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EXHIBIT 13 (a)
AGREEMENT, made as of ______________ between MuniYield New Jersey Fund, Inc. a
corporation organized and existing under the laws of the state of Maryland
(hereinafter referred to as the "Customer"), and The Bank of New York, a New
York trust company (hereinafter referred to as the "Bank").
W I T N E S S E T H:
That for and in consideration of the mutual promises hereinafter set forth, the
parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases shall have the
following meanings:
1. "Business Day" shall be deemed to be each day on which the Bank is
open for business.
2. "Certificate" shall mean any notice, instruction, or other instrument
in writing, authorized or required by this Agreement to be given to the Bank by
the Customer which is signed by any Officer, as hereinafter defined, and
actually received by the Bank.
3. "Officer" shall be deemed to be the Customer's Chief Executive Officer,
President, any Vice President, the Secretary, the Treasurer, the Controller, any
Assistant Treasurer and any Assistant Secretary duly authorized by the Board of
Directors of the Customer to execute any Certificate, instruction, notice or
other instrument on behalf of the Customer and named in a Certificate, as such
Certificate may be amended from time to time.
4. "Prospectus" shall mean the last Customer prospectus actually received
by the Bank from the Customer with respect to which the Customer has indicated a
registration statement under the Securities Act of 1933, as amended, has become
effective, including the statement of Additional Information incorporated by
reference therein.
5. "Shares" shall mean all or any part of each class of the shares of
capital stock of the Customer which from time to time are authorized and/or
issued by the Customer and identified in a Certificate of the Secretary of the
Customer under corporate seal, as such Certificate may be amended from time to
time.
ARTICLE II
APPOINTMENT OF BANK
1. The Customer hereby constitutes and appoints the Bank as its agent to
perform the services described herein and as more particularly described in
Schedule I attached hereto (the "Services"), and the Bank hereby accepts
appointment as such agent and agrees to perform the Services in accordance with
the terms hereinafter set forth.
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2. In connection with such appointment, the Customer shall deliver the
following documents to the Bank on or about the closing date of the initial
public offering:
(a) A certified copy of the Certificate of Incorporation or other
document evidencing the Customer's form of organization (the "Charter") and all
amendments thereto;
(b) A certified copy of the By-Laws of the Customer;
(c) A certified copy of a resolution of the Board of Directors of
the Customer appointing the Bank to perform the Services and authorizing the
execution and delivery of this Agreement;
(d) A Certificate signed by the Secretary of the Customer
specifying: the number of authorized Shares, the number of such authorized
Shares issued and currently outstanding, and the names and specimen signatures
of all persons duly authorized by the Board of Directors of the Customer to
execute any Certificate on behalf of the Customer, which Certificate may be
amended from time to time;
(e) A Specimen Share certificate for each class of Shares in the
form approved by the Board of Directors of the Customer, together with a
Certificate signed by the Secretary of the Customer as to such approval;
(f) A copy of the Customer's Registration Statement, filed by the
Customer with the Securities and Exchange Commission under the Securities Act
of 1933, as amended.
(g) An opinion of counsel for the Customer with respect to the
validity of the authorized and outstanding Shares, whether such Shares are
fully paid and non-assessable and the status of such Shares under the
Securities Act of 1933, as amended, and any other applicable law or regulation
(i.e., if subject to registration, that they have been registered and that the
Registration Statement has become effective or, if exempt, the specific grounds
therefor).
3. The Customer shall furnish the Bank with a sufficient supply of blank
Share certificates and from time to time will renew such supply upon request of
the Bank. Such blank Share certificates shall be properly signed, by facsimile
or otherwise, by officers of the Customer authorized by law or by the By-Laws
to sign Share certificates, and, if required, shall bear the corporate seal or
a facsimile thereof.
ARTICLE III
AUTHORIZATION AND ISSUANCE OF SHARES
1. The Customer shall deliver to the Bank a certified copy of the
amendment to the Charter giving effect to such increase, decrease or change, on
or before the effective date of any increase, decrease or other change in the
total number of Shares authorized to be issued.
