HomeMy WebLinkAboutSuffolk County National BankELW~iBETH A~ NEVH,LE
TOWN CLEP, K
REGISTRA~ OF VITAL STATISTICS
MARRIAGE OFFICER
P~ECORDS MANAGEMENT OFFICER
FREEDOM OF INFOtLMATION OFFICER
Town Hall, 53095 Main Road
P.O. Box 1179
Southold, New York 11971
Fax (516) 765-1823
Telephone (516) 765-1800
OFFICE OF THE TOWN CT,F, RK
TOWN OF SOUTHOLD
THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION WAS
ADOPTED BY THE SOUTHOLD TOWN BOARD AT A REGULAR MEETING
HELD ON MARCH 3. 1998:
WHEREAS, the Town Board of the Town of Southold has determined that
it is reasenable ancl appropriate to enter to an agreement for the
~nvestment of funds collateralized by United States Treasury
Obligations; and
WHEREAS, the Suffolk County National Bank has offered such cash
management services by acting as agent for the district under its
"Municipal Advantage Program"; and
WHEREAS, this Board 'h~s reviewed the Agency Agreement~, 'NOt'ice and
Designation of Agent. Master Repurchase Agreement and Custodial
Undertaking; it is hereby
RESOLVED that the Town Board of the Town of Southold hereby
authorizes and directs Supervisor Jean W. Cochran to execute an
agreement authorizing the Suffolk County National Bank, as agent for this
district, to execute repurchase agreements collateralized by the United
States Treasury Obligations held by a third party custodian, all in
accordance with the agreement.
Southold Town Clerk
March z[. 1998
THE SUFFOLK COUNTY NATIONAL BANK
TRUST &, INVESTMENT DIVISION
The Bank of New York
One Wall Street, 4th Floor
New York, NY 10286
Attn: Tri-Party Services
Swiss Bank Corporation
222 Dro~dway
~New ¥orR, ~Y 10008
To Whom It May Concern:
We hereby amend Appendix A of the Custodial Agency Annex
which forms a part of the Custodial Undertaking in connection
with the Master Repurchase Agreement. dated February 7, 1997
between you and the undersigned as f611ows: add/~t%~xe
The Town of South01d as a buyer for which The
Suffolk County National Bank will act/has acted as agent.
Kindly indicate your consent by signing and returning a copy
of this instrument, which can be signed in counterparts,
whereupon it shall be deemed a revision to Appendix A of the
custodial Agency Annex.
Very truly yours,
The Suffolk County National Bank
The B~ ~f New y~k~/ ~
~/ ~L,~' /' / ~ ~ ~ .- CLAIRE PRESIDENTA' MES~OVIC
THE SUFFOLK COUNTY NATIONAL BANK
TRUST & INVESTMENT DIVISION
295 NORTH SEA ROAD , SOUTHAMPTON NEW YORK 11968 · (516) 287-31013 · FAX {51B) 2~7-3296
THIS gw.~Cy AG~E%EME~T ~(the, Ag~eem~
....~ N~h ..... ~ ,~, ~ 199~, between ~he Suffolk. Counqy-Na%~onat Bank
(~'Bank") and ~e To~ of Southold
Bank to ~
bf
premises h~reina~er set
r~O cthe ,~.terg~s ah~ eondztzons
;~f~t~[ ~ih {this
to Cu stom%~.~': %
,,, (i0-: ' Upon'c.r~eq~,~t by Custpmer,,~_T~,~eI Suf,f~lk county;Nati.on.al .Ban~,
~.~ thrQu, g~ ~6~ .T~sk~ a::"~h$~G~t DiOision, ska~5 prbvide
, C~S~6mer ,with~ 'vield cu0te~ four 'the various inv%stment
~ a~te~n~at~v~s .~amlahle'~5de~'~unic'mpa't Advantage,
ii) Upm~ ,~eq~est ~ Customer' a~d ~in- accordance w~tk C~Stomer' S
~ i~s~ructions and,~ tNe terms ~of, thms Agreement, The. SK. ffolk
C~u~ky.<~Na~tzonal Bank, thzou~h~ .z~ts Trust & InOes~ment ~Dmvzszon,
~ s.h,a~ ~nve'st CUs~o~en'".S fun~ 'or' ,~qumdate~ CUstomer~s
~ ~n~e~t,~.p~rsu~nt to MUU~Zp~i Advantag~ ~
~1%)~ ~Not~t~s~andi~g ~he :;fo ego~g, The S~ffotk~ Co~t'y~ N~tionat
B~,k shall not be obl~gat~ to provide quotes or take ,any
action w%~h respect to CustDmer's investments pursuant to
Mu~%~c~,pa~ AdVantage. un~ess ~nd untii~, ~u.sE~ ~q~est~ ,such
q~p~egl o= prox~as .mnsbruo~O~s to The Suffolk tCount, y. Natmonal
(i-v) The tS.u~lk County Natzon~ Bank, as agen~ for cusEomer, shall
exe¢ut~ and del~ver a~ ~ahEers, agreements or ~-~'r doo~ents
~h, ich may be required for Qustomer to partici~a~te in ~unicipa~
k~nEage inclu~ng, withO~ li~,tat~.on~ the a~eFDd Master
~ ~ '. ' . ,. · · ~ · ' th
· Rep~rch&se Ag~en~ and ~CUstodlal Un~ertak~u~ .ln~ CQnnectlon w~
'thle[~Mast;~r ~e~ehase ~gre~ent. Customer shaft be the disclosed
p~i~c~pai .under ~these ;agreements'. - '
2. LIMITATION OF AGENT'S DUTIES.
(a) Agent Under No Obligation to Use Own Funds. The Suffolk County
National Bank shall have no obligation to make any payment on behalf of
Customer pursuant hereto which requires The Suffolk County National Bank to
use its own funds or to incur any financial liability in the performance of
its duties hereunder unless sufficient funds have been deposited with The
Suffolk County National Bank hereunder to pay in full all such amounts.
(b) Duties Limited to Agreement. The Suffolk County National Bank
shall have no duties or obligations other than those specifically set forth
herein.
(c) Agent Not Responsible for Representations. The Suffolk County
National Bank shall be regarded as making no representations and having no
responsibilities with respect to the accuracy or sufficiency of
representations, if any, made to or by Customer, or the terms of any of the
documents executed and delivered, in connection with Municipal Advantage.
(d) Reliance Upon Instructions. The Suffolk County National Bank may
rely on and shall be protected, indemnified and held harmless by Customer
in acting upon the written or facsimile instructions of Customer with
respect to any matter relating to its actions as agent, and tbs Suffolk
County National Bank shall be entitled ~o request further instructions be
given by such persons or co request that instructions be given in writing~
(e) Authorization to Act; Limitation of Liability. In performing
duties under this Agreement, The Suffolk County National Bank is authorized
to rely upon any statement, consent, agreement or other instrument no~ only
as to its due execution, its validity, and the effectiveness of its
provisions, but also as to the truth and accuracy of any information
contained therein, which The Suffolk County National Bank shall in good
faith believe to be genuine or to have been represented or signed by a
proper person or persons. The Suffolk County National Bank shall not be
liable for any error in judgement made in good faith by an officer of The
Suffolk County National Bank. The Suffolk County National Bank shall have
no liability for any action or omission to act with respect to its duties
under this Agreement undertaken in good faith reliance upon the advice of
its counsel.
3. TERMINATION OF AGENT'S DUTIES. The duties of The Suffolk County
National Bank hereunder shall continue until such time as The Suffolk
County National Bank shall have resigned or Customer shall have notified
The Suffolk County National Bank in writing that such services are no
longer required. The Suffolk County National Bank may resign on thirty
(30) days' written notice to Customer.
4. FEES AND EXPENSES OF THE AGENT, ETC. Customer shall reimburse The
Suffolk County National Bank directly for all out-of-pocket expenses
incurred by The Suffolk County National Bank in connection with the
performance of its duties as agent hereunder, including the reasonable fees
of its counsel, and Customer shall, in addition to such expenses, if any,
pay a commission of %, p.a. to The Suffolk County National Bank on
transactions effected hereunder.
~ SD-F~OLK COUNTY NA~ONAL BANK
INDEMNIFICATION. Except tha~USt~i~hall not be liable for any
or'expense that is determined to be the direct result of acts or
~sion of The Suffolk County National Bank constituting negligence or
ful misconduct, Customer hereby indemnifies and holds harmless The
County National Bank from and against any and all claims, damages,
liabilities, costs and expenses whatsoever including attorneys'
which a~io~,a~Bank may incurby
~ ......... ~ reason
as Agent for CUstomer under this
ions
7. MISCELLANEOUS.~ ~
~a~ T'hi.s~ment~ra~y~be amended only ~y a~ instrument in writing
execu~ed~by.ail~YtEeS hereto.
(b) Customer may not assLgn any of its rights or obligations
he~under.~ithou~ khe written 'consent of The S~fot~ Cou~n~y National Bank.
~ provis~ion ~o~ this:Agreement may be modifie~ .o~ h.y~ anl
wa~ved~ only
i~rument in writing executed by the party granting the waiver. .
(c) This Agreement shall be governed by and construed in accordance
w~h the laws of the State of New York.
(d) This Agreeraent sets forth the entire agreement and understanding
among the parties hereto w'ith~respect to the subjecu matte~ hereof and
suRersedes any p~ior negotiations, agreements, understandings or
ar~angemenEs among the par'ties hereto with respect %o the subject matter
he~eof.
IN WITNESS WHEREOF, the undersigned have executed
the date first above written.
(Customer)
By:
Title:
Bank
Supervisor? Town of $outhold Title:
this Agreement as of
By:
Title:
By:
Title:
NOTICE AND DESIGNATION OF AGENT
1. The undersigned ("Customer") hereby notifies Swiss Bank
Corporation, New York Branch ("SBC") that Customer has appointed
and designated The Suffolk County National Bank (~SCNB") as its
agent for the purposes set forth in the Agreement attached hereto
and that SBC is authorized add empowered to follow the
instructions of SCNB for Customer's account pursuant to Municipal
Advantage (as defined in the attached Agreement). Customer, by
its execution hereof, ratifies and confirms in all respects each
and every such transaction effected by SCNB in and for Customer's
account Pursuant to Municipal Advantage.
2. This Notice and the authorization shall continue in
full force and effect, and SBC, its successors and assigns shall
be entitled to rely thereon, until SBC shall have received
written notice executed by Customer, of its revocation, and such
revocation or termination shall in no way affect the validity of
this Notice, or the liability of Customer under the indemnity
granted to SBC, ~with respect to any transaction initiated by SCNB
prior to the actual receipt by SBC of the written notice of
revocation as provided in this paragraph.
Custorga.r ~ ~ Q
By: ~ ~o~C~Y~--
Date: March 16, 1998
i~ SUP~OLK ~O~ N~TIONAL BANK
INDEMNIFICATION. Except that Customer shall noc be liable for any
loss or expense that is determined to be the direct result of acts or
omibsion of The Suffolk County National Bank constituting negligence or
wilful misconduc[~ Customer hereby indemnifies and holds harmless The
S~i~ C~Y National Ba~k from and against a~y ~nd all claims, damages,
~s~:~s ~ti~btlities, costs and expenses w~t~oev~r ~n~lu~n~ attorneys
~S' ~d ~oSts, w~h ~e S~ff~k~C~nty N.~on~ Bank may ln~r by reason
~f or ~n ~n~ct~on ~tth ~s ection~ as Agent for Customer under th~s
ece~ved ~, Cns~om~r. N~t~ ta~d
~N~a:~ B~k shall .~ur~ve
6. L !bflT~iTiON..,O~. L I~Bi LI T~. .... . In .....
Suffolk 'County National Ban.k,
Bank~f~b{e t6' th~.Cus~b~er' fOr.~.any%.iost..::p~cf&ts.,' ]'ost savings or
conse~e~tf~al~ cther ~nc~dentag. or {pun~
7 . MISCELLi%NEOI~S. ~ ~
(a) maly he'amended ~Y~Y an~ instrument in writing
executed ~b~ ~hereto,.
~ ~,~ ~-~n~ assign any ~f its richts or obligations
'~ ~ .- ~ ' EfOl Cou~t National Bank.
~ ~ ~ e ~. ten. conse t ~f The S~ ~ k y
hereun~r~o~t? t~ wr ~. ~ ~ ~ .
~ ~ ' . ~ ~ ' ~d~ifi~d ~r waived onl b an
An pro=m~m O~,~t~s Agreement m~Y ,be~ . . , _ ~ . Y Y
instr~ent i~ w~rltim9 exedUted by ~h~ par~y g~antmn~, nne wazver.
