EXHIBIT 24(b)(8)
CUSTODY AGREEMENT
CUSTODY AGREEMENT
This Agreement is made this 31st day of January, 1997 between
Orchard Series Fund, Inc. (the "Company"), a Delaware Business
Trust, and The Bank of New York ("BNY").
1. BNY will open and maintain an account on behalf of the
Company (the "Account") and hold therein all cash, securities and
other property as shall from time to time be received and accepted
by BNY pursuant to this Agreement, and will collect and receive all
income, monies and other properties paid or deposited in respect of
the property held in the Account or realized on the sale or other
disposition of property in the Account. All assets in the Account
shall be held for the use and benefit of the Company, shall remain
the specific property of the Company and shall not be subject to
any claim made by the Bank against the Company, nor to any right of
set off by the Bank and, except for cash, shall not be subject to
the claim of any third party against the Bank.
2. BNY will, upon instructions of the Company given as
provided in paragraph 14: (a) deliver or receive securities and
other property, (b) convert, redeem or exchange for other
securities and other property any securities or other property at
any time held in the Account, and (c) transfer or make payments
from the Account of securities and other property to such persons
as may from time to time be specified by the Company.
3. BNY shall notify Company of any fractional interests
in
securities received by BNY as a result of stock dividends and will
dispose or sell of such fractional interests.
4. When BNY is instructed to receive securities against
payment, the Company will have funds or equivalent receivables on
deposit with BNY or have funds made available to BNY in advance for
such purpose.
5. BNY is not under any duty to provide the Company with
investment advice or to supervise the Company's investments.
6. BNY shall notify the Company of each transaction
involving the Account and will render a statement of transactions
with respect to the Account on a regular basis. Additional
periodic statements and certifications of assets shall be rendered
as the Company may reasonably require. BNY shall at all times
maintain proper books and records with regard to all transactions
contemplated by this Agreement. Books and records shall be subject
to audit and inspection by the Company. During the course of BNY's
regular business hours, authorized employees and representatives of
the Company, upon giving one business day notice, or regulatory
officials, upon reasonably notice whenever possible, shall be
entitled to examine on BNY's premises, BNY's records relating to
the Account or inspect the assets of the Account.
7. The Bank will send to the Company (i) such proxies
(signed in blank if issued in the name of the nominee) and
communications with respect to securities in the Account as call
for voting or other action by the stockholder; (ii) any information
which relates to legal proceedings and which is received by BNY for
forwarding to the Company; and (iii) any information relating to
the securities.
8. The Company hereby authorizes BNY to hold securities
owned by the Company with the Depository Trust Company, the
Participants Trust Company, the Federal Reserve Bank and Euroclear.
Securities so held by BNY, or held in fungible bulk by BNY for more
than one owner, shall be separately identified on BNY's official
records as being owned by the Company. BNY shall provide annual
certification that the securities are held in custody or as
required by applicable regulatory officials.
9. BNY's records shall identify which securities are kept
with the Depository Trust Company, the Participants Trust Company,
the Federal Reserve Bank and Euroclear and shall also identify the
location of the securities, and, if held through an agent, the name
of the agent.
10. All the securities that are registered must be
registered
in the name of the Company, in the name of a nominee of the
Company, in BNY's name or its nominee, or, if held in an authorized
clearing corporation, in the name of the clearing corporation or
its nominee. For securities held in the name of a nominee, the
Company will have the same responsibility as if the securities were
registered in its name.
11. Compensation for BNY's services pursuant to this
Agreement shall be as agreed to in advance from time-to-time by BNY
and the Company and shall be evidenced in writing. BNY will
provide a monthly statement to the Company reflecting the fees due
and owing to BNY for its services rendered pursuant to this
Agreement. The Company will remit payment according to said
invoice within 30 business days after receipt thereof either by
electronic wire transfer or by check. If such statement is not
paid within the thirty day period, BNY is authorized to charge the
account in accordance with its preauthorized debit procedures.
12. BNY is authorized to charge the account with all taxes
and expenses incidental to the transfer of securities on the
Company's behalf and will provide on a monthly basis an itemized
statement to the Company of such charges.
13. BNY is authorized to disclose the Company's name,
address
and securities position to the issuers of such securities when
requested to do so by them.