(a) A certified copy of the amendment to the Charter giving
effect to such increase, decrease or change;
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(b) An opinion of counsel for the Customer with respect to the
validity of the Shares and the status of such Shares under the Securities Act
of 1933, as amended, and any other applicable federal law or regulations (i.e.,
if subject to registration, that they have been registered and that the
Registration Statement has become effective or, if exempt, the specific grounds
therefor); and
(c) In the case of an increase, if the appointment of the Bank
was theretofore expressly limited, a certified copy of a resolution of the
Board of Directors of the Customer increasing the authority of the Bank.
2. Prior to the issuance of any additional Shares pursuant to stock
dividends, stock splits or otherwise, and prior to any reduction in the number
of Shares outstanding, the Customer shall deliver the following documents to the
Bank.
(a) A certified copy of the resolutions adopted by the Board of
Directors and/or the shareholders of the Customer authorizing such issuance of
additional Shares of the Customer or such reduction, as the case may be;
(b) A certified copy of the order or consent, if applicable, of
each governmental or regulatory authority required by law as a prerequisite to
the issuance or reduction of such Shares; and
(c) An opinion of counsel for the Customer with respect to the
validity of the Shares and the status of such the Shares under the Securities
Act of 1933, as amended, and any other applicable law or regulation (i.e., if
subject to registration, that they have been registered and that the
Registration Statement has become effective, or, if exempt, the specific
grounds therefor).
ARTICLE IV
RECAPITALIZATION OR CAPITAL ADJUSTMENT
1. In the case of any negative stock split, recapitalization or other
capital adjustment requiring a change in the form of Share certificates, the
Bank will issue Share certificates in the new form in exchange for, or upon
transfer of, outstanding Share certificates in the old form, upon receiving:
(a) A Certificate authorizing the issuance of Share certificates
in the new form;
(b) A certified copy of any amendment to the Charter with respect
to the change;
(c) Specimen Share certificates for each class of Shares in the
new form approved by the Board of Directors of the Customer, with a Certificate
signed by the Secretary of the Customer as to such approval;
(d) A certified copy of the order or consent of each governmental
or regulatory authority required by law as a prerequisite to the issuance of
the Shares in the new form, and an opinion of counsel for the Customer that the
order or consent of no other governmental or regulatory authority is required;
and
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(e) An opinion of counsel for the Customer with respect to the
validity of the Shares in the new form and the status of such Shares under the
Securities Act of 1933, as amended, and any other applicable law or regulation
(i.e., if subject to registration that the Shares have been registered and that
the Registration Statement has become effective or, if exempt, the specific
grounds therefor).
2. The Customer shall furnish the Bank with a sufficient supply of blank
Share certificates in the new form, and from time to time will replenish such
supply upon the request of the Bank. Such blank Share certificates shall be
properly signed, by facsimile or otherwise, by Officers of the Customer
authorized by law or by the By-Laws to sign Share Certificates and, if
required, shall bear the corporate seal or a facsimile thereof.
ARTICLE V
ISSUANCE AND TRANSFER OF SHARES
1. (a) The Bank will issue Share certificates upon receipt of a
Certificate from an Officer, but shall not be required to issue Share
certificates after it has received from an appropriate federal or state
authority written notification that the sale of Shares has been suspended or
discontinued, and the Bank shall be entitled to rely upon such written
notification. The Bank shall not be responsible for the payment of any original
issue or other taxes required to be paid by the Customer in connection with the
issuance of any shares.