(c} This Agreement shall b~ goverged by and construed in accordance
with the laws of the State of NeW York.
(d) Th~s ~greement sets forth the entire agreement and understanding
among ~he parties hereto with respect to the subject matter hereof and
supersedes a~y ~ri0~ negotiations, agreements, understandings or
arrangements among t~e parties hereto~.with respect to the subject matter
hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
(Customer)
By:
Title:
Bank
Cochran
Su?ervi~nr_ Then nf ~n~thnld Title:
By:
Title:
By:
Title:
NOTICE AND DESIGNATION OF AGENT
1. The undersigned (~Customer") hereby notifies Swiss Bank
Corporation, New York Branch ('%SBC") that Customer has appointed
and designated The Suffolk County National Bank (~SCNB") as its
agent for the purposes set forth in the Agreement attached hereto
and that SBC is authorized add empowered to follow the
instructions of SCNB for Cus%omer's account pursuant tq Municipal
Advantage {as defined in the attached Agreement). Customer, by
its e~ecution hereof, ratifies and confirms in all respects each
and every such t~ansac~ion effected by SCNB in and for Customer's
account Pursuant to. Municipal Advantage.
2. This Notice and the authorization shall continue in
full force and effect, and SBC, its successors and assigns Shall
be entitled to rely thereon, until SBC shall have received
written notice executed by Customer, of its revocation, and such
revocation or termination shall in no way affect the validity of
this Notice, or the liability of Customer under the indemnity
granted to SBC, with~respect to any transaction initiated by SCNB
prior to the actual receipt by SBC of the written notice of
revocation as provided in this paragraph.
CUstomer
By:
Title:
Date:
TI--IESU~O~KC01JINTY'NA~ONAI~Ik~dg'K ;
INDEMNIFICATION, Except tha~Cu~to~ shall not be liable for any
~os, s or expense that is determined to be the direct result of acts or
~bmbssion o~f The Suffolk County National Bank constituting negligence or
~&~tful hereby indemnifies and holds harmless The
S~fo~ from and against any and all claims, damages,
l~Ss~s, including attorney~'
fees and r reason
Eomer under this
received frQm. Custom~r=
the obligatbon oY £ustomer to
Couf:m.f~..Nat'i,o.nal,B~nkrsha~'! survi~
)le t~ t:;~Ie Customer
~].. o~her ~ncidental.or
~es
'!'he Suf~o!k C~n~y. N6tiona!
nrofit~.,..lost.,s~figs or
7. M ISCEL,~E~ .1
~ 'Tt~?S ~em~rl~ m~¥ be amended on~y by a~, instrument in writing
execu~d~ bY ~1I ,[~ar~ies. he~to. ~
(b).~/C~p~tDmez may n?t assign any of its ,r~gkts ;or obti~a~i~s
here~de~~ w~O~' tbs ~rit~,en consent of The S~f;o%lk. Go~ .National Bank.
A~y Progis~~'',thi~ kgr~ement may~ be modified~ O:~'~aive~ ~ly-by an
instr~ent i~ .w~i~ting executed by the party granting ~the~ Waiver,
(c) Th~s Agreement shall be governed by and construed in accordance
with the law~ of the State of New York.
(d) T~S Agreement sets forth the entzre agreement and understanding
amon~ the p~ti~s hereto w{th respect~ to the subject ~tter hereof and
supe~sede'~ ~-'~rior negotiations, agreements, understandings or
arrangement~ among- the pa~ties hereto with respect to the subject matter
hereof.
IN WITNESS WHEREOF, the undersigned have
the date first above written.
(Customer)
By:
Title:
Bank
Cochran
~t~.nerv~r_ Tn~n nf Sn~thnld Title:
execu5ed this Agreement as of
By:
Title:
By:
Title:
NOTICE AND DESIGNATION OF AGENT
1. The undersigned (~Customer") hereby notifies Swiss Bank
Corporation, New York BranCh ("SBC~) that Customer has appointed
and designated The Suffolk County National Bank (~SCNB") as its
agent for the purposes set forth in the Agreement attached hereto
and that SBC is authorized and empowered to follow the
instructions of SCNB for Customer's account pursuant to Municipal
Advantage (as defined in the attached Agreement). Customer, by'~
its execution hereof, ratifies and confirms in all respects each
and every such transaction effected by SCNB in and for Customer's
account pursuant to Municipal Advantage.
2. This Notice and the authorization shall continue in
full force and effect, and SBC, its successors and assigns shall
be entitled to rely thereon, until SBC shall have received
written notice executed by Customer, of its revocation, and such
revocation or termination shall in no way affect the validity of
this Notice, or the liability of Customer under the indemnity
granted to SBC, with respect To any transaction initiated by SCNB
prior to the actual~receip~ by SBC of the written notice of
revocation as provided in this paragraph.
Custome~ % ~
By: ~x/ C~-~
Title: Supervisor
Date: March 16, 1998
'" 10111196
.; . ,. ,Oatedas of.
~ge~t~r ~uyer
~ a~rS'
, Fr~m~ qe jg ]~e ~E p~es, h~toway ehter into lransacaons m whmh one pa~ ( Seller } agrees to
~a sfer to lh~ ~[~r [ Buyer ) ~rlh~ or fm~c~al ~nsffum~s, ~ Secur~les ) against the transfer of funds
by Buyer. w~t0 a sm~ullaneous agroemenl by Buyer lo lr~n~fer 1o Se!lot such S~nhes at a da~ ceda n or on
demaP(l~.ahgin~l ~l~e Imn~fer.ot h ~(.f~ by Seller E~ch su';h lranzaclion sl,al~ 6e ref~md to.her~n as a ~ansa~on"
and ~i,all Im (3ov(}lrte{:~ 3y [,~s A~i,oomon. mclodmg any SUl~plomonl,M terms or ~nditionscon~ined ~ Annex
I her~[o urtle~{R olho~wiso aqreed ill writing.
,, , ..", ,'... ~",.. .... · .,,,. ~ .............. , .. , , ,', .... , ~ecomme~menl by su~ pa~ as ~blor or,any
,'a,, ....... ...... (",,,'I ~ ........ . . ~, ',r.'..". ,,., ..... :."..,.,'..v:/, "rgan~a~,[quidat{on, dissolut~n'orsimilartaW, or
,' :.. : , I... ¢ .'~ .:. I., : ....."."," .:., .: ,..- '. ,:I,,.], cust~ian or similar offcial~or, such
"" ' ' ' ' "'" "e ~"'t sbch case or~roce~Jng a~st such pady,
:'~ ......: ' '~" '~ ' ' : ..........:"" .... .'" · . "' ~' ~sdy of an application ~or a pro~eclive decree
........ ' ' h (A} ' ted 1o ' ely
..... , ,:. ., ', ,. ! .. "...: ', 1:970, whlc ~S ~n~8o or'~ot tim
"' : - . · "~ ' ' ,..' . '. · . "" . fer [or ~ei ef such ~ appo. ~tment:. ~e isSUance of
"' .' ...... . '" similar effect or (C) is not dismissed within 15 days
' ' benefit of editors or (ivJ the adm ssion n wdt ng
.... ' >'" ' ~ as t~dy
, ? % ', · ' ' "" .... , ........ , ':','"" ~=". ' " -bec~e due:
" ..... ,t.io Parag,,
,',' '. · ':' :'=";" 'vw ' ~:. '.u~ ",'~ .?':'.: ,'"" "'"'..ided hy~eller:to Buyer pur~ua- )
,,' .. ¥,', ,= '.", .' A. :,.:.' ~='i' :.,, r,' I I: .~ ~ ,~ ~n~abtion as Of any~ale;~[he-amoant obtained, by
'l' .:,"' :~' '.'~ '*. ',?,',:'::':. "~,' ..... , ,v k,) ,',:..;, ' ",: tercentage that.s a~reed.lo :~s Ihe Seller's. Margin
.~,~ ~,,., ......... ~..;; r., .,,:..-: · ,:; ..l '....: .' ,...: .i.. , ',,ed to by Buyer and Seller pdor to entering into the
:'." ", ......·"" '...: · · .': ' ,, "" ~ "' ' ....... asoisuch date: '
· ~ ('.' "": :". .... ' ' .... ~ :,~ ........ ~ "~',;', "':~h'3(b~here0f; ,:'~ "~
' ' ' c*p ' Ih ':~
:".'I .... ~. "~ :'"' ". =:. "' , ....... .'='. · , ' ",' a~:~nn ~ al ther~f' en payable dali rote[est.
...... ~h 4(a) hereof,
.., .& ............. , ..... ..-'-- ~...,~. ,
"= · . .......... of ~ny date, lhe pnc~ for such.Secunfi~ on such
· · ~ ..... ~,') .... ' ' '.' , ' . ".,":, · ' ...... :': '."al.lo by ~e pa~les ~ the mo~ 'recent'closing
;'.' '.': ...... ,': ' ,,?, "' .": ...... ~ ,," ,' ,, ' ~ ",' ........ ,' e~ten[ ~t indudedlherein:(o~her than rany Income
,.,,'d ~ ..... ~ :L";t,~? ;.". f ' ,..? ...:.~ .............. ": i ....... . , · Se let pursuant m Para~mp~ ~ ~efeof)-a~'of such
, ( ...... s%
' ' ~'~' '~ ~' . '~ '.~ '~ ' ' '," .,- ' ' ' ' '~ , ", .... h~reonder ~T~n~date t~e'~qgregat~ a~unt
~... '".~ '?:, '. ~J ~,),'I: ~:., .v · ." .',.,, ~ ,.,",, ',".'.,, '.,' ,' , , ",'~Sa~tm~:.to (h~ ~rc~ase Pncef~suCh
"~: ', :T~.~; 'd.,;' I ,?.v,,o, I',',' - ?., :'.', ',.".. ',~ .~.. ~,,', ' "s, ,v~dn~ .the pe~od c~m~encin~ ~n:~and indlud~)
(j) "Pricing Rate': the per annum percentage tale fOr determination O4 the Price Differential:
(k] "Prime Rate". Ihe prime rate of U.S. money center commercial banks as published in The Wall Street
Journal;
(I) "Purchase Date': the date on which Purchased Securities are frans[erred by Seller to Buyer;
tm) "Purchase Price", ti) on the Purchase Date. the pnce at which Purchased Securities are transferred
by Seller to Buyer, and (ii) thereafter, such pdce increased by the amount of any cash transferred by Buyer to
Seller pursuant to Paragraph 4lb) hereof and decreased Dy the amount of any cash transferred by Seller to
Buyer pursuant to Paragraph 4la) hereof or applied to reduce Seller's obligations under clause (ii) of Paragraph
5 hereof;
tn) "Purchased Securities'; the Securities transferred by Seller to Buyer in a Transaction hereunder, anO
any Securities substituted Iherefor in accordance with Paragraph 9 hereof. The term "Purchased Secunties"
w~th respect to any Transaction at any time also shall include Additional Purchased Securities delivered pursuant
to Paragraph 4la) and shall exclude Securities relurne(~ pursuant to Paragraph 4lb};
(O) "Repurchase Date". the date on which Seller is to repurchase the Purchased Securities from Buyer,
including any date deterrmned by application of the provisions of Paragraphs 3(c) or t 1 hereof;
(p) "Repurchase Price", the pnce at which Purchased Securities are rD De transferred from Buyer to Seller
upon termination O4 a Transaction. which will be determined in each case (including Transactions terminable
upon demand) as the sum of the Purchase Price and the Price Differential as of the date of such determination.
increased by any amount delermined by the application of Ihe provisions of Paragraph t 1 hereof;
lq) "Seller's Margin Amount". with respecl to any Transaction as of any date, the amount obtained by
application of a percentage (which may be equal to the percentage that is agreed [o as the Buyer's Margin
Amount under subparagraph lc) of this Paragraph), agreed to by Buyer and Seller prior to entering into the
Transaction. to the Repurchase Pdce for such Transaction as ot such date.
3. Initiation; Confirmation; Termination
la) An agreement to enter into a Transaction may be made orally or in writing at the in[lid[ion of either
Buyer or Seller. On the Purchase Date for the Transaction, the Purchased. Securities shall be lransferred to
Buyer or its agent against the transfer of the Purchase Price to an account ot Sailer.
lb) Upon agreeing to enter into a Transaction hereunder, Buyer or Seller (or both}, as shall be agreed.
shall promptly deliver to the other pauly a written confirmation of each Transaction (a '*Confirmalion"). The
Confirmation shall describe the Purchased Securities (including CUSIP number, if any), identify Buyer and
Seller and set forth (il the Purchase Date, (ii) the Purchase Price. (iii) tile Repurchase Date, unless the
Transaction is 1o be terminable on demand. (iv] the Pricing Rate or Repurchase Price applicable to the
Transaction, and tv) any additional terms or conditions of the Transaction not [neons[slant with this Agreement.
