corporation in acting upon Oral Instructions or
Written Instructions given to the Custodian hereunder concerning such
transactions provided such instructions reasonably appear to have been received
from an Authorized Person.
11. The Custodian shall be entitled to rely upon any
instrument, instruction or notice received by the Custodian and reasonably
believed by the Custodian to be given in accordance with the terms and
conditions of any Margin Account Agreement. Without limiting the generality of
the foregoing, the Custodian shall be under no duty to inquire into, and
shall not be liable for, the accuracy of any statements or representations
contained in any such instrument or other notice including, without limitation,
any specification of any amount to be paid to a broker, dealer, futures
commission merchant or Clearing Member.
12. The books and records pertaining to the Corporation which
are in the possession of the Custodian shall be the property of the Corporation.
Such books and records shall be prepared and maintained as required by the
Investment Company Act of 1940, as amended, and other applicable securities laws
and rules and regulations. The Corporation, or the Corporation's authorized
representatives, shall have access to such books and records during the
Custodian's normal business hours. Upon the reasonable request of the
Corporation, copies of any such books and records shall be provided by the
Custodian to the Corporation or the Corporation's authorized representative, and
the Corporation shall reimburse the Custodian its expense of providing such
copies. Upon reasonable request of the Corporation, the Custodian shall provide
in hard copy or on microfilm, whichever the Custodian elects, any records
included in any such delivery which are maintained by the Custodian on a
computer disc, or are similarly maintained, and the Corporation shall reimburse
the Custodian for its expenses of providing such hard copy or micro-film.
13. The Custodian shall provide the Corporation with any
report obtained by the Custodian on the system of internal accounting control of
the Book-Entry System, the Depository or O.C.C., and with such reports on its
own systems of internal accounting control as the Corporation may reasonably
request from time to time.
14. The Corporation agrees to indemnify the Custodian against
and save the Custodian harmless from all liability, claims, losses and demands
whatsoever, including attorney's fees, howsoever arising or incurred because of
or in connection with this Agreement, including the Custodian's payment or
non-payment of checks pursuant to paragraph 6 of Article XIII as part of any
check redemption privilege program of the Corporation, except for any such
liability, claim, loss and demand arising out of the Custodian's own negligence
or willful misconduct.
15. Subject to the foregoing provisions of this Agreement, the
Custodian may deliver an receive Securities, and receipts with respect to such
Securities, and arrange for payments to be made and received by the Custodian in
accordance with the customs prevailing from time to time among brokers or
dealers in such Securities. When the Custodian is instructed to deliver
Securities against payment, delivery of
such Securities and receipt of payment therefor may not be completed
simultaneously. The Corporation assumes all responsibility and liability for all
credit risks involved in connection with the Custodian's delivery of Securities
pursuant to instructions of the Corporation, which responsibility and liability
shall continue until final payment in full has been received by the Custodian.
16. The Custodian shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement, and no covenant or obligation shall be implied in this
Agreement against the Custodian.
ARTICLE XVI
TERMINATION
1. Either of the parties hereto may terminate this Agreement
by giving to the other party a notice in writing specifying the date of such
termination, which shall be not less than ninety (90) days after the date of
giving of such notice. In the event such notice is given by the Corporation, it
shall be accompanied by a copy of a resolution of the Board of Directors of the
Corporation, certified by the Secretary or any Assistant Secretary, electing to
terminate this Agreement and designating a successor custodian or custodians,
each of which shall be a bank or trust company having not less than $2,000,000
aggregate capital, surplus and undivided profits. In the event such notice is
given by the Custodian, the Corporation shall, on or before the termination
date, deliver to the Custodian a copy of a resolution of the Board of Directors
of the Corporation, certified by the Secretary or any Assistant Secretary,
designating a successor custodian or custodians. In the absence of such
designation by the Corporation, the Custodian may designate a successor
custodian which shall be a bank or trust company having not less than $2,000,000
aggregate capital, surplus and undivided profits. Upon the date set forth in
such notice this Agreement shall terminate, and the Custodian shall upon receipt
of a notice of acceptance by the successor custodian on that date deliver
directly to the successor custodian all Securities and moneys then owned by the
Corporation and held by it as Custodian, after deducting all fees, expenses and
other amounts for the payment or reimbursement of which it shall then be
entitled.
2. If a successor custodian is not designated by the
Corporation or the Custodian in accordance with the preceding paragraph, the
Corporation shall upon the date specified in the notice of termination of this
Agreement and upon the delivery the by Custodian of all Securities (other than
Securities held in the Book-Entry System which cannot be delivered to the
Corporation) and moneys then owned by the Corporation be deemed to be its own
custodian and the Custodian shall thereby be relieved of all duties and
responsibilities pursuant to this Agreement, other than the duty with respect to
Securities held in the Book-Entry System which cannot be delivered to the
Corporation to hold such Securities hereunder in accordance with this Agreement.
ARTICLE XVII
MISCELLANEOUS
1. Annexed hereto as Appendix A is a Certificate signed by two
of the present Officers of the Corporation under its corporate seal, setting
forth the names and the signatures of the present Authorized Persons. The
Corporation agrees to furnish to the Custodian a new Certificate in similar form
in the event that any such present Authorized Person ceases to be an Authorized
Person or in the event that other or additional Authorized Persons are elected
or appointed. Until such new Certificate shall be received, the Custodian shall
be fully protected in acting under the provisions of this Agreement upon Oral
Instructions or signatures of the present Authorized Persons as set forth in the
last delivered Certificate.
2. Annexed hereto as Appendix B is a Certificate signed by two
of the present Officers of the Corporation under its corporate seal, setting
forth the names and the signatures of the present Officers of the Corporation.
The Corporation agrees to furnish to the Custodian a new Certificate in similar
form in the event any such present Officer ceases to be an Officer of the
Corporation, or in the event that other or additional Officers are elected or
appointed. Until such new Certificate shall be received, the Custodian shall be
fully protected in acting under the provisions of this Agreement upon the
signatures of the Officers are set forth in the last delivered Certificate.
3. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Custodian, shall be sufficiently
given if addressed to the Custodian and mailed or delivered to it at its offices
at 00 Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as the
Custodian may from time to time designate in writing.
4. Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Corporation shall be sufficiently
given if addressed to the Corporation and mailed or delivered to it at its
office at the address for the Corporation first above written, or at such other
place as the Corporation may from time to time designate in writing.
5. This Agreement may not be amended or modified in any manner
except by a written agreement executed by both parties with the same formality
as this Agreement and approved by a resolution of the Board of Directors of the
Corporation.
6. 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 the Corporation without
the written consent of the Custodian, or by the Custodian without the written
consent of the Corporation, authorized or approved by a resolution of the
Corporation's Board of Directors.
7. This Agreement shall be construed in accordance with the
laws of the State of New York without giving effect to conflict of laws
principles thereof. Each party 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 and hereby waives its right to trial by jury.
8. 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective corporate Officers, thereunto duly
authorized and their respective corporate seals to be hereunto affixed, as of
the day and year first above written.
BNY Xxxxxxxx Funds, Inc.
[SEAL] By: /s/ Xxxxxxx Xxxxxxx
---------------------
Name:
Title: President
Attest:
/s/ Xxxxx X. Xxxxxxxx
----------------------
Secretary
THE BANK OF NEW YORK
[SEAL] By: /s/ Xxxxxx Grunston
--------------------
Name:
Title: VP
Attest:
/s/ Xxxxxx X. Xxxxxx
---------------------
Secretary