(b) Shares will be transferred upon presentation to the Bank of
Share certificates in form deemed by the Bank properly endorsed for transfer,
accompanied by such documents as the Bank deems necessary to evidence the
authority of the person making such transfer, and bearing satisfactory evidence
of the payment of applicable stock transfer taxes. In the case of small estates
where no administration is contemplated, the Bank may, when furnished with an
appropriate surety bond, and without further approval of the Customer, transfer
Shares registered in the name of the decedent where the current market value of
the Shares being transferred does not exceed such amount as may from time to
time be prescribed by the various states. The Bank reserves the right to refuse
to transfer Shares until it is satisfied that the endorsements on Share
certificates are valid and genuine, and for that purpose it may require, unless
otherwise instructed by an Officer of the Customer, a guaranty of signature by
a member firm of the New York Stock Exchange or by a bank or trust company
acceptable to the Bank. The Bank also reserves the right to refuse to transfer
Shares until it is satisfied that the requested transfer is legally authorized,
and it shall incur no liability for the refusal in good faith to make transfers
which the Bank, in its judgment, deems improper or unauthorized, or until it is
satisfied that there is no basis to any claims adverse to such transfer. The
Bank may, in effecting transfers of Shares, rely upon those provisions of the
Uniform Act for the Simplification of Fiduciary Security Transfers or the
Uniform Commercial Code, as the same may be amended from time to time,
applicable to the transfer of securities, and the Customer shall indemnify the
Bank for any act done or omitted by it in good faith in reliance upon such
laws.
(c) All certificates representing Shares that are subject to
restrictions on transfer (e.g., securities acquired pursuant to an investment
representation, securities held by controlling persons, securities subject to
stockholders' agreements, etc.), other than the general restrictions on the
transferability of the Shares described in the Prospectus, shall be stamped
with a legend
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describing the extent and conditions of the restrictions or referring to the
source of such restrictions. The Bank assumes no responsibility with respect to
the transfer of restricted securities where counsel for the Customer advises
that such transfer may be properly effected.
(d) Notwithstanding the foregoing or any other provision
contained in this Agreement to the contrary, the Bank shall be fully protected
by the Customer in not requiring any instruments, documents, assurances,
endorsements or guarantees, including, without limitation, any signature
guarantees, in connection with a transfer of Shares whenever the Bank
reasonably believes that requiring the same would be inconsistent with the
transfer procedures as described in the Prospectus.
ARTICLE VI
DIVIDENDS AND DISTRIBUTIONS
1. Customer shall furnish to the Bank a copy of a resolution of its Board
of Directors, certified by the Secretary or any Assistant Secretary, either (i)
setting forth the date of the declaration of a dividend or distribution, the
date of accrual or payment, as the case may be, the record date as of which
shareholders entitled to payment, or accrual, as the case may be, shall be
determined, the amount per Share of such dividend or distribution, the payment
date on which all previously accrued and unpaid dividends are to be paid, and
the total amount, if any, payable to the Bank on such payment date, or (ii)
authorizing the declaration of dividends and distributions on a periodic basis
and authorizing the Bank to rely on a Certificate setting forth the information
described in subsection (i) of this paragraph.
2. Prior to the payment date specified in such Certificate or resolution,
as the case may be, the Customer shall, in the case of a cash dividend or
distribution, pay to the Bank an amount of cash, sufficient for the Bank to
make the payment, specified in such Certificate or resolution, to the
shareholders of record as of such payment date. The Bank will, upon receipt of
any such cash, (i) in the case of shareholders who are participants in a
dividend reinvestment and/or cash purchase plan of the Customer, reinvest such
cash dividends or distributions in accordance with the terms of such plan, and
(ii) in the case of shareholders who are not participants in any such plan,
make payment of such cash dividends or distributions to the shareholders of
record as of the record date by mailing a check, payable to the registered
shareholder, to the address of record or dividend mailing address. The Bank
shall not be able for any improper payment made in accordance with a
Certificate or resolution described in the preceding paragraph. If the Bank
shall not receive sufficient cash prior to the payment date to make payments of
any cash dividend or distribution pursuant to subsections (i) and (ii) above to
all shareholders of the Customer as of the record date, the Bank shall, upon
notifying the Customer, withhold payment to all shareholders of the Customer as
of the record date until sufficient cash is provided to the Bank.
3. It is understood that the Bank shall in no way be responsible for the
determination of the rate or form of dividends or distributions due to the
shareholders.
4. It is understood that the Bank shall file such appropriate information
returns concerning the payment of dividends and distributions with the proper
federal, state and local authorities as are required by law to be filed by the
Customer but shall in no way be responsible for the
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collection or withholding of taxes due on such dividends or distributions due
to shareholders, except and only to the extent required of it by applicable
law.