The Confirmation. together with this Agreement, shall constitute conclusive evidence of the terms agtee(l
between Buyerand Seller withYespect to the Transaction to which the Coofirma;~ion relates, unless with respect
to lhe Con,irma[ion specific objection is made promptly after receipt thereof. In the event of any conflict between
the terms of such Confirmation and this Agreement, this Agreement shall prevail.
lc) In the case ot Transactions terminable upon demand, such demand sha~l be made by Buyer or Seller,
no later than such time as is customary in accordance with market practice, by telephone or otherwise on or
prior to the business day on which such termination will be et[active. On the c~ale specified in such derhand.
or on the date fixed tot termination in the case ol Transactions having a fixed term. terminalion of the Transaction
will be erected by transfer to Seller or its agent of the Purchased Securities and any Income in respect thereof
received by Buyer (and not previously credited or transferred to. or applied to the obligb, tions of, Seller pursuant
Io Paragraph 5 hereof) against the transfer of the Repurchase Pdce to an account of Buyer.
4. Margin Maintenance
la) If at any lime the aggregale Market Value of all Purchased Securilies subject to all Transactions m
which a particular party hereto is acting as Buyer is less than the aggregate Buyer's Margin Amount for all
such Transactions (a "Margin Deficil"). then Buyer may by nolice to Seller require Seller in such Transactions,
al Seller? option, to transfer to Buyer cash or additional Secunliea reasonably acceptable
ID Buyer ( 'Additional Purchased Securities"), so that the cash and aggregate Market Value of the Purchased
Securities, including any such Additional Purchased Securities. will thereupon equal or exceed such aggregate
Buyer's Margin Amount Idecreased by the amount O4 any Margin Deficit as O4 such date arising from any
Transactions in which such Buyer is acting as Seller).
(b) If at any time the aggregate ,Market Value of all Purchased Seconties subject to all Transactions in
which a particular party hereto is acting as Se)let exceeds the aggregate Seller's Margin Ameunt for all Such
Transactions at such time (a "Margin Excess'J), then Seller may by notice to Buyer require Buyer rn such
Transactions, at Buyer's option, totransfer cash or Purchased Securities to Seller, so thai the aggregate Marke~,
Value of the Purchased Securities. after deduction o4 any such cash or any Purchased Securities so transferred,
will thereupon no[ exceed such aggregate Seller's Margin Amount [increased by the amount of any Margin
Excess asof such date ansmg from any Transactions in which such Seller is acting as Buyerl.
lc) Any cash translerred pursuam ID this Paragraph shall be attributed to such Transactions as shall be
agreed upon Dy Buyer and Seller
2
Id,) Seller and Buyer may agree, with respect to any or all Transactiohs.hereunder, that therCeSpecfive
rights ,of'Buyer, ar Seller (or: boil1)under s~O~paragraph~ (a' ~'¥~ '~"~ '~r~-~r~ ~v"~-~ ;~,..
13rior tO elllorirlg inlo nnv stroll3
rfgh s oF BIJyer and Seller under suhparaqrRph., (R) .nd (b) el Ihfs Para~ ~b ~equire~e ~imlnat~:~ a
Marg n De c r,r a Margin Excess. a~ 1~ cR~e tory )o. may bo oxorcBSOd w~ene?er SU~ ~ MRr~m Defl~ or
. M~rgin Excess exists with re~e~t [oTRny ~irlqle ii~f~sqction.horounde~ ~CRl~ulh{od'withou(~eg~rd.~o anyot ~er
Tran~ct]on oulsl~hdidq under It~is Aqroomnpll
~. lnc~me~ p~y~ents
Wl~er~ a had~eular TransRction's lerm ext~d~ over an Income payment dale on th~b~rilio~ suO~ct ~0
Ih~t .Transaclion..Buyer shall, as lbo eartios rq~ Cg~ee wi~h rospecl to such ]~arsaclion ~br. i~ [ho absefice of
any agro~m~nr .as' Buyer sn~ll reasonably d~e?fine m d~ di~crolion}, on Ihe dale such 'l~me is p~yablo
wdh respec ~o:nny .~,chnsod ,=, ,.u,l e,, ~ul .... '~n SH(:h [~an~aclK3rt o~ (ii) apply thb lac~rne paytaen[ or
p~vm-~ts ~'dOce Ihb.amount lo'l,d/termir, r~,~t'lo ,BH ,,,r by Seller upon'to~in~lion di'lh~'Tra~ction
, - .... ,..... .~. · .... .... , . .. ?,. ,. . . . ~ . ~ . . : -.
shall not bo.~hhoRlod .Io fake any,achor~.p=,~m~l~k) !h~ preceding ~olll~lco. to'lbo oxtonl I~Rt such,~ctlon
wm~Id ~bAO.l.I in,,l'?icrenf~on.hf :~ ~g~9,t.[)q~lCl~. t)di~ Dr~)r Ihsrolo Or mmultaneously'.thor~wd~Rq!lor
6. Se~un~Jr~erest .,
Althoughjl e=paQ~es ~n/end ~lhnl nil TrarJ..,3c!,ons hereunder be sales end pu chases~and~nol~loans.~m
even~[~h~' ~i.~n~Ac{ions ar~: ~obrn~d 'Io be,k~nps. SeiZer shall bo doomed Io have '~lod~ed to BuYer as
~ecur'~[v ~or.thO ')~dorm~nce hy Seller of dF (3hh(]=Wur=s u~der each such'~ansaclioa; nr{~J' ~r~all he deemed to
have~anle~f~uy~r.'a ~ecflnfv i.loros~ m all of Ihe Purcl,~d Secu~iiies:wifll respect.to',~ll 7raPse~tions
horeundor-~nd ~ll ,proceeds lhereol. ~, · ....
7: .:, .;. ;. .
~yallable [und~.
All
,~ ~th, s~tem
9o?erni~
SeCUre,alien
'a~finbncial
ootor o([r ;os Or hoses0bec o~J~s..Agmemenland'.
seq~oqaled nl all I~mes. unless ~n.l[,s~Agreeme~t Buyer.
e~ w~l~S~llo s(wn socurles dtlrT[lgtl~l~n~rtgd,~y.;
~n ~JyerssecLr~ esae'comt~[ge~;wdhSolfers.'
hens granted by Seller Io [d~icloar,n~.bank~ Iii.rd
? ~o~o [o~l~ O S JbSlllO e ~ctlr~l e~Ji or Buyer wdl
onrna] ~;{rw~ honor oeha 3stJ~Sl JlOSeCLJ[[es, ~ ~
3
9. Substitution
(a) Seller may, subject to agreement w~th and acceptance by E~uyer. substitule other Securities Ior any
Purchased Securities. Such substitution shall be made by transfer Id Buyer of such other Securities an(~
Iransler to Seller of such Purchased Securities, Attar substitution, the substituted Securities shall be deemed
to be Purchased Securities.
(b) In Transactions in which the Seller relalns cuslody ct Purchased Securities. the parties expressly
agree that Eluyer shall be deemed, lot purposes ct subparagraph (a) of this Paragraph, to have agreed to and
accepted in this Agreement substilution by Seller of other Securities for Purchased Securities; provided,
however, thal such o~her Securities shall have a Market Value at least equal to the Markel Value of the
Purchased Securities for which they are substituted.
t0. Representations
Each of Buyer and Seller represents and warrants lO the ct'her that [i) it is duty authonzed lo execute and
deliver this Agreement, to enter into the Transactions contemplated hereunder and to perform ~ls obligations
hereunder and has taken all necessary action to authorize suct] execution, delivery and performance. (ii) it
will engage in such Transactions as principal (or, if agreed in wnting in a(3vance of any Transaction by the other
party hereto, as agent for a disclosed principal), {ii~ the person signing this Agreement on its behall is duly
authorized to do so on its behalf {or on behalf of any such discloso~ principal), {iv) it has obtained ali authOnZations
ol any governmental body required in connection with this Agreemenl and the Transactions hereunder and
such authorizations are in full force and e~lect and tv) the execution, delivery and performance of this Agreement
and the Transactions hereunder will not violate any law. ordinance, charter, by-law or rule applicable to it or
any agreement by which it is bound or by which any ct its assets ere affected. On the Purchase Date for any
Transaction Buyer and Seller shall each be deemed to repeat afl the foregoing representations made by it.
t ]. Events of Default
.hi the event that ri) Seller fai~s {o repurchase or Buyer faits Id transfer Purchased Securities upon the
applicable Repurchase Date, (ii) Seller or Buyer falle, alter one bus,ness day's notice, to comply with Paragraph
4 hereof, (iii) Buyer tells to comply with Paragraph 5 hereol. (iv) an Act of Insolvency occurs with respect to
Seller or Buyer. tv) any representation made by Sailer or Buyer shall have been incorrect or untrue in any
matedal respect when made or repeated or deemed to have been made or repealed, or [vi) Seller or Buyer
shall admit to the other its inability to, or its intention not Id. perform any of its obligations hereunder (each an
*'Event of Default"):
la) At Ihe option of the nondetaulting party, exercised by wdtle.n notice to the defaulting pmty (which option
shall be deemed to have been exercised, even if no notice is given, ~mmediately upqn the occurrence of an
Act o~ Insolvency), the Repurchase Date for each Transaction hereunder' shall be deemed immediately to
Occur.
(b) in all Transactions in which the defaulting party is acting as Seller. if the nondeleulting party exercises
or is deemed to have exercised the option referred to in suOparagraph (a) ol this Paragraph, ri) the defaulting
party's obligations hereunder to repurchase ali Purchased Secuntlas ~n such Transactions shall thereupon
become immediately due and payable, (ii)to the ex[eh( permitted by applicable law, the Repurchase Price
with respect to each such Transaction shalJ be increased by the aggregate amount obtained by daily application
of tx) the greater ol the Pricing Rate for such Transaction or the Prime Rate to (y) the Repurchase Pdce for
such Transaction as of the Repurchase Date as determined pursuant ~o subperegraph (a) of this Paragraph
(decreased as of any day by (A) any amounts retained by the nondefaulting party with respect to such
Repurchase Price pursuant to clause (iii) of this subparagraph, (B) any proceeds from the saleof Purchased
Securities pursuant to subparagraph rd)ri) of this Paragraph, and (C) any amounts credited to the account ol
the defaulting party pursuant to subparagraph re) ct this Paragrapnj on a 360 day per year basis for the actual
number ol days dudng the period from and including the date of the Event of Default giving rise to such option
to but excluding the date of payment ol the Repurchase Price as so increased, (iii) all Income paid after such
exercise or deemed exercise shall be retained by the nondefaulting party and applied to the aggregate unpaid
Repurchase Prices owed by the delaulting party, and (iv) the defaulting party shall immediately deliver to the
nondelaulting party any Purchased Securi{~as subject to such Transactions then in the defaulting party's possession.
(c) in all Transactions in which the defaulting party is acting as Buyer upon tender by-the nondefqulting
pady ct payment of the aggregateRepurchasa Prices lot att such Transactions. the defaulting parly's right.
title and interest in all Purchased Securities subject to such Transactions shall be deemed transferred to the
nondelaulting party, and the defaulting party shall deliver alt such Purchased Securitie~ to the nondefaulting
party.
rd) A~ter one business day's notice to the defaulting party (whiCh notice need not be given if an Act of
Insolvency shall have occurred, and which may bathe notice g~ven under subparagraph (a) of thi§ Paragraph
or the notice referred to in clause (i~ of the first sentence of this Paragraph). the nondefaulting party may:
(0 as to Transactions -in which the delaulting party is acting as Seller. (A) immediately sell. ~n a
recognized market at such price or prices as the nondelaulting party may reasonably deem satislaclo~y.
any or afl Purchased Securities subtect to such .Transactions and apply the proceeds thereof to toe
aggregate unpaid Repurchase Prices and any other amoun[s owing by the defaulting party hereunder
4
' ~r (B)~ !ts sole discre~on elect; in lieu of selling ~! Or ~a pod ~ o~ SuCh pUrcha~d Se~d~, t0
~;~[ng Pady ~[t fO~ ~ucl~ ~rCha~d.~u~eS ~mount; eq~ai to t~;~:~c~ ~h~i6[ o~ S~Ch
-sour~ against ihe aggregate U~paid RePUrchSs6 PffceS and any ~ther amoU~tS~d~ 5~:t~ a~fauiting
pa~ ~munder; and
¢) as [o Wansaca~s in which the defau tng pa~ s act ng as BuVer,: ~AI her~b
~ ;, ~Repace~pl.~ntms,)of ~e same~ca~=a~amoun[ ~ any Purcbas~ S~ur~es~hat are not
' . d~crohc~l old,ct. ~r~ hou of pu~has~r,(3 ['l~pi~cOmelff Socurilios. Io bo deemed to have purchas~
:, . ' (o) As Io Tr~n~ctio0s m which lh~ defaul[~nq p~dy'm'Rclir~q as Duyer Ih~ defmflli~g pa'H~t ;s ~hll'be iabl~
Io lho nondefnlJlfing party. (i) wilh rosl)oct fo ['tlrEhRsod Securilio~ (other Ihnn Ad(Jdional ~rchnsed Securities).
