Exhibit (j)
FORM OF
CUSTODIAN AGREEMENT
This CUSTODIAN AGREEMENT dated as of this 2nd day of October, 2001,
by and between The Bank of New York, a New York banking corporation (the
"Custodian"), and Equity Securities Trust I (such trust and the trustees thereof
acting in their capacity as such being referred to herein as the "Trust"), a
statutory business trust organized under the Business Trust Act of the State of
Delaware pursuant to a Declaration of Trust dated as of April 11, 2000 (as it
may be amended and restated from time to time, the "Trust Agreement").
WITNESSETH
WHEREAS the Trust is a non-diversified, closed-end management
investment company, as defined in the Investment Company Act of 1940 (the
"Investment Company Act"), formed to purchase and hold certain U.S. treasury
securities (the "Treasury Securities"), to enter into and hold forward purchase
contracts with respect to stock of Cablevision System Corporation (the
"Contracts") with certain persons (the "Counterparties"), to hold security for
the performance of such Counterparties of their obligations under the Contracts
pursuant to related collateral agreements (the "Collateral Agreements") and to
issue Equity Trust Securities in accordance with the terms and conditions of the
Trust Agreement;
WHEREAS the Trustees desire to engage the services of the Custodian
to perform certain custodial duties for the Trust; and
WHEREAS the Custodian is qualified and willing to assume such duties
on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined
herein shall have the respective meanings specified in the Trust Agreement.
Appointment of Custodian; Transfer of Assets. The Trust hereby
constitutes and appoints the Custodian, and the Custodian accepts such
appointment, as agent of the Trust and as custodian of all of the property,
including but not limited to, the Contracts, the Treasury Securities, the
Temporary Investments, any cash and any other property at any time owned or held
by the Trust (other than Pledged Items (as defined in the Collateral Agreements)
held by the Collateral Agent thereunder) (collectively, the "Assets"). The Trust
hereby deposits the Assets owned by the Trust on the date hereof with the
Custodian and the Custodian hereby accepts such Assets into its custody, and the
Trust shall deliver to the Custodian all additional Assets, including all
monies, securities and other property, received by the Trust at any time during
the period of this Agreement, subject to the following terms and conditions. The
Custodian hereby agrees that it shall hold the Assets in a segregated custody
account, separate and distinct from all other accounts, in accordance with
Section 17(f) of, and in such manner as shall constitute the segregation and
holding in trust within the meaning of, the Investment Company Act and the rules
and regulations thereunder. The Trust authorizes the Custodian, for any Assets
held hereunder, to use the services of any United States securities depository
permitted to perform such services for registered investment companies and their
custodians under Rule 17f-4 under
the Investment Company Act and which have been approved by the Trust, including
but not limited to, The Depository Trust Company and the Federal Reserve Book
Entry System. The Custodian shall be under no duty or obligation to inspect,
review or examine any Assets to determine that they are genuine, enforceable, or
appropriate for the represented purpose or that they are other than what they
purport to be on their face.
Asset Disposition; Examinations. The Custodian shall have no power
or authority to assign, hypothecate, pledge or otherwise dispose of the Assets,
except pursuant to a written direction in accordance with paragraph 4 below and
then only for the account of the Trust. The Assets shall be subject to no lien
or charge of any kind in favor of the Custodian for itself or for any other
Person claiming through the Custodian. The Custodian shall permit actual
examination of the Assets by the Trust's independent public accountant at the
end of each annual and semi-annual fiscal period of the Trust and at least one
other time during the fiscal year of the Trust chosen by such independent public
accountant and shall permit the inspection of the Assets by the Commission
through its employees or agents during the normal business hours of the
Custodian upon reasonable request.
Authorized Actions. The Custodian shall take such actions with
respect to the Assets as directed in writing by any Trustee or by any officer of
the Administrator as may be received by the Custodian from time to time.