ARTICLE VII
CONCERNING THE CUSTOMER
1. The Customer shall promptly deliver to the Bank written notice of any
change in the Officers authorized to sign Share certificates, Certificates,
notifications or requests, together with a specimen signature of each new
Officer. In the event any Officer who shall have signed manually or whose
facsimile signature shall have been affixed to blank Share certificates shall
die, resign or be removed prior to issuance of such Share certificates, the
Bank may issue such Share certificates as the Share certificates of the
Customer notwithstanding such death, resignation or removal, and the Customer
shall promptly deliver to the Bank such approvals, adoptions or ratifications
as may be required by law.
2. Each copy of the Charter of the Customer and copies of all amendments
thereto shall be certified by the Secretary of State (or other appropriate
official) of the state of incorporation, and if such Charter and/or amendments
are required by law also to be filed with a county or other officer or official
body, a certificate of such filing shall be filed with a certified copy
submitted to the Bank. Each copy of the By-Laws and copies of all amendments
thereto, and copies of resolutions of the Board of Directors of the Customer,
shall be certified by the Secretary or an Assistant Secretary of the Customer
under the corporate seal.
3. It shall be the sole responsibility of the Customer to deliver to the
Bank the Customer's currently effective Prospectus and, for purposes of this
Agreement, the Bank shall not be deemed to have notice of any information
contained in such Prospectus until it is actually received by the Bank.
ARTICLE VIII
CONCERNING THE BANK
1. The Bank shall not be liable and shall be fully protected in acting
upon any oral instruction, writing or document reasonably believed by it to be
genuine and to have been given, signed or made by the proper person or persons
and shall not be held to have any notice of any change of authority of any
person until receipt of written notice thereof from an Officer of the Customer.
It shall also be protected in processing Share certificates which it reasonably
believes to bear the proper manual or facsimile signatures of the duly
authorized officers of the Customer and the proper countersignature of the
Bank.
2. The Bank may establish such additional procedures, rules and
regulations governing the transfer or registration of Share certificates as it
may deem advisable and consistent with such rules and regulations generally
adopted by bank transfer agents.
3. The Bank may keep such records as it deems advisable but not
inconsistent with resolutions adopted by the Board of Directors of the
Customer. The Bank may deliver to the Customer from time to time at its
discretion, for safekeeping or disposition by the Customer in accordance with
law, such records, papers, Share certificates which have been cancelled in
transfer or exchange and other documents accumulated in the execution of its
duties hereunder as
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the Bank may deem expedient, other than those which the Bank is itself required
to maintain pursuant to applicable laws and regulations, and the Customer shall
assume all responsibility for any failure thereafter to produce any record,
paper, cancelled Share certificate or other document so returned, if and when
required. The records maintained by the Bank pursuant to this paragraph which
have not been previously delivered to the Customer pursuant to the foregoing
provisions of this paragraph shall be considered to be the property of the
Customer, shall be made available upon request for inspection by the Officers,
employees and auditors of the Customer, and shall be delivered to the Customer
upon request and in any event upon the date of termination of this Agreement,
as specified in Article IX of this Agreement, in the form and manner kept by
the Bank on such date of termination or such earlier date as may be requested
by the Customer.
4. The Bank may employ agents or attorneys-in-fact at the reasonable
expense of the Customer, and shall not be liable for any loss or expense
arising out of or in connection with, the actions or omissions to act of its
agents or attorneys-in-fact, so long as the Bank acts in good faith and without
negligence or willful misconduct in connection with the selection of such
agents or attorneys-in-fact.
5. The Bank shall not be liable for any loss or damage, including
reasonable attorney's fees, resulting from its actions or omissions to act or
otherwise, except for any loss or damage arising out of its own negligence or
willful misconduct.
6. The Customer shall indemnify and hold harmless the Bank from and
against any and all claims (whether with or without basis in fact or law),
costs, demands, expenses and liabilities, including reasonable attorney's fees,
which the Bank may sustain or incur or which may be asserted against the Bank
by reason of or as a result of any action taken or omitted to be taken by the
Bank without its own negligence or willful misconduct in reliance upon (i) any
provision of this agreement, (ii) the Prospectus, (iii) any instrument, order
or Share certificate reasonably believed by it to be genuine and to be signed,
countersigned or executed by any duly authorized Officer of the Customer, (iv)
any Certificate or other instructions of an Officer, (v) any opinion of legal
counsel for the Customer or the Bank, or (vi) any law, act, regulation or any
interpretation of the same even though such law, act or regulation may
thereafter have been altered, changed, amended or repealed.
