INSTITUTIONAL CUSTODY AGREEMENT dated as of June 19, 2001 by and between Stralem
& Company, Incorporated, a corporation organized pursuant to the laws of the
State of Delaware (the "Customer"), and BNY Clearing Services LLC, a Delaware
limited liability company ("BNYCS").
WHEREAS, Customer desires to establish one or more custody accounts with
BNYCS;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises and covenants contained herein, the parties hereto agree as follows:
1. Appointment of BNYCS as Custodian. BNYCS is hereby authorized and directed
to, and shall, open and maintain one or more custody accounts (the "Account") in
such name or names as Customer and BNYCS may, from time to time, agree; and will
accept for safekeeping and for credit to the Account, in accordance with the
terms hereof, (i) all cash and currency (collectively, "Cash"), (ii) all
securities, instruments and other intangible assets as may be agreed upon by
BNYCS and Customer that from time to time shall be delivered to or received by
it for deposit in or otherwise held in the Account (collectively, "Securities"),
and (iii) all interest, dividends and other income distributed or paid with
respect to the foregoing (collectively, "Distributions"). (Cash, Securities and
Distributions are collectively referred to herein as "Property.") BNYCS assumes
no obligation to review investments in the Account or to offer or recommend the
purchase, retention or sale of any Property.
2. Powers of BNYCS.
a. General Powers. Subject to and in accordance with Customer's
instructions, BNYCS, as Customer's agent and for the account and risk
of Customer, is hereby authorized and empowered to and shall:
i. receive and deliver Property in accordance with its practices
and procedures in effect from time to time;
ii. receive all payments of principal and Distributions payable with
respect to Property;
iii. exchange Securities in temporary or bearer form for Securities
in definitive or registered form; effect an exchange of shares
where the par value of stock is changed; and surrender
Securities at maturity or earlier when advised of a call for
mandatory redemption in accordance with customary or established
market rules and practices (provided, however, that BNYCS shall
not be liable for failure to so exchange or surrender any
security or take other action (A) if notice of such exchange or
call for redemption or other action was not actually received by
BNYCS from the issuer or from one of the nationally recognized
bond or corporate action services to which BNYCS subscribes or
from the Customer; or (B) if, at the time of deposit, any
Security so deposited is subject to call, exchange, redemption
or similar action, unless specifically instructed to do so by
Customer);
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iv. hold Property, as it deems appropriate, (A) in its vaults, (B)
in The Depository Trust Company, The Participants Trust Company,
their successors or assigns, and in any other depositories,
clearing agencies or other entities that provide handling,
clearing or safekeeping services and in which BNYCS
participates, in which case such Property will be held in
accordance with and subject to the rules, regulations and
conditions imposed by such entity, (C) with the issuer in
non-certificated form, (D) on Federal Book Entry at the Federal
Reserve Bank of New York, or (E) with the prior approval of
Customer at any other location;
v. register and/or hold Property in the name of any nominee (as
holder of record) of BNYCS or any authorized agent, subsidiary
or other entity, including (without limiting the generality of
the foregoing) the nominee of any central depository, clearing
corporation or other entity with which securities or other
property may be deposited;
vi. when fractional shares of any security of an issuing corporation
are received as a distribution but are not available to be
received in kind, either [X ] sell additional fractional shares
sufficient to create a full share and credit the Account or [ ]
purchase the fractional shares and charge the Account (if no box
is checked, BNYCS will sell any fractional share);
vii. upon receipt of notification of the partial redemption, partial
payment or other action affecting less than all Securities of a
particular class, BNYCS, or any depository or clearing agency in
which Securities are held, may select the Securities to be
redeemed or to participate in any non-discriminatory manner that
it customarily uses to make such selection;
viii. hold any investment in bearer form;
ix. in connection with the receipt of Property, accept documents in
lieu of such Property as long as such documents contain the
agreement of the issuer thereof to hold such Property subject to
BNYCS's sole order;
x. make, execute, acknowledge and deliver as agent, any and all
documents or instruments (including but not limited to all
declarations, affidavits and certificates of ownership) that may
be necessary or appropriate to carry out the powers granted
herein;
xi. employ and consult with, and obtain advice from, suitable
agents, including auditors and legal counsel (who may be counsel
to Customer or to BNYCS) or other advisers with respect to
questions and issues relating to the Account, and BNYCS shall
incur no liability in acting in good faith in accordance with
the reasonable advice and opinion of such agents or advisers;
xii. invest cash balances in investments authorized or approved by
Customer (including mutual funds for which any of BNYCS's
affiliates are a distributor, an investment adviser or perform
or provide other services and receive separate compensation);
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xiii. make any payments incidental to or in connection with this
paragraph 2(a); and
xiv. exercise all other rights and powers and to take any action it
deems necessary in carrying out the purposes of this Agreement.
