EXHIBIT(k)(1)
AGREEMENT, made as of _____________, between MuniYield New Jersey Insured
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 duty 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.
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;
(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
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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
(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
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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 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.
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(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. The 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 liable 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 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.
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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 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
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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, 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
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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.
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:
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(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, X0 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 INSURED 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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