7. Specifically, but not by way of limitation, the Customer shall
indemnify and hold harmless the Bank from and against any and all claims
(whether with or without basis in fact or law), costs, demands, expenses and
liabilities, including reasonable attorney's fees, of any and every nature
which the Bank may sustain or incur or which may be asserted against the Bank
in connection with the genuineness of a Share certificate, the Bank's capacity
and authorization to issue Shares and the form and amount of authorized Shares.
8. At any time the Bank may apply to an Officer of the Customer for
written instructions with respect to any matter arising in connection with the
Bank's duties and obligations under this Agreement, and the Bank shall not be
liable for any action taken or omitted to be taken by the Bank in good faith in
accordance with such instructions. Such application by the Bank for
instructions from an Officer of the Customer may, at the option of the Bank,
set forth in writing any action proposed to be taken or omitted to be taken by
the Bank with respect to its duties or obligations under this Agreement and the
date on and/or after which such action shall be taken,
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and the Bank shall not be liable for any action taken or omitted to be taken in
accordance with a proposal included in any such application on or after the
date specified therein unless, prior to taking or omitting to take any such
action, the Bank has received written instructions in response to such
application specifying the action to be taken or omitted. The Bank may consult
counsel to the Customer or its own counsel, at the expense of the Customer, and
shall be fully protected with respect to anything done or omitted by it in good
faith in accordance with the advice or opinion of such counsel.
9. When mail is used for delivery of non-negotiable Share certificates,
the value of which does not exceed the limits of the Bank's Blanket Bond, the
Bank shall send such non-negotiable Share certificates by first class mail, and
such deliveries will be covered while in transit by the Bank's Blanket Bond.
Non-negotiable Share certificates, the value of which exceed the limits of the
Bank's Blanket Bond, will be sent by insured registered mail. Negotiable Share
certificates will be sent by insured registered mail. The Bank shall advise the
Customer of any Share certificates returned as undeliverable after being mailed
as herein provided for.
10. The Bank may issue new Share certificates in place of Share
certificates represented to have been lost, stolen or destroyed upon receiving
instructions in writing from an Officer and indemnity satisfactory to the Bank.
Such instructions from the Customer shall be in such form as approved by the
Board of Directors of the Customer in accordance with applicable law or the
By-Laws of the Customer governing such matters. If the Bank receives written
notification from the owner of the lost, stolen or destroyed Share certificate
within a reasonable time after he has notice of it, the Bank shall promptly
notify the Customer and shall act pursuant to written instructions signed by an
Officer. If the Customer receives such written notification from the owner of
the lost, stolen or destroyed Share certificate within a reasonable time after
he has notice of it, the Customer shall promptly notify the Bank and the Bank
shall act pursuant to written instructions signed by an Officer. The Bank shall
not be liable for any act done or omitted by it pursuant to the written
instructions described herein. The Bank may issue new Share certificates in
exchange for, and upon surrender of, mutilated Share certificates.
11. The Bank will issue and mail subscription warrants for Shares, Shares
representing stock dividends, exchanges or splits, or act as conversion agent
upon receiving written instructions from an Officer and such other documents as
the Bank may deem necessary.
12. The Bank will supply shareholder lists to the Customer from time to
time upon receiving a request therefor from an Officer of the Customer.
13. In case of any requests or demands for the inspection of the
shareholder records of the Customer, the Bank will notify the Customer and
endeavor to secure instructions from an officer as to such inspection. The Bank
reserves the right, however, to exhibit the shareholder records to any person
whenever it is advised by its counsel that there is a reasonable likelihood
that the Bank will be held liable for the failure to exhibit the shareholder
records to such person.
14. At the request of an Officer, the Bank will address and mail such
appropriate notices to shareholders as the Customer may direct.