[or any excess cf lhe price paid (or d,~nm~d phi(f) by lbo r'ondefaulling pnrly ior Replncornenl Securities
II~omfor over tho 1 toptirchns~ r'[ico for ~tJCh [?lltCh;Tso(J Sn(;tJHhe~ and (i~) wdh mst;ecl (o A('fdilionae Purchased
~..Socur l=o~'.t'~f~t the p,.ic~ )afd (o~ (f(}on err paid) by ll,~,.rmndefmjffir~ p~r y for ~o;Roplac~n ~n S~curties
· : ............... . ,. , ....
~ ~here~or. ~nmd¢~?on~4he.defau,q~,,g parly shall be haMo,~o.lhe nonderaulhng paH~ f~.)r reforest op'~ich.mma {ng
~bfsJCJlp rc~ase~or'do~m ), 'd~a~ ~ad 1~( I~v[]JVOr'SJ~ f ~ro~ ~ a )'ha arat~ja
:~,groaler ofdhe~?~c~g.~lte~ld'( 5udh~TrRnsactian or flf~ Prir~e.~ale. ~. '. '~ . - ': ', '.'~""* - '
, ..of wh.ch II]e ddau~hng parJy,s nc,rog a~ Buye, ~hafl not'h~(.roaso~3 )ove't lo a ~ o ~ pi ~ ch Ropbrc ~se'P~ ce
or,~(' [arsac o~.d~er~ e 'ns'of odn~>f ~x~'~soo' on~8~x~frsr b~t~n ~n~{- ,r.,~%~,,,
of d~ or>h~n.under.subpa~agral~h (a)"'ol Ih,s.~amurnph.' . ' ~' ..... ~ '.. ' ·
. . ~,,(a) The Uofaul mg pady s ~a be I able.to Iho'~noudef~ul u o'pn tv for.I - ,~mount ~)f a 'rb~sOt ~b b. e~- ~r
· ~:'.. ,...', 3;. -'. · .. .. ' ' . .~, ,, ?. . ' ". · .. ~. ' .
~othcr 'expb~sos?ancurred 'hy.,the .non( e~a jI ng pa y ~r co ~ ~ec o ~'~,w ti3 ~r '~s a do ~luencb~'a~genl of
'[ialls~(:~on er'Ibc Prim~ Rate. ' ' "' ' ; "~' · ' · "*.'.' '. ' '
(I0 ~he nohdofnu!~ir~g pa~y shall have. ~n addihon h).dS nghl~ hereunder, nny nghls olho~wise available
to ~1 under 3ny blhor a~rdomonl or np[31icaMe law. '
'12,~.Smgle~gree~enl '~
~,~i~e~g~id'~& er ac~w~dTe a n~d ~nve e~ered ore 3o and w e3ter no each'Tra~saclon
he~uh~e~gj~sM~r~hon.o['.~nd m rehance u :eh lbo fa; mt a~ Tr~ ~ac ions ere ~ ~dor const [ui~ E s na e
t,, ~ntfflnd I(; ~ ol~ c~mn'S nf,d,ai~ly proper;y held by
Ihnrr, ~n r~..,[ ..c. of any Tr.,qnsa<.;l:on ;~i,3;psl oi)Ituahcns owm(j Jo Ihom ~n rofipocl nr .ar~y other
~ero ~n4br .~nd {iii) Ih;it p;~ynfnt, l~s do~i{" des ~{~ o ~ ~:~" .3 sfe s made by either of' I om in m~p¢~t of nnv
],~zrl~'~lon~snall bo ~Jeomc, cf:loihave bner~ made m cnns~derat~on )f )ay 3 s Jo v~ ,es ~ 3d o {o . r,~nsfnrs
13: NdflceS ~nd~h~ CO~nlcatiOns.; r~ ~ ~, '~ '
,, i~ ~ ess anothe'r address js ~pec ind in W~[ hg'i~y [ ~ re~eCl vo pad~ tbr'Wliom ~'~ ~iOti~e 0Y~th~r corn
muJ~lcal~on ~S 1(3 b.? g~vert~?roundek a,I such nelsons or r:ommun~cnlJOOS ~hall bo m 'bnlinq or conlirmed in
wn[t~ g and.d~hver~d at the 'rosl~oclivo n(J(.fm~es sql [nHh m Adnox II allached
,~,~(I i ,~f)o,:.dor,l fto,u .3ny ~,ft,,,,: p,ovm,,~,, 0r agr~ement,heTein a~ shall be ~fifor~ie ~iths~ndi~g the
15 Non.n~iWn~hillly: Tbunlnnflo. :, ,
5
16. Governing Law
This Agreement shall be governed by the laws of the State of New York without giving effect to the contlic!
et law principles thereof.
17~ No Waivers, Etc.
No express or implied waiver et any Event of Default by either party shall constitute a waiver of any other
Event of Default and no exercise of any reme(Jy hereunder by any party shall constitute a waiver of its right
to exercise any other remedy hereunder. No modification or waiver et any provision of this Agreemen! uno no
consent by any pady to a departure herefrom shall be effective unless and until such shall be in writing and
duly executed by both ot the paraes hereto, Without limitation on any et the loregoing, the failure to give a
notice pursuant to subparagraphs 4la) or 4lb) hereol will not constitute a waiver et any right to do so at a later
date.
18.' Use of Employee Plan Assets
la) tl assets el an employee benefit plan subject to any provision of the Employee Retirement Income
Security Actor 1974 ("ERISA"I are intended to be use(3 by either party hereto (the "Plan Party") in a Transaction,
the Plan Party shall so notify the other party pnor to the Transaction. The Plan Party sba ,represent in writing
to the other party that the Transaction does not conat~tute a prohibiled transaction under ERISA or is otherwme
' exempt therefrom, and the other pony may proceed in reliance thereon but shall not be required so to proceed.
lb) Subject to the last sentence et subparagraph la) of this Paragraph. any such Transaction shall proceea
only it Seller furnishes or has furnished to Buyer ils most recent available audrted statemem et its financial
condition and its most recenl subsequent unaudited statement el its linanciai condition.
lc) By entering into a Transaction pursuant to this Paragraph. Seller shall be deemed ti) to represent [o
Buyer lhat since the date of Sellers iatesl such financial statements, there has been no matedal adverse
change in Seller's financial condition which Seller has not disclosed lo Buyer. and (ii) to agree to provide Buyer
with ~uture audited and unaudited statements of its financial condition as they are issued, so long as it is a
Seller in any outstanding Transaction involving a Plan Party.
19. Intent
{a) The parties recognize that each Transaction is a "repurchase agreement" as that term is defined in
Section 101 of Title t I of Ihe United States Code, as amended (excepl insofar as the type of Securities subject
to such Transaction or the term of such Transaction would render such definition inapplicable), and a "securities
contract" as that term is de[ined in Section 741 et Title 11 of the United Slates Code, as amended.
(b) It is understood that either pady's right to liquidate Secudlies delivered lo it in connection with Transactions
hereunder otto exercise any other remedies pursuant to Paragraph 1;I hereol, is a contractual right to liquidate
such Transaction as desedbed in Sections 555 and 559 of Title 1 t el' the United States Code. as amended.
20. Disclosure Relating to Certain Federal Protections
The parties acknowledge that they have been advised that:
(a) in the case el Transactions in which one of the parties ts a broker or dealer registered with the
Securities and Exchange Commission ("SEC") under Section 15 of the Securflies Exchange Act el 1934
("1934 Act"), the Securities Investor Protection Corporation has taken the position that the provisions el
the Securities Investor Protection Act el~ t970 ("SIPA;') do not protect the other party wilh respect to any
Transaction hereunder;
lb) in the case of Transactions in which one el the parties is a government securities broker or,a
government securities dealer registered with ~r~e SEC under Section 15C el the 1934 Act, SIPA will not
provide protection Io the oUler porty wi!h respect Io any Transaction hereunder; and
(c) in the case of Transactions in which one of the parties is a financial institution_ funds held by the
financial institution pursuant th a Transaction hereunder are not a deposit and therelore are not insured
by the Federal Deposit Insurance Corporation. the Federal Savings and Loan Insurance Corporation or
the National Credit Union Share IAsurance Fund. as applicable.
[Name of Pa~y] [Name o~Pa~y]
The Suffolk Count~ National Bank, as ~s BankfCo~or~tton, as Seller
By 0
- Title SVP ~= Trugt Officer ~tle Assoclate
Oate October ll, 1996 Oate October 11, 1996
ANNEX I
Supplem~l{~l~erms and~nditlons
The Suffolk County National Bank is acting hereunder as agent
for it's customers who are identified on Appendix A of the
Cns~odial Agency Annex under the Custodial llndertakiug in
C~nne~tion~ wish ~s~r Repar~hase Agreement between
Suf~ C6an{y Na~i~al Bank, ap agen;t,. M~i~ Bank
a.s ~se!ler, a~a~The ~ank~of New .York, as c~stodi~. Th~
p~inctpai ~$ed On 11 ~e a~ ~dep~nda~t righ~
~ ~fbr~e- ~i~ ~a~ A~reeme~t as a ,~uye~ fn the
ANNEX II
Names and Addresses for Communications Between Parties
CUSTODIAL UNDERTAKING IN CO~ON
WITH M~TER REPURCHASE AGREEMENT
BY AND 33vIONG
(Buyer)
AND
SWISS' BANK CORPORATION
(Seller)
THE BANK OF NEW YORK
(Custodian)
(PSA) RepoNet
SBCRNET. DOC
and Ca~to~an.' :n~t$ ~Vs~ov!~r' V~nER'rAK~q ~ made ~d ent~r~ inio ~ of the fl~te ~t fo~ bei6~ ~ ~d ~tong BW/et~ 5e~er,
~CiT~S
~p~e,. ~emenC~ ~d may from ~e t~ ~e enter into
.'Yrans~::m}Ps.with respect Io [~ligible Sec~zrilies (Rs hereinafte~defined){ and ' ~ ,~, ~ ~ ,~ ,~ ~
· . '..' .' ...,3.~; . . ·
· ',: WI~ER~Xs.'.Custo:lian has agr~etl I0 act ~ ~ent for B~'er and Sell,Erin order
more pa~ iicu[arly set h}rlh herein;
~ ~' ''. 7'. ~", .... :. ' %' ....
A. "Audmrized I'eesnn" sh;iU mean pnv ~eTson .whether Z)r]mt n v s ~h ~e~on s ~n~offiger or em
as Ihe case may,be, ~ltl~, a~.hnllZed to give C)~ al Instr~tcllonq :and ~.l~lten. [nstrt~ctic)ns.~m behalf of Buyer or Seller, such personl
~c-~:~,~ .~B~'~ok-Enlry.~. Securmes sha ......... .mean. ~*okcent~ .I re~q ~ect ~ 1 es (as,defin~dqr ~ubpart O~De~ent
~l~c~ar ~o. 300 31 C.f.R. 306) issued or guara eed 'cc y or ir rectv ~' ~ e"U a ted 5tates',~dv~coe
~st~htv of estabhsm.e;d of Ille Uniled' States ~ox'enlmenl :and regiMered in the form of an
Boo~ ~ S}qtep~ aqd, n} o,hel ~.~(.I.tles regzste~ ed IU the roma of ,m entl3 o. (he.re~}~ds of
f~r:~ecurtUes%mam~e~;at The~F~d~ral -P,~s~e Bank of New
any accoun! for the deposit of en~;h m connecfi6n there,~vith.