b. Discretionary Corporate Action.
i. Whenever Securities (including, but not limited to, warrants,
options, conversions, redemptions, tenders, options to tender or
non-mandatory puts or calls) confer optional rights on Customer
or provide for discretionary action or alternative courses of
action by Customer, Customer shall be responsible for making any
decisions relating thereto and for instructing BNYCS to act. In
order for BNYCS to act, it must receive Customer's instructions
at BNYCS's offices, addressed as BNYCS may from time to time
request, by no later than noon (New York City time) at least two
(2) business days prior to the last scheduled date to act with
respect to such Securities (or such earlier date or time as
BNYCS may notify Customer). Absent BNYCS's timely receipt of
such instructions prior to its specified deadline, BNYCS shall
not be liable for failure to take any action relating to or to
exercise any rights conferred by such Securities.
ii. BNYCS shall notify Customer of such rights or discretionary
actions or of the date or dates by when such rights must be
exercised provided that BNYCS has received, from the issuer or
from one of the nationally recognized bond or corporate action
services to which BNYCS subscribes, timely notice of such rights
or discretionary corporate action or of the date or dates such
rights must be exercised or such action must be taken. Absent
actual receipt of such notice, BNYCS shall have no liability for
failing to so notify Customer.
c. Voting. With respect to all Securities, however registered, the voting
rights are to be exercised by Customer or its designee. BNYCS's only
duty shall be to mail to Customer or its designee any documents
(including proxy statements, annual reports and signed Proxies)
relating to the exercise of such voting right.
d. Taxes. Customer is solely responsible and liable for the payment of and
the reclamation, where applicable, of all taxes assessments, duties,
and other governmental charges (including any interest or penalties
with respect thereto) with respect to the Property or the Account.
BNYCS, however, will cooperate with Customer in connection with
Customer's payment or reclamation of taxes. In this respect, in the
event BNYCS is required under applicable law to pay any tax, duty or
other governmental charge or any interest or penalty with respect
thereto, BNYCS is hereby authorized to debit the Account in the amount
thereof and to pay such amount to the appropriate taxing authority.
e. Pricing Services. To the extent that BNYCS provides values of, and
pricing information with respect to, Securities, BNYCS is authorized to
utilize generally recognized pricing services (including brokers,
dealers and market makers). BNYCS shall not be liable or responsible
for or be under any duty to inquire into, nor be deemed to make any
assurances or warranties with respect to, the accuracy or completeness
of such values or
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information, even if BNYCS, in performing services for itself and
others, including services similar to those performed for Customer,
receives different valuations of the same or similar securities of the
same issuer. In the event such services are unable to provide a value
of or pricing information with respect to Securities and BNYCS,
nevertheless, provides values and pricing information, BNYCS shall so
advise Customer, but shall have no other obligation or liability with
respect to such valuation or pricing information.
3. General Authorizations and Instructions.
a. Placing and Negotiating Orders. Subject to and in accordance with
Customer's instructions or the instructions of Customer's agent
(including a broker-dealer), BNYCS, as Customer's agent and for the
account of Customer, will place or negotiate orders to buy or sell
Property. Such orders may be placed or negotiated through subsidiaries
or affiliates of BNYCS. BNYCS or any of its subsidiaries or affiliates,
acting as principal, may sell such Property to, or buy such Property
from, Customer.
b. Non-Exclusivity. BNYCS may act as agent for, provide execution,
clearing, settlement, custody and other services to, and generally
engage in any kind of business with, others (including without limiting
the generality of the foregoing issuers of securities, of money market
instruments or of other Property purchased for and on behalf of