14. BNY shall be authorized to accept and rely upon the
instructions given by any authorized employee of the Company,
including any verbal instructions which the individual receiving
such instructions on behalf of BNY believes in good faith to have
been given by an authorized employee of the Company, and all
authorizations shall remain in full force and effect until canceled
or superseded by subsequent instructions received by BNY.
15. BNY will post income and principal payments to the
Account pursuant to Schedule A attached hereto and incorporated
herein by reference. For any failure to so post income and
principal payments, BNY agrees to pay compensation to the Company
as agreed to in writing by the parties.
16. After safe delivery of securities to BNY and until
redelivery or other disposition of such securities pursuant to
instructions by the Company, BNY assumes liability for loss thereof
due to the negligence or willful misconduct of BNY, the unexcused
breach of the Agreement by BNY or violation by BNY of any
applicable law, regulation or order. Safe delivery shall be
evidenced by a confirmation issued by BNY.
17. BNY agrees that it is responsible for and required to
fully reimburse and indemnify the Company for any loss of
securities pursuant to Paragraph 16 above. In the event there is
a loss of securities as to which BNY is obligated to indemnify the
Company, BNY shall promptly replace the same or the value thereof,
and the value of any loss of rights or privileges pertaining to
such securities which result from such loss.
18. When BNY is instructed to deliver securities against
payment, delivery may actually be made before receipt of payment in
accordance with generally accepted market practice of net end-of-
day settlement. The Company bears the risk that the recipient of
the securities may fail to make payment, return the securities or
hold the securities or the proceeds of their sale in trust for the
Company of for BNY as agent.
19. The Company will execute its investment transactions
on
its own behalf. However, in the event the Company chooses to
utilize the services of BNY, BNY will, at its sole discretion,
accept orders from the Company for the purchase or sale of
securities and either execute such orders itself or by means of an
agent, such as a broker or other financial organization of its
choice, subject to the fees and commissions in effect from time to
time. BNY shall not be responsible for any act or omission, or for
the solvency, of any broker or agent selected by BNY to effect any
transaction for the Company's account. When instructed to buy or
sell securities for which BNY acts as a dealer, BNY will buy or
sell such securities from or to itself as principal.
20. BNY will be entitled to reverse any credits made on
the
Company's behalf where such credits have been previously made and
securities or monies are not finally collected.
21. All shipments of negotiable or non-negotiable
securities
from BNY must be by registered mail, registered airmail and/or
express and connecting messenger therewith and must be insured.
22. BNY shall be under no obligation or duty to take
action
to effect collection of any amount if the securities upon which
such payment is due are in default, or if payment is refused after
due demand and presentation.
23. It is understood that BNY is authorized to supply any
information regarding the Account which is required by any law or
governmental regulation now or hereafter in effect.
24. Each and every right granted to the parties hereunder
or
under any other document delivered hereunder or in connection
herewith, or in connection herewith, or allowed them by law or
equity, shall be cumulative and may be exercised from time to time.
No failure on the part of either party to exercise, and no delay in
exercising, any right will operate as a waiver thereof, nor will
any single or partial exercise by either party or any right
preclude any other or future exercise thereof or the exercise of
any other right.
25. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality or enforceability of the
remaining provisions or obligations shall not in any way be
affected or impaired thereby, and if any provision is inapplicable
to any person or circumstances, it shall nevertheless remain
applicable to all other persons and circumstances.
26. The Agreement may be amended or terminated at any time
by
written agreement of the parties and may be terminated by either
party at any time upon 60 days written notice to the other party.
In the event of termination of the Agreement, BNY shall join in
whatever action is necessary to effect the safe return to the
Company, or the transfer to such person(s) designated by the
Company, of the assets comprising the Account.
27. Notices and other communications shall be addressed to
the parties hereto at the address set forth in the signature part
of this Agreement.
28. The Agreement shall be governed by the laws of the
State
of New York and will be binding upon the successors and assigns of
the parties hereto.
Dated as of the day and year first above written.
ORCHARD SERIES FUND, INC. THE BANK OF NEW YORK
0000 Xxxx Xxxxxxx Xxxx 48 Wall Street
Englewood, CO 80111 New York, NY
By: By:
Title: Title:Xxxxxxxxxxx X.
Xxxxxx
Vice President
By: By:
Title: Title:Xxxxx X. Xxxxx,
Xx.
Vice President