,,.,. c~. pa~, Pa~o~st Cmpany an8 an~ o~er de~g
coq~oralion *Sthin d~-meaning "~ Ner~:',q ~ In2~ ;'. ?f ~:,* {,~..fo;:.. (;ommer~al Code of ~e State of NewrYork. ~ ~ended
G. "Clearing Co~.0ration Securities" shall mean securities which are regastered m~tl~ name,of CustOHi~ ora~ nominee m
t maintained by
cash
;elected
&,~ Schedule l
lC l~lnlgin Vnlue~ Mmll nteml Om. amotmt obtn ned t~ ally cHlt~ the Mater ~e-~of ~eeu(lfle~ eont~ned In an EIIRIble
Po~olio~ the avpl~e~e Mn~n Pe~n~ge
~ L. ~ et, ~f S~ ~ ~ ~ r~pe~ tp ~ Secud~ ~ o~ ~te, ~e ~ of O) ~e m~ketv~ue of
s~h Seeufl ~ baaed on~t f~/~fl~ n~llq~le H~tn~ Hd price-for the pad'tar $~H~m~Rde a~ila~ to Cushman ~
-2-
pricing informaaon services which Custodian uses generally for pricing such Securities, and (ii) accrued but unpaid income
any, on the particular Security (to the ement not included therein). In the case of cash and certificaies ~5f deposit, the f~
amount shall be deemed the Market Value. In the event that Custodian is unaOle to obtain the price of a particular Seem
from such pricing information set'cas on any Business Day, the Market Value sball be as determined by Custodian in l
reasonable exercise of its discretion based on information furnished to Custodian by one or more brokers (excluding Seller)
such Security or Custodian may price such Security using a formula utilized by Custodian for such purpose in the ordinary couz
of its business.
M. "Notice of Default" shall mean a written notice delivered by Buyer to Custodian and Seller, or by Seller to Custodian a
Buyer, informing Custodian and the defaulting party of an Event of Default pursuant to Paragraph 11 of the Master Repurcha
Agreement and setting forth the specific Event of Default thereunder.
N, "Oral Instructions' shall mean verbal instructions received by Custodian from an Authorized Person.
O. "Physical Securities" shall mean securities and money market instruments issued in definitive form which are not Boo
Entry S~curities or Clearing Corporation Securities.
p. "Pricing Rate" shall mean ~flae rate ur percentage per annum that Seller offers, by way of the Communications System,
be used in computing the Repurchase Price for Transactions involving Eligible PortfoLios.
Q. "Purchased Portfolio" shal] mean u~ _Securities contained in an Eligible Portfolio~ which are transferred to Buye~
Account in connection with Transactions.
R. "Securities" shall mean Book-Entry Securities,.Cleafing Corporation Securities, Physical Securities and cash.
S. "SeUer's Account" shall mean Seller's clearing account maintained on Custodian's Government Secttrifies Clearant
System ("GSCS"), any other account in which Securities are held by Cust~llan on behalf of Seller pursuant to the terms of tN
Agreement and any account for the deposit of cash maintained in connection therewith.
T. "Written Instructions" shall mean written communications received by Custodian from an Authorized-Persnnby tele~
~hrough the Communications System or any other' electronic system whereby the receiver of such communications is able
verify by codes, passwords or otherwise with a reasonable degree of certainty the identity of the Sender of such communiealmns.
All references to time in this Custodial Undertaking shall mean the time in effect on that day in New York, New York
Except as may othenvise apply for Income payable on particular Securities or as othendse may be agreed m in writing by tN
parties hereto, all provisions in this Custodial Undertaking for the transfer, payment or receipt of funds shall mean transfer of
payment in, or receipt of, United Statns dollars in immediately available funds.
2, APPOINTMeNT OF CUSTODIAN;ACCOUNTS
A. Buyer and Seller hereby appoint Custodian as custodian of all Secudfie~ and cash at any time delivered to Custodian ir
connection with Transactions subject to this Cnstodial Undertaking and as their agent to effect Transactions. Custodian here~
accepts appointment as custodian and agent.
B. Buyer and Seller each authorizes and instructs Custodian m u*m~e the Book-Enuy System, Clearing Corporations and
the receipt and delivery of l~hysical certificates or any combination thereof .in connection with its performance hereunder. Book-
Entry Securities and Clearing Corporation Securities credited to Buyer's Account and Seller's Account ~ be represented h
account~ at the Book-Entry System and the appropriate Clearing Corporation in the name of Custodian or its nominee which
include only assets held by Custodian for its customers, Tramactious with respect m Book-EnUy Securities and Clearing
Corporation Securities will be effected in accordance with, and subject to, the rules and regulations of the Book-Entry System
and each Cleating Corporation, respectively,
3. REPRESENTATIONS AND WARRANi'II~S
A. [luyer. Seller and Custodian. Buyer, Seller and Cnstadian each represents and warrants, which representations and
warranties shall be deemed ~ be repeated on each Purchase Date mid each Repurchase Date, that:
~(i) Iris du~y orgat~ed and exisffi~ hfider the la~!o~' th~ ~ffri~c~6n of its organization with full power and authority to
execute and deliver thi~ Custodial Undertaking and to perform ~ of ~e duties and obligations to be performed by it hereunder;
· ~(ii) This ~ustodial Undertaking ~s, .~ each T~ansac~on (6/itti ~xespect to Buyer and S~ler o91)9 ~ be, legally and
. -~'ahc~¥ enter~l into, does not, and will not, wotate~auy ordinance, char!~,er,;_lSyd~%~nfl_e o~ statute, applicabl~ to ~t, and :is
~en{~r~e,able ~. ac. gor~.,c~e vath ~t~ ~e ~rn~? ~p~ ~ may he limited by b~tcy, mgo}ven~.,c-y or. aifftilar laws, or by eqmtable
9nnc~plesr~lating ~orlimi~ gcreclitors nglit~generaliy, and
.IL ~ .. E%~td.~¢r...R,:pr~5.~ntntlm~l;. ~gf"QU~.tQ~fal~. C,U.~ ~an f~-ther ,repres~ t~ ,wa~an. ts, ~C~;tepr,esenta6ons and
v.a~ fanuc5 shall be deemed to be ~ ei~eated on each Puri:hase Date and eacli Rep_~a.~ D~te~thal:
(~') l/:..~sa~e Yo~u~t,c. ompaTt,t~ath ~tspnnapal office at lg~allS~
. ~,la~} tt.~~gE~tni~. ~F~ [~ ~e,~meanin~, of 31 CF R 306 l15(g ) and maintains a. book-enuy
se~uri~i~aet~ .COrpor-Afiofi'in which it ho d~ Securities hereunder.
C. E~f.~Ct_~ .~!~ZB.t_~r. Buyer a~knqwle, dg~ and agre~ ~at,!t ~t~rimarilyiiable to Cl.~t0d[an/or
sausfac,on of all obhga! qns and habm,es arising or recurred ,heretmder m respecter ar~/Buyer Account(s}, w~thout'regard to
tl~e name(si in whkh an!' Bh):er'~ Aecount~ may )~e mahaained or any rights o[ rec~UrselBuyer may have against any ~rd party
for reiml:ursement of such x~l~ligation,; und liabilities.
~ ~!~hm~mg Rain. Seller sh~ ~t lnto,~e .Co~uo~,$~t~ m,a~rd~c~ ~ ~e ~e
sp~tfied in Schedule V 'he t~licing Rale Offered for Tr~ac~om ~l~g Eff~e Po~ogos (~ maY ~ from ~e pdc~g
~ate(J}offered m o her buyers)~. Seller shnll have the fight to ~b~sh ~d m~fiom ~ ~e s~e of Tr~acfom w~ch
~may~m.~la,dmg.:u arv t[Hle ~ath Bm'er. .
B. gqt~pl~ffilo T~0~bc~ons. ~uyer ~1 no,~. Seller ~o~h ~e Co~o~ S~em of iR a~e of Seller's
,.rte, ~o.emer ~r~nsnc~Jons~no later th~ the Gme specified in Schcd~c V md pro,de ~e a~regate P~e Pflce ~d EH~ble
Pot ffolio wiflvre~p~ct ther~to~ If Bwer dqes no[ notify Seller ~ s~ ~e ~d B~er had eff~ed ~ o~ght Tr~ac~on ~
Selleron e[. e~ t~13 sne~'Dny. B~e~ a~d~e er
~ '-' 1 'ti"" · " ' ' ·
c ~g I arc, ,.nm cffect~ tt a Pure nsc [rce eq alto~e a~egatemon~b~m~eA~tfor~e s~eor
similar Bhgd~le.t ol~oho thatlwns dze.~ubject of the Trans~ctmn effected on ~e pre~o~'Bmm~ D~
followii~g i ffonna6on: .- : :
the
(i~ the:PUrt~has~ Date .m3d Purch~e Price;
~ (~theRe~it~E~h~i~.ahaRe~urd~eVace(orrate);,ma ~- ~ ,. , ~.
(iii) name of B~,e~. ~' ~
D. ~~~. ny om amc sp~ed~ ~ed~e,~ ou ~e?~ Date, 3~er ~ ~er ~ ~e
to be tr~4fe~ed, to ~Sel.~r's .A~un~ the Eligible P~o~o ~M~ ~ ~e su~e~ ~ Tr~c6o~ on.su& ~e Date.
~ onnecup~ ther e~a~.. Se le.r ~hall e~her debar to Cust~ OrM or Written ~flom ~den~g ~ E~ble Po~o~0 to
sold. .[~" Seller. to,Bm'er..including, a desc~ i aiou ~etting.. fo~, . ~e f~e ~o~t. 0f ea~. ~. ~, ~e Eh~ble Po~o~o ~d ~here
a[,I,hcal,le~ the CUSIP tmml,er for each s,ch Security or ~ ~to~ to ~den~ ~e E~ble Po~o~o iff SeWer's Ac~t
to be tr,,n~l erred :to..l htver's AccotloL
-4-
E. . ' ., '. By thc linc specified un Schcdu~e V on thc Purchasc Date, Buyer shall transfer, or cause u
transferred, to Buyer's Account sufficient cash such that thc total cash balartce in Buyer's Account after such transfer equal
exceeds thc Pu~chasc Price c~Dt,ine, d in Selicr's Written Instructions.
5. EFFEuI-i. NG TRANSACTIONS
~. ~. On the Purchase Date for any Transaction subject to this Custodial Undertaking, Custodian si
transfer to Seller's Account cash from Buyer's Account in an amount equal m the Purchase Price and transfer from Sell
Account to Buyer's Account the Eligible Portfolio in accordance with Seller's Written Instructious with respect to st
Transacuon, subject to the following provisions:
(i) Determination of Eli_t, ibte Portfolio: Negotiability. Custodian shall determine that Securities to be transferred
Buyer's Account are pact of the Eligible Portfolio and that Physical Securities are in negotiable form. Any Securities which ~
not par~ of the Eligible Portfolio and any Physical Securities which are not in negotiable form (except as required in. Paragra
4D) shall not be included in the calculations set forth below end shall not be transferred to Buyer's Account.
(ii) Determination of Mar_fin Value. Custodian shall determine the Margin Value of Eligible Portfolio m
transferred to Buyer's Account.
(iii) Payment of Purchase Price. Prosrkied the Margin Value of Eligible Portfolio to be transferred to Buyer's Accou
equals or exceeds the Purchase Price with res~pect to such Transaction, Custodian shall transfer such Eligible Portfolio fro
Seller's Account ~o Buyer's Account and shall disburse from BuyeFs Account to Seller's Account cash in an amount equal to ~
Purchase Price.
(iv) ]v[aimenance of Buyer's Account.
(a) ~. Custodian shall take possession of each Security in the Eligible Portfolio which is
Physical Security at a secured facility at one of its offices in New York City and, during the term of a partcular Transaction, sha
identify such Physical Securities un its books and rec. ords as belonging to Buyer.
(b) ~ul~lY~r~ttiti~. Each Security in the EligiblePorffolio which is either 0) a Book-Entry Security,
(ii) a part of a fungible bulk of Book-Entry Securities shall be continuously maintained by Custodian in the BoOk-Entry Systen
During the term of a particular Transaction, Custodian shall identify such Book-Entry Securities on its books and records
belonging to Buyer.
(c) Cleadn_~ Co _rporafion Securities. Each Security in the Eligible Portfolio which-is either (i) a Clearin
Corporation Security, or (ii) part of a fungible bulk of Clearing Corporation Securities shall be continuously maintained b.
Custodian in an account With the appropriate Cleating Corporation. During the term of a particular Transaction, Custodiar
shall continuously identify such Clearing Corporation Securities on its books and records as belonging to Buyer.