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15. Notwithstanding any provisions of this Agreement to the contrary, the
Bank shall be under no duty or obligation to inquire into, and shall not be
liable for:
(a) The legality of the issue, sale or transfer of any Shares,
the sufficiency of the amount to be received in connection therewith, or the
authority of the Customer to request such issuance, sale or transfer;
(b) The legality of the purchase of any Shares, the sufficiency
of the amount to be paid in connection therewith, or the authority of the
Customer to request such purchase;
(c) The legality of the declaration of any dividend by the
Customer, or the legality of the issue of any Shares in payment of any stock
dividend; or
(d) The legality of any recapitalization or readjustment of the
Shares.
16. The Bank shall be entitled to receive and the Customer hereby agrees
to pay to the Bank for its performance hereunder (i) out-of-pocket expenses
(including reasonable attorney's fees and expenses) incurred in connection with
this Agreement and its performance hereunder, and (ii) the compensation for
services as set forth in Schedule I.
17. The Bank shall not be responsible for 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 Customer, until the Bank actually receives and
collects such funds.
18. The Bank 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 against the Bank in
connection with this Agreement.
ARTICLE IX
TERMINATION
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 60 days after the date of receipt of such notice. In the
event such notice is given by the Customer, it shall be accompanied by a copy
of a resolution of the Board of Directors of the Customer, certified by the
Secretary electing to terminate this Agreement and designating a successor
transfer agent or transfer agents. In the event such notice is given by the
Bank, the Customer shall, on or before the termination date, deliver to the
Bank a copy of a resolution of its Board of Directors certified by the
Secretary designating a successor transfer agent or transfer agents. In the
absence of such designation by the Customer, the Bank may designate a successor
transfer agent. If the Customer fails to designate a successor transfer agent
and if the Bank is unable to find a successor transfer agent, the Customer
shall, upon the date specified in the notice of termination of this Agreement
and delivery of the records maintained hereunder, be deemed to be its own
transfer agent and the Bank shall thereafter be relieved of all duties and
responsibilities hereunder. Upon termination hereof, the Customer shall pay to
the Bank such compensation as may be due to the Bank as of the date of such
termination, and shall reimburse the Bank for any disbursements and expenses
made or incurred by the Bank and payable or reimbursable hereunder.
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ARTICLE X
MISCELLANEOUS
1. The Customer agrees that prior to effecting any change in the
Prospectus which would increase or alter the duties and obligations of the Bank
hereunder, it shall advise the Bank of such proposed change at least ten
business days prior to the intended date of the same, and shall proceed with
such change only if it shall have received the written consent of the Bank
thereto.
2. The indemnities contained herein shall be continuing obligations of
the Customer, its successors and assigns, notwithstanding the termination of
this Agreement.
3. Any notice or other instrument in writing, authorized or required by
this Agreement to be given to the Customer shall be sufficiently given if
addressed to the Customer and mailed or delivered to it at 000 Xxxxxxxx Xxxx
Xxxx, Xxxxxxxxxx, XX 00000 or at such place as the Customer 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 Bank shall be sufficiently given if addressed
to the Bank and mailed or delivered to it at its office at 000 Xxxxxxx Xxxxxx
(00X), Xxx Xxxx, Xxx Xxxx 00000 or at such other place as the Bank 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 duly authorized and executed by both parties. Any duly
authorized Officer may amend any Certificate naming Officers authorized to
execute and deliver Certificates, instructions, notices or other instruments,
and the Secretary or any Assistant Secretary may amend any Certificate listing
the shares of capital stock of the Customer, for which the Bank performs
Services hereunder.
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 either party without the prior written
consent of the other party.
7. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
8. This Agreement may be executed in any number of counterparts each of
which shall be deemed to be an original; but such counterparts, together, shall
constitute only one instrument.
9. The provisions of this Agreement are intended to benefit only the Bank
and the Customer, and no rights shall be granted to any other person, by virtue
of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officer, thereunto duly authorized and
their respective corporate seals to be hereunto affixed, as of the day and year
first above written.
Attest: MUNIYIELD NEW JERSEY FUND, INC.
--------------------------- By:
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Title:
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Attest: THE BANK OF NEW YORK
------------------------- By:
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Title:
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