Custodian's Actions Taken In Good Faith; Force Majeure. In
connection with the performance of its duties under this Agreement, the
Custodian shall have no duties or obligations other than those specifically set
forth herein or in the Trust Agreement or as may subsequently be agreed in
writing by the parties hereto. The Custodian shall be under no liability to the
Trust or any Holder for (i) any action taken in good faith in reliance on any
paper, order, certification, list, demand request, consent, affidavit, notice,
opinion, direction, endorsement, assignment, resolution, draft or other
document, prima facie properly executed, or for the disposition of the Assets
pursuant to the Trust Agreement or in respect of any action taken or suffered
under the Trust Agreement in good faith, in accordance with an opinion of
counsel or at the direction of the Trustees pursuant hereto, or (ii) for any
claims, losses, liabilities, damages or expenses (including attorneys' fees and
expenses) due to forces beyond the reasonable control of the Custodian,
including without limitation strikes, work stoppages, acts of war or terrorism,
insurrection, revolution, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; provided that this provision shall not protect
the Custodian against any liability to which it would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in the performance
of its duties or by reason of its reckless disregard of its obligations and
duties hereunder. Notwithstanding any other provision of this Agreement, the
Custodian shall under no circumstances be liable for any punitive, exemplary,
indirect or consequential damages.
Trust Agreement Validity. The Custodian shall not be responsible for
the validity or sufficiency of the Trust Agreement or the due execution thereof,
or for the form, character, genuineness, sufficiency, value or validity of any
of the Assets and the Custodian shall in no event assume or incur any liability,
duty or obligation to any Holder or to the Trustees, other than as expressly
provided herein. The Custodian shall not be responsible for or in respect of the
validity of any signature by or on behalf of the Trustees.
Litigation Obligations, Costs and Indemnity. The Custodian shall not
be under any obligation to appear in, prosecute or defend any action which in
its opinion may involve it in
expense or liability, unless it shall be furnished with such reasonable security
and indemnity against such expense or liability as it may require, and any
pecuniary costs of the Custodian from such actions shall be expenses which are
reimbursable pursuant to paragraph 13 hereof.
Taxes; Trust Expenses. In no event shall the Custodian be personally
liable for any taxes or other governmental charges imposed upon or in respect of
the Assets or upon the monies, securities or other properties included therein.
The Custodian shall be reimbursed and indemnified by the Trust for all such
taxes and charges, for any tax or charge imposed against the Trust and for any
expenses, including counsel fees, interest, penalties and additions to tax which
the Custodian may sustain or incur with respect to such taxes or charges.
Custodian Resignation, Succession. (a) The Custodian may resign by
executing an instrument in writing resigning as Custodian and delivering the
same to the Trustees, not less than 60 days before the date specified in such
instrument when, subject to clause (b) of this paragraph 9, such resignation is
to take effect. Upon receiving such notice of resignation, the Trustees shall
use their reasonable efforts promptly to appoint a successor Custodian in the
manner and meeting the qualifications provided in the Trust Agreement, by
written instrument or instruments delivered to the resigning Custodian and the
successor Custodian.
(b) In case no successor Custodian shall have been appointed
within 30 days after notice of resignation has been received by the Trustees,
the resigning Custodian may forthwith apply to a court of competent jurisdiction
for the appointment of a successor Custodian. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribed, appoint a successor
Custodian.
Custodian Removal. The Trust may remove the Custodian upon 60 days'
prior written notice to the Custodian and appoint a successor Custodian. In case
at any time the Custodian shall not meet the requirements set forth in the Trust
Agreement or shall become incapable of acting or if a court having jurisdiction
shall enter a decree or order for relief in respect of the Custodian in an
involuntary case, or the Custodian shall commence a voluntary case, under any
applicable bankruptcy, insolvency, or other similar law now or hereafter in
effect, or any receiver, liquidator, assignee, custodian, trustee, sequestrator
(or similar official) for the Custodian or for any substantial part of its
property shall be appointed, or the Custodian shall make any general assignment
for the benefit of creditors, or shall generally fail to pay its debts as they
become due, the Trust may remove the Custodian immediately and appoint a
successor Custodian. The termination of the Administration Agreement or the
Paying Agent Agreement shall cause the removal of the Custodian simultaneously
therewith.