(v) · ~ ' - '- _ ' '.~;~ i _. Anything in"this Agreement to the contrary notwithstanding, Buyer understands and agree
that the transfer of a Security in the Eligible Portfolio hereunder may result in the Buyer's Acctunt being credited with a Securit:
in a denomination le~ than (i) the minimum customary unit of trading in the market for such Security, 0r (ii) the minimun
denomination in which such Security is issued, or both.
(vi) lptent of Buvex and Seller. Buyer and Seller agree that it is intended that Custodian act as a "finencia'
intermedia~-3e' as such t~rm is defined in Section 8-313 of the UCC with respect to Transactions hereunder and that each transfe~
of Securities effected by Custodian hereunder shall b¢a "transfer' of securities as provided in Section 8-313 of the UCC.
fi. ~sltLi~e,f,f,]g~ Custodian is hexeby authorized and directed to accept trust receipts (each, a "Trust Receipt')
evider/cing either the holding by the issuer of such Trust P~ece~pt (a 'Trust Receipt ts.suer") of one or more Secufiti~ in the
Eligible Portfolio subject to Transections or the crediting by the Trust Receipt Issuer, tO the account of Custodian of one or more
Securities in the FAigible Portfolio subject to Transactions. Trust Receipt Issuers from whom Custodian may accept Trust
Receipts in connection With Transactions hereunder shall be listed on Schedule I attached hereto, as such Schedule ! may be
amended from time to time. Custodian shall hold each Trust Receipt at a secure facility at one at its offices in New York City
an~, during the term of a particula~ Transactinr~, shall identify the Securities described in such Trust Receipt on its books and
records as belonging to Buyer.
· ~. C~todiari's Inability to Comulete a' Transa ~c~iOn(. If C~to~ Ls unable to complete a Transaction because Seller has
lail~d lo p[osqde ~plete~Wntten Instructions as reclmre~t by parag~a~fi ~C or either Buyer or S~eLler has failed to mange for
-~: ,the lransfer of sufficient cash or Eligible Portfolio Se rtj es t0 uyes ~ Account or Seller s ACcount, respe~vely, Custodian shall
~mmPfly pg~'~, ~,5~ller agd ~4u~e.r a~..d .awa:t the rece~lpt p~ms.uc~h Ora~r.,..W~.ngen lnstruc, pon~ c~ Or the
~' Fuslfod~a~h~ not rece'ved OrM or Whiten faa;true!lens fiZom Seller~, 4:'.~0 p.m.. xnffic~ent e~qh from Bm,er by'the close of the
2'RBNY :ri(mcr ~,'ire ?~- surd!Sen! I~ligible Portfolio Securities Ir." the el(ese tff Ggcs or the npproprmte Cleating Corporation.
iluyer and geller irzevocalqv agree end hlstrnct Custodian to effect lite 'l'~ansa,.'fit)n as follo'*..~: ti) if the cash halance in Iluyer~$
Acco!m! slrall be less thnn the Purchase Prii0e se! fiulh iff Seller's Instnletion~. the cash baTance in Buyer's Account !hall be
.rleemetl to be the Pmchmse Price. Ihe temaining terms of'th~ l'Tansacfion shall be determined in acco(dance with Paragraph SA,
· ~and $ffller shaU provide Cnslodiao wifl~ fi,!her Oral or ¥,q'iue:~ instructions *.'ith respect 16.a teealculatetl Repurchase Price for
~tLch 'l'ral:'sacfitm; (ii) ir the cash in [tuvex's Are!rim! eq~ mi Io tile Pur&hase Price exceeds the MaTgin VMue el' EIiRible Portfolio
,m Seller's Account Lnst(~(ha!! shall c~eC.!Tt IO Seller s ^cc!mn! !'ash m..an amount cclnal to thc ~[largTn V~qh!~ of 0lC 1-. g/b e
~.,~(:r ft~ a,...~e~l re3 .att Ie¢ ffereltc ,cwce fhcanoqltc~edttcdlo'Seler.qA'cenonla*l~lhcPuw¢}asc *roes fl *c eflnet
I'y BtLve~[kaml held I.T Cusmctia:~ in rltlyer's Ac¢'ount. ra any event..Buyer nn~l Seller' shall refn;hin olq~§ated to eJach olher'
.i:ursuant ~o.:llle ot'i~inal terms of.'each Transaction.
....... ' .............. transljers',.be~¢en.Buye,r's Account
,,.~ ~L3 mi, t0n¢~uL...rr, l$i!g.t, lon.-~j,BtLver ·taxi Seller a~!ee Ihat !n e!tectmg Transactmns
~n~e er's~ficcounl are intended:tombs, call,shall be !lee!ned to bc s multaneou~ ..... ' ':' '
............. the .trausfer.~ff.the Purchased Portfolio to
I'g: ver!s,~cc6unt',.,Jt, is~,':g?~ed[ bY i that. s h ecl to Se ~ 's ng it of subs! tuUom:o, urs'uant ~ Pa 'agrap 1. 6B and
pt tx, at lo Paragra i .-SG, l ~e Pt re! aseS. Port(oho shall he for all
ho.~,'ever d. hat sub et:t to E'aragraph O he~eof~affd ,P,'irhg~a}Sl:.-'.ll of the Master
m thc I~etmrchpse Date th~ E!n'chaged"i~m'Ifolio',at J.Ire Rep~rchase'P!ice.
fid:lit Dale o~ (ii) the ~tate if arb', when;~..ust~o~lian :sl~MI r~c~ive~
from "l etcOv][mstructs (.us!ethan Io hold the Purchased Seeurll!es In,Bm'ers Acco:mi at!d I0
:.el'us :.q~ltlclllm or Flu'.'cr or .q~llc! to dehvel l?~lchnsed S'ecuiit!~..~o.lher.~Jh.'In ~ cxplcs~l:'
as ove ~ }'re. ap. ap s6A nnd6[~[orlmt~ s~chl~ne~ast.~st thanre,.e:'esa
l~s,, I'~'l~era~reeslhatv. a~h?mt.~ellerswntt'~cOrse~ Bm',.'shallno.
ag 'ecs ti at t c Purchascd:P. orffolio sh~ ~not b~..qubj¢¢t to any ~c¢::rltv
third.parK, claiming through~Custodlan ~nd: Custcxhan ..Ishall not pledge.
t!neun gr,'u t afl¥ t rd patty an nterest n any., ~urclased Pt rff
~ ''
: rece ye a Nottcoiof Defzu t f[om Buye,r:pttrma ~t to ~ParagraI h
received by Custod an After fege pt of su~.h i$Iot~e~of Default from Bro.'er
tetreived 'l? Custodian.
~th, confirmation statements ;telT~e~,,;~he Pt!re. based
Day or m otherwise may be .requested~.~ ,B..uver..Buyer and
.qellct statcmenls and shall promptly ad~se Custodian of a'ii~ er?or om!.~slOn or
.~h~ll undellake to con'ect any errors, failures: or oinissiofi~4h'~t~a~c ~rted to
I a ,e cf ec ed o 1 s ] *seq ent co iff 'real o 1 stateme~tq ,
er Defal I a: y t 'ansfers Of Securities ~or cash by ~us~ $'.~:~ffi g ~om[Buyer s
i I le acc it {q c~ gqated in :~chedul~:llL ~s maY~e
by del
6. ~Rrl'm$
- '.~i' V'~;~a~l~lRl~l.llr~r~.',~trl le q~enl g or each rluMneM Day during wh~r.h a Trarsactlon su~Jea to:~thla C~u~todlal
LJnde~'lii~l}ig,shMl~ti'~ln~,mto.u~,t,'i'nBm~;:Cusmd 5n shall delermlne the M~ alue of~ Pu~ased Porffo~o.
., ....~ lI ..... . . : ~,
{i) 'Mar~li~l)¢£ ~.,: lln 'lli~ Went !lie Pal rh a~e Ih Ice of ¢,flstand!ng Ttansaellons js gre, ater than :lj[le~ ~]zlzrega!e Margin
Vhlue of; ii:~ P' {el'l~s~'i{ I~{~'1:~'~ '~.;~lsto* an ~ la! '.,co no fy .ge er I~Y the time spe~fl~ on ~e~i~ v.. ~ ~ig ofa~y such
not!ce,' Sefler shall .~qq~lqa~i'lt ,-(.p[re~ !o lhb'et s/~croun! addl!lonM $ecurltl~ of the types eonta!ned in, the: Pur~ased Portfolio
-6-
{"Additional Securities"] such that, afXer transfer~ thereof to Buyer's Accoum. the aggregate Margin value of the Purcha
Portfolio (including Additional Securities) equals or exceeds the Purchase Price of outsxanding Transactions. If Seller fail:
transfer an appropriate araount of Additional Securities on the date of any such notice, Custodian shall notify Buyer and Se
and await further instructions from Buyer. All Additional Securities transferred to Buyer's AcCOunt shall be deemed to be 1:
of the Purchased Portfolio.
(ii) .l~. In the event the aggregate Margin Value of the Purchased Portfolio shall exceed the Purchase Pr
of outstanding Transactions (such excess amoum, the "Margin Excess"), Custodian shall so notify Seller and, upon Oral
Written Instructions from Seller, Custodian shall transfer Securities in the Purchased Portfolio from Buyer's Account to Selh
Account having a Market Value equal to the Margin Excess. Buyer hereby irrevocably authorizes Custodian to accept the O
or Written Instructions of Seller identifying specific Securities in the Purchased Portfolio to be released from Buyer's Acen~
pursuant hereto. Upon transfer from Buyer's Account, released Securities shall cease to be part of the Purchased Portfolio
all purposes hereunder~
B: Substitutions of Securities in thc Purchased Portfolio. Buyer hereby authorizes Custodian, upon Oral or Writt
lnstrucuons from Seller, to transfer Securities in the Purchased Portfolio to Seller against transfer to Buyer's Account
substitme Securities ("Substitute Securities") determined by Custodian to have an aggregate Margin Value equal to or great
than the aggregate Margin Value of the Securities in the Purchased Portfolio released hereunder. A/I Substitute Securifi
transferred to Buyer's Account shall be deemed to be part of the Purchased Portfolio.
7. AUTOMATIC ROLLOVER
Buyer and Seller agree that if Custodian has not received Written Instructions by the time specified on Schedule V un t~
Repurchase Date to t~e COntrary, Buyer and Seller shall enter into a new Transaction on such date (which shall be deemed to t
a new Purchase Date).
8. REPURCHASE DATE
On the Repurchase Date for any Transaction, subject m Paragraph 9 hereof and Paragraph 11 of the Master Repurchas
Agreement, Buyer hereby irrevocably instructs Custodian to tender m Seller the Purchased Portfolio with respect aa suc
Transaction and to transfer such Purchased Portfolio from Buyer's Account to Seller's Account. Seller hereby irrevocab
instructs Custodian at the time the Purchased Portfolio is transferred to Seller's Account to make payment m Buyer of th
RepurchaSe Price by debiting cash from Seller's Account and crediting cash to Buyer's Account. ff on the Repurchase Dar
Seller's Account does not contain sufficient cash available to repurchase all Securities in the Purchased Portfolio with respect
any Transactions, Custodian shall notify Seller and Buyer and Seller shall give Custodian Oral or Written Instructions idantifyin
which Securities in the Purchased Portfolio, ff any, are to be repurchased and the Repurchase Price.
9, DEFAULT
ha the event that Buyer or Seller delivers a Notice of Default to Custodian, Custodian shall notify the defaulting party of it.,
receipt of such Notice of Default and act in accordance with the instructions of the non-defaulting party, with respect to such non
defaulting party's dghls pursuant to Paragraph 11 of the Master Repurchase Agreement. Custodian may fully rely withou
further Inqui~ on the statements set forth in such Notice of Default. It is understood that notwithstanding anything in tht
Master Repurchase Agreement to the contrary, (a) ff Seller is in default thereunder, Buyer hereby irrevocably authorizes anc
directs Custodian to sell any Security in the Purchased Portfolio that is in an amount less than a custommy unit of trading In sucl
Security or less than the minimum amount in which Such Security is issued, together with similar Securities held by Custodia. n fos
other counterparties Of Seller similarly situated, and Co) if Buyer is in default, to the extent any Security In the Purchas<
Portfolio is in an amount less than a cnstoma~y unit of trading In such Security or less than the minimum amount in which such
Security ia issued, Buyer hereby irrevocably authorizas and directs Custodian to transfer such Security to Seller.
In addition, Buyer and Seller acknowledge and agree that the provisions of Paragraph t2 of the Master Repurchase
Agreement shall be fully effective with respect to all Transactions entered into between them, irrespective of whether such
Tramactions are entered Into in connection with this Custodial Undertaking, directly ?etween Buyer and Seller or otherwise.
10. CONCERNING CUSTODIAN
A. Limitation of Liability: Indemnification. Custodian shall not be liable for any cosl& expenses, damageS, liabilities or
claims, including reasonable fees of counsel (collectively, "Losses~), resulting from it~ acdon or inaction in cormecfion with tiffs
, including I.oises which ate mom ~ecl by reasomof any acUon or mac,on
rat on nr Tn st Rece pi Isa e~ ~'t ~e r s c~ssoa nr ~}~ n ~i. ~xceot for ~OSe ~ ~: ....... ;' ~ - ,
~ }~cl faith or ~ f sco ~duct o ~vef t ~ a ' ~ B~er, Se~er ~or ~y ~rd p~ for
~ adfice ~d pp~on of ~e~ ~d sh~
~)~ o:,ioion. [%veramlSel'l~ag[ee. oin~lvancJseve~nlh.
., dncludmg c,;ums by ~.~'cr or S...lle0 ~luch ,.re s.stamed }r~' Custom, n a~ a (cauL.of L us~odmn'~ aelion or inaelion in eo~meefion
~gh, .c. this. C;ustodial. ,'I~n~e~tnking except, t m~e'[., nsses., arising oot. of C st~lian's~_ . neg gence bad fai~ o ~s~ducL
. ~[ler?l (ctl%..;~qthou:.any obhgnll~m lo fir~l plo(ced ngnln~t
_ ._~t:l? o~ r~cnt,.?~.~hs~ B?yer pr .S~lle.r.may .liaye against anv.soch .lhird 'party. 'l~his ifidemnity shall be a confin~g~gafi0n of
I} ~ver and Se ~er.not~ll stand fig t ete ~ at
· , ~,~L,~.~.uaLaq~j:J~'_¢U~t0Z~a ~:t,~s,e~p?ssly. agreed ~and,acknowledged t~ Bpv, er and'~%ll~r.fl~at C~4~made no
m~{~f~rr' latOl~re~a[dr~ [i ve'~ol'~ ers'ah tv ol~erform Ihelr
~ot}~za,t.n~cmgl~ttfor~l~nc~[{f~or~K ah~.nlv a
~p)~ln~. ~[~nff the generallW of Ihe foregoMg. Custndi~ shall be unHer,no o~lga~on' to mqture
,~ ,.~ 0} lLfie~ IdRy.of tle ffsue of aoy Seco' t
:.,.;' ~t~ '~ . . .~'~ :. '..... '.. .. . ' ' - .
t;~'),~J:~LJ,~at q,amy~f an~ Au,ho,,zed Person to act on Ilehalf of Buyer or Seller
~}'~$~u~ aa~ofi~of ~, ~ler o? ~y entities for which Brier acts to pnr~el ~e~'~ ;h'01~' pa~eular
D, ~l~Q.zd.ties i~l~cfauIt. ~ust~an s~haff not be under, any duty orobhgatton to take.action:to,~ffeCt~cOffecdon of any
mnoun, t ('l"~the S. ecm'ities uponf~hic~, ~sdch~ amo,Unt is payable are in default, or ir payment is re~usecJ~after .~li~,e demand
Freseniafi6n..un?s ,'.nd unlil (i~ it sh;~l be :directed to :ta~e such action by ~'dtlen Instnk:tions and (ii) it.shalf ~e.~surcd to ils
. :sa~tisfaco~r~bursement qf':~ts e0~ts.and expenses in connectlon x~ith any such ac(too. ~ ~i.
~ ~.:~:~ .~ E. ~.'~41~i.~fi~l~n__~..~ C{n;tothan shall be ent~tted to re(eryc and Selter agrees to pay lo ¢..ustod~an sueh.eomp..e.r!sat~on as
??,0e~g~'eed.upoo from time to time between Costodian and Seller and Custodian's out-of-pc, eke( expe .r~es..;.
· - ~ ·~ F;;-'~i;a'i~c~,oiL:_Q~.al/wrilt_~a_I~stCu~tons. Custodian shall be anffltied lo rely upon any .,.,XX/,rittenhlnalrbetion or Oral
Inslruello~reet?y{M by Custodian and reasonably belie~,d by Cllstodian,~to be delivered by an Au~orized'Pera~,'n. Buyer and
Seller agf~.e Io fp~ward lo Custodian,.Written Instruclkms confirming any and all Oral lnstruetinfi.~ in ,snob m~ner that
xvt itfen Ifi~tnzction~ nrc received by Cusl(xtian 13' the (:lose of business of the same day that sueJl Oral lnsm3etlt~ns are given tn
Custo~{; ~ and Seller agTee~ L-hat the, fact that such. confirming Written Instal(Irons are n01 reeetved o'r. ghat eonlraw
W'rilten. ~'~, ~:~'ps are r, eee;v~ ~ {~ustodtan. shall in no way affect the yah v r enfo cea ~ ty of~ 11 e tra ~saet pn~; m e~ao s ;'
~ ~.h.~e~cm~_~:~cc;~ ~ustodzan ~s auth~n:,~! to utilize any generally, recngmzed1~nc~ng zru'om~aeon se~ce
(ir/dlud~n;~r~kei'd and dealers ~t' Secuut;es) ~n order to perform iL~ valuation resrxm.s;~ilities h~r~u~'de~a arid S~I~r and Buyer
aglc¢ ~o I~ld COsiod an ha(mless dom and against an)' Loss~ incurred ~ a rest. It of errors or o~tis~i~ of a~ such pri,'~ng
iz;fo; n;Ktit~ se;vice, broker or dealer·
i1~ _F..')?C;.b~a. jeure.. Cu.;toe,.mn shall not be respons ble or liable for any failt~e or delay~fn ~the' et'l'onhance~ot~ zis ob tgatJons
under riffs'Custodial Uncle; mkin~' arising ott of or ca tsed d rectl¥ or indirectly?by circu asian(es be~;nnd Is re~onable control
includin~ v~,hhout :limitalion. act~; of God. earthquake% fires, floods, wars, civil or milita:'v dlsturb;ihces sal~lage, e qdemics.
nnL% Ios.~, ~r'mnffonclmns of utdlt~es, cornputez (hmdwa e or software) or commumcatio ,,r~ set, ce I,a[~o~' disput~ ac~s of czvil or
-8-
military authority, or governmental, judicial or regulatory actions; provided however, that Custodian shall use its best effor~
resume performance as soon as possible.
I. N : t ~ --,:'...Custodian shall have no duties or responsibilities except such duties and responsibilities as ~
specifically set forth in this Custodial Undertaking; and no covenant or obligation shall be implied in this Custodial Undertak:
against Custodian.
J. 'n ' ~ Di .:: ~. ~. In the event of any dispute or conflicting claims, by Buyer and/or Seller and any other pets
~th respect to cash or Securities or any other matter covered by this Custodial Undertaking, Custodian shall promptly not
Buyer and Seller and shall act solely on joint, identical Written Instructions of Buyer and Seller. ff such Written insumcfious ~
nat received by Custodian, Cnstodian shall decline to comply with any and all claims, demands or instructions with respect
such cash or Securities so long as such dispute or Conflict shall continue, and Custodian shall not be liable for failure m act
comply with such claims, demands or instructions. Custodian shall be entitled to refuse to act or comply until either (i) su
conflicting or adverse claims or demands shall have been dexermined in a court of competem jurisdiction or settled by agreeme
between the conflicting parties and Custodian shall have received evidence satisfactory to it of the same or (ii) Custodian sh
have received security or an indenmity satisfactory to it and sufficient to hold it harmless from and against any and all Loss
which it may inc~ar by reason of taking any action or inaction, except Custodian shall accept cash from Seller in substitution of a)
Purchased Securities provided such cash is equal to the Market Value of such Purchased Securities. The provisions contained
fids Paragraph 9J shall not in any way be deemed to limit or restrict Buyer's and Seller's other rights and remedies described
this Custodial Undertaking.
K. No Duty R~gardin~ Derivatives. ff Buyer and Seller have selected Eligible Securities which derive all or a portion (
their value from changes in the value of underlying securities, mortgages or other obligations, or one or more currencie
commodities, indices or other factors (hereinafter referred to as "Derivative Securities"), the parties understand that Custodia
shall have no obligation to monitor whether any sach Eligible Securities are also Derivative Securities. Accordingly, the partie
agree that anything in the Custodial Undertaking to the contrary notwithstanding, it shall be Buyer's and Seller's responsibility (
ensure that Eligible Securities do not include Derivative Securities unless they have otherwise agreed. Custodian shall have n
liability whatsoever for any loss, damage or expense arising out of the ineligibility of Derivative Seemifieswhich are the subject c
Transactions pursuant to the Custodial Undertaldng.
11. TERIvlENATION
Any of the parties hereto may terminate this Custodial Undertaking by giving m the other parties a notice in wfiim,
specifying ~he dateof such termination, which shall be not less than thirty (30) days after the date of giving of such notice.
termination hereof, Seller shall pay to Custodian such compensation as may be due to Custodian as of the date of sucl
termination, and shall likewise reimburse Custodian for any disbursements and expense~ made or incurred by Custodian ant
payable or reimbursable hereunder, ff Buyer and Seller do nm provide Written Instructions designating a successor custodiar
prior to the terminafon date. Custodian shall, at Buyer's expense, continue to hold Purchased Securities and cash in Buyer'
Account until the Repurchase Date with respect to each outstanding Transaction, or until it has received a Notice of Default
connection therewith, and Written Instructions with respect to delivery of such Purchased Securities. ff Custodian has no,
received delivevff instructions with respect to Purchased Securities and/or cash in Buyer's Account, Custodian may, in its sol(
discretion, hold Book-Enuy Securities and Cleating Corporation Securities in escrow for the benefit of and at the expense
Buyer and deliver Physical Securities made. ash to Buyer at the address provided below..
12. MISCELLA1V~OUS
A. ~. Buyer and Seller each agrees to furnish to Custodian a new Schedule II in .the event that any
Authorized Person cc~.ses to be an Authorized Person or hi the event that other or additional Authorized Persons are appointed
and authorized. Until such new Schedule II is received, Custodian shall be fully protected in acting under the provisions of this
Custodial Undertaking upon Oral lastxuefions or Written Instructions from a person reasonably believed to be an Authorized
Person as set forth in the last delivered Schedule II.
B. Access to Books and Records. Upon reasonable request, Buyer and Seller,shall have access to Custodian's b~ks and
records maintained in connection with finis Custodial Undertaking during Custodian's normal business hours. Upon reasonable
request, copies of any such books and records shall be provided to Buyer or Seller at its expense.
· C. I,,v ild-',~o-.n- -.vi i . Incaseany prOvi~ion in or obllgafion under this Custodial Underlakingshallbe invalid,
illegal or unenfordeable in any jurisdiction, the validity, legality and enforceability of the remalding provisions or obligations shall
not m any ~way be affected or unpatred, ~ ~?ebg~, ~ ,f~, pr~}~ inai015]iteable to any person or circumstances, il shall
nevertheless femnln applicable to all othei' ~}sons'and drculnstances.
i ' D~ Partly, t~qtire Aereement. AmendS,.' . ~, ·
con~htnte~ the. entire .a ,treement among the pm ties hereto ~.tb respe¢ oas ~ee! to ~ Clt~stOi~l IJRd~tal~lo o-~
may not he amen¢led o:- mochfied m any manner e~eep~ I,y a a,'titten'agreement executed by the pagties hereto.
(,) The Custocl~al L:nd~:ttakmg_.and_~.e Ma~.tgr Repttrcb. a~e.~A~jcqBLe,~..t B e~t'z~rK[~Se~eracknowled ·
and agree that,the N{aster-Repurchase :Ay, tee'meat m cunBmelmn ~th th;s Ca~todml l;nderta~.~g 5celSresants the entire
.ith ',' n,.'e,' Se.er that i.
not par;)' lo the Master Repurehn.te Agu'em,'.L
!¢~ ~eew,',¢. sn,.c,c.es~[?;;~rff,~ .aa~gus; 'l:ro;~decl.,ho':;e:'er. that this Custodird l..,nderlnkm~, shall not he ass~gn,'lble N,-nnv party w .*u!