Transfers to Successor Custodian. Upon the request of any successor
Custodian, the Custodian hereunder shall, upon payment of all amounts due it,
execute and deliver an instrument acknowledged by it transferring to such
successor Custodian all the rights and powers of the retiring Custodian; and the
retiring Custodian shall transfer, deliver and pay over to the successor
Custodian the Assets at the time held by it hereunder, if any, together with all
necessary instruments of transfer and assignment or other documents properly
executed necessary to effect such transfer and such of the records or copies
thereof maintained by the retiring Custodian in the administration hereof as may
be requested by the successor Custodian, and shall thereupon be discharged from
all duties and responsibilities hereunder. Any resignation or removal of the
Custodian shall become effective upon such acceptance of appointment by the
successor Custodian. The indemnification of the resigning Custodian
provided for hereunder shall survive any resignation, discharge or removal of
the Custodian hereunder.
Custodian Merger, Consolidation. Any corporation into which the
Custodian may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Custodian shall be a party, shall be the successor Custodian hereunder and
under the Trust Agreement without the execution or filing of any paper,
instrument or further act to be done on the part of the parties hereto or
thereto, provided that such corporation meets the requirements set forth in the
Trust Agreement.
Compensation; Expenses. The Custodian shall receive compensation for
performing the usual, ordinary, normal and recurring services under this
Custodian Agreement and, with the prior written approval of the Trust,
reimbursement for any and all expenses and disbursements incurred hereunder, as
provided in Section 3.1 of the Administration Agreement.
Section 17(f) Qualification. The Custodian hereby represents that it
is qualified to act as a custodian under Section 17(f) of the Investment Company
Act.
Custodian's Limited Liability. The Trust shall indemnify and hold
the Custodian harmless from and against any loss, damages, cost or expense
(including the costs of investigation, preparation for and defense of legal
and/or administrative proceedings related to a claim against it and reasonable
attorneys' fees and disbursements), liability or claim incurred by reason of any
inaccuracy in information furnished to the Custodian by the Trustees, or any act
or omission in the course of, connected with or arising out of any services to
be rendered hereunder, provided that the Custodian shall not be indemnified and
held harmless from and against any such loss, damages, cost, expense, liability
or claim arising from its willful misfeasance, bad faith or gross negligence in
the performance of its duties, or its reckless disregard of its duties and
obligations hereunder. Neither the Federal Reserve Book Entry System nor the
Depository Trust Company shall be deemed to be agents of the Custodian.
Rights of Set-Off; Banker's Lien. The Custodian hereby waives all
rights of set-off or banker's lien it may have with respect to the Assets held
by it as Custodian hereunder.
Termination. This Agreement shall terminate upon the earlier of the
termination of the Trust or the appointment of a successor Custodian.
Choice of Law. This Agreement is executed and delivered in the State
of New York, and all laws or rules of construction of the State of New York
shall govern the right of the parties hereto and the interpretation of the
provisions hereof.
19. Notices. Any notice to be given to the Trust hereunder shall
be in writing and shall be duly given if mailed or delivered to Equity
Securities Trust I, c/o Puglisi & Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, XX 00000, Tel.: (000) 000-0000, Fax: (000) 000-0000, and to the
Custodian if mailed or delivered to The Bank of New York, 0 Xxxx Xxxxx, 00xx
xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxx, or at such other
address as shall be specified by the addressee to the other party hereto in
writing.
20. No Third Party Beneficiaries. Nothing herein, express or
implied, shall give to any Person, other than the Trust, the Custodian and their
respective successors and assigns, any benefit of any legal or equitable right,
remedy or claim hereunder.
21. Amendments; Trust Agreement Changes; Waiver. This Agreement
shall not be deemed or construed to be modified, amended, rescinded, canceled or
waived, in whole or in part, except by a written instrument signed by a duly
authorized representative of the party to be charged. The Trustees shall notify
the Custodian of any change in the Trust Agreement prior to the effective date
of any such change. Failure of either party hereto to exercise any right or
remedy hereunder in the event of a breach hereof by the other party shall not
constitute a waiver of any such right or remedy with respect to any subsequent
breach.
22. Counterparts. This Agreement may be signed in any number of
counterparts with all counterparts constituting one and the same instrument.