F. his C'ustndial Undertaking shall be gottst~ed hi ag~eol'lti~ne~ Wllll ~i~of ~t}~d~te of
N ,,~ of I,a~; I r.ne~ples Iher~of. The parties 'here~oy consent to ~ej~tion of u'st~te or
f.ede~ al {~i~;~ k CrJt).. New. Yovk in eormeetion with any dispute ~sing hereun~ er. E,a~b_..h pmSt~heretO hereby
,a'mves !, g invol','in~, directly or indirectly, any matter in any Way ar~g. ou~ ~, relateti ~o. or
,arty may now or heredter be en~/fled to chim, for itself
or iLS .f J attachment (before or after jndgment) or other legal process, each pa~'y irrevocably
ar.~ee~ . ~ ,, . . wa?es, Sll.'"h ,mm,mtym connection w~th this Custodial Undertaking
ll.,~...e, h!lg~.~l~[~l:.~'flCg:,~.. ,,I he henchng~ and capUous m this Custodial Undertaklng' are for reference only and shall not
nffec! ti'~e coustrncf~on or nlerl'nelat~on of any of ~ ~ p~ov~s~ons.
I..C~m.t~.lL~.~J$. ,~'~.N,.~.ustodinl~ Undertaking may be executed in any nttmber of cutmterparts, eachL of which shall be
deemed to he an' ofi~in~ I, but such co:mterparts shaU, together, constitute only one imlnunent.
J. J.m:onsist~,vRth ;Master Reourchase A_ereeme~t. In the event of any inconsistency between the terms and conditions
of the ~ns~ ~e~t, cl,,~se Agreement and tiffs Custodial Undertaking w~th respect to the rights, dulies or obligations of
Custo~LllJ[~ 'Transactions subject to this Custodial Undertaking, the terms and conclifious
O[
Custodial
Undertaking
shall
govern.
ICi~. ~y nqtice authorized or required by this Custodial Undertaking zhall be sufficiently given ff addressed to the
receivlr~iparty and;~and de!ive~ed or ~ent by mail, telex or facsimile to the individuals at the addresses specified in Schedule IV
or to so~ o~f F~on or persons as the receiving party may from lime to llme designate in writing. Such notice shall be
effective upon receipL '
LO L
~o~Jd~fl~llit~. The p~ hereto ~ree not to ~s~me to ~ o~er p~ ~d ~ keep ~denfl~ ~e te~ ~d
con~U~ of ~s ~g[e~t (~u~g fee ~gemen~) ~d ~ ~L su~lement or ~e hereto. ~ ~e e~nt
that ~ pa~ he~it6 brea~ ~y pr~on of ~s secfio~ ~ o~er p~ sh~ be ~fifled to tem~r~ ~d pe~ent
~j~euye r~ef ~g~t ~e brea~ng p~ ~out ~e nec~ ~ ~o~g acm~ d~..No~g ~e foregoing,
Cmt~m m~ ~dme B~er or Seller's n~e. ad~, se~fi~ ~sifion ~d o~er ~fo~a~on to su~ pe~om ~d to su~
exist ~ rrequI' ~ed ~ ~aw the ~I~ ~ ~y st~k ~e or r~ato~ or se f-re~lato~ org~fiOn or ~ order or decree of
my co~ or a~s~ve ~ ~at~ ~g on Cmt~ or
documen~ of.~e i~uer ~ any Se~d~ or ~e te~ of any Se~
I~ No Third Party Beneficiaries. Notwithstanding the facts that (i) Buyer or Seller may act on behalf of parties not
signatory~3o tl~s ~trnct, 9nd (it) Custodian may from lime to time maintain Accutmts in the name of third parties, the parties
signato~hereto ~ee that. irt performing hereunder Custodian ts acting solely on behalf of the Buyer and Seller which are
stgnato~?e~s hereto~d each stgnntofy hereto qcknolwedges and agrees that no contractual or ser~ce relalionshlp ~halt be deemed
to be esiablislted tltr~by between Custodian and any such third pa~ty or any other person.
-10-
N. ' ' ' . Unles.~ the parties hereto execute aad d¢llver a Custodial Agen~cy Armex pursuant to wi
the identity of all Principals for whom any party may act in conaecflon fitiS Cust~al Uadertaking iS disclOSed, each party shai
responsible for the performance of its obUgations hereuader aa a principal. However, the execution and dellvet), of a Custo
Agency Annex shall not relieve any party of its obligations hereunde? except aa provided by applicable law.
IN W1TNESS WHEREOF, the parties hereto have cansed this Custodial Undertaking to be executed by their respec
corporate officer% thcrcUatoduly authorize, d, as of thc 3 day of t~,A'~ . , 19~c .
SWISS
Title:
CORPORATION
Associate Director
Swiss Bank Corporatior.
THE BANK OF NEW YORK
Tide: VP'
sba-~cd~
9196
SCHEDULE I
ELIGIBEE PORTFOLIO
.... ,- A.;_~-of .~¢)~0!lg~g:po.r~:p~os.0f Securities shall be an Eligible Porffoli,o f~r Transactions dea~c,Hbe~d~ the Custodial
,~._~Undertaldng.,.~.C-.gnnecfion With ~zster~epurchnse Agreement dated as of. at'~-~t~- , among ~?~
-Mar~n .Percv...ql:a_~e
102%
102°/o
1027/o
Frequency. of Pricing Rate~Ad_iustment
Daily Mark to Market
Daily Mark to Market
Daily Mark to Marker
.:: = --: ~-.B, p~Jg~P~g~., ph ~ 9(:~.e Custodial Undertaking In Connection With Master Repurchase Agreement~ Custodian
..-~::::- ~is authorized and directed to accept Trust Recetpts from the following Trust Receipt Issuers:
By:,THE BANK.~_.~OF
Title:
L/
Title: ] Brian .V. Catty
A~soci~e Director
Swiss B~nk Corporation
SCHEDULE II
Tt)c fallowing iadividual$ have beca desigt~atcd as Authorized Persons of Buyer and Seller, respectively in connection v~
the Custodial Undertaldng la Coanecfion With Master Repttrchase Agreement dated as of ~z~. ~ ~ i°l~-
Signature
Sigaature
Account Information for Delivery o~ Bayer's Securities and Cash Upon Notice of Seller Default
!
SCHEDULE IV
ADDRESS FOR NOTICES
TO SELLER:
Swiss Bank Corporation
TO BUYER:
TO CUSTODIAN:
The Bank of New York
One Wall Street, 4th Floor
l~ew York, New York 10286
Government Securities Clearance Division
SCHEDULE V
-. :_ ~;. ' . SCHED~E OF DAII. Y OPERATIONAL EVENTS & TIMES
,~.'-n'~ ?mr-'c::-: ~A-f?. ~Tt~.9~g ..a~'~§:::,l~e.:daLt~,0Pera6°nal events and time deadlin~ applicable for Transactions subject to the
-4m~ ;z~Wt .o~_~al_..Undertaking In Connection.With Ma~t~-~epumhase Agreement dated as of ~ ]~t~et:l- , among
Deadline fb~ Seller-to Establi~li'.PrichaE tl[al~;s:' '~ '~ ~ ' l 0:00 AM
,D~adline f0r Btlvelt~tO ,ACcent Pncine l~ate:¥ ~ .
.I )_.e.ad I il ~ ~F. ~ [~Ze_! VL~_rv_~ f VCLU L~ n _In ~ t cu~;ll o.~_lo__C u s t o~ttr
",i~ 39 PM (3:00~PM for la~* Portfolio)
O;~dt~tmfor Buyer?to ~Dehver Pui'ehase Price,to Custodian.
I'.30 PM {3:00 PM for laie Portfolio)
Custodian's Inability to Comolete, a Transacfim¥
2:30 PM
If Cfsto l'mt I as not received Written [retractions from Seller by , suffiden, t essh fro, m Buyer by the
close.of :he F.P,'BNY money v,qre or suffi, dent Eligible Portfolio by the dose of GSCS or the appropriate Clearing Corporation,
( :usto:lim~ shall pez form in accm'dance with Paragraph 5C.
3:00 PM
Deadline forCustoclian to Notify_ Seller of Mar_tqn Deride
Deadline to Noti _fy Custodian of No AUtomatic Roil'over:
t:30 PM (3:00 PM for late Portfolio)
.... · ::Deadline forBuver to Notifv Custodian of Intention to Terminate Prior to the Repurchase Date:
1:00 PM
Dated:
'~AII Times ET
ACCEPTED:
//
Brian V. Cathy
Associate Director
Swiss 'Bank Corporatior.
SCHEDULE VI
TERMINATION PRIOR TO REPURCHASE DATE
Buyer may terminate any Transaction pdor to the Repurchase Date by giving Custodian Oral or Written
[nstrucfion~ to that effect no later than 12:30 p.m. on the date Buyer wishes to terminate such Transaction (the
"Revised Repurchase Date~). The Repurchase Price with respect to such Transaction shall be the Purchase
Price plus the Price Differential for the period from the Purchase Date to, but not including, the Revised
Repurchase Date. The Purchase Price shall be payable to Buyer on the Revised Repurchase Date, but the
Price Differential shall be payable to Buyer on the regularly scheduled Repurchase Date. Buyer and Seller
hereby authorize and instruct Custodian on any Revised Repurchase Date to transfer to Seller the Purchased
Portfolio, Additional Securities and/or cash and Income thereon, if any, held in'the Buyer's Accotmt tmderiying
the Trat~action agaimt the transfer by Seller of cash equal to the Purchase Price.
The Bank of New york/Swiss Bank Corporation
Gold unt Fm
w~ss% New Acco m
Date ./ / C0t~trol/~
(-:it)' State
Primary Contact. · ,..
Daily Contact
Zip
· Pho'ne,'#... ' ':
Phone
Sub Ac~.~o ~u~.~;: ~,
Bank/~/C ~1
Bank Name.
Bank MC Name
PC ConfigUration. Training. and Salesman Data
PC M6del
Dos V~rsi,ou- ~ -~
'CPU RAM
Windows Version ~ideo
Speed Printer '~
CONFIG.SYS FILES=
Person Trained
Date Trained
Salesman.., Name
Location ,
OrganiZatiOn
Phone #
Follow up Date
Phone #
CUSTODIAL AGHNCY ANNEX
at~d h~rc~ leah, a "Buy~'),~i~J 8n~ ~4p . ("Scllc¢')and thc Bank of New York ("Cust~ian"). Cap/~liz~ tc~
used but not dcfin~ s~ll have ~c ~anin~ ascribed to tham in thc Custodial Undc~king.
1. Rcprcsentalion~ and WarranticaofAgent
In addition to thc rcprcscntatinna scl forth in Section 3A of thc Custodial Undcrtak/ng, Agent berchy rcpreaents and warrants,
wlfich fcprcscntations and wan'antics shall be deemed to be continuing during thc term of any Transaction, that:
(a) Each Buyer has executed an Agency Agrecn~nt authorizing Agent to cxccuto and dchvcr the Custodial Undertaking on its
behalf, and to cuter into thc Transactions contemplated by thc Master Repurchase Agrecnwnt and otherwise perform its obliganons
pursuant to thc Master Rcputohasc Agreement and thc C~todial Undertaking, and has acknowledged that it has taken all ncccssaq'
action to authorize such execution and dclivco' by Agent and such performance by it; and
/b) Ne Transaction effected hereunder shall bc for the account of any third party not listsd on Appcndix A h~eto.
2. Multiple Buycrs
(a) Choice of Account(s). In thc event that Agent proposes to act for more than one buyer hercunder, Agent and Sc/let shall cl¢ct
whether ti) to treat Ttansactlons under thc Custodial Uodcrtakings wansactions cntared into on behalf of separate Buyers. or (ii) to
aggregate such Tfansac4/ons as iflbey wcw transaet/on~ by a single Buyer. Failure to make such an eicction shall be deemed an
election to treat T~ansactlons under Iha Custodial Undertaking as trm~sactions by a single Buyer
Transaction-by-Transaction basis; and (iv) the parties' rcspcctlvs remedies under thc Cuatodial UndO:flaking shall ha determined as if
Agcm had entered/nto a a~parat~ Custodial Undertaking with thc other parO' on behalf of each of its Buyers.
3. Rescinded Authority.
Agent abel{ provid~ Seller and Custodian promptly with a rcviscd Appendix A whenever a Buyer rescinds Agent's authority to
perform it~ obligations pursuant to the Custodial Undemking.
'4. Inconsistency w/th A;~cnc), ~cx to Master I~purchasc Agcccrncnt.
in the ¢¥cot of any inconsistency between the te. rm~ and conditions ~fany agency annex to the Master Repurchase Agreement and
IN WI'FIqESS WHEREOF, thc partic~ have ~an$cd this Annex to b~ cxexuted by their r~pcclivc officers, thereunto duly
$uthadz~d, as of thc {lath first above wd/ten.
TIlE SUFFOLK COUNTY NATIONAL
BANK, AS AGENT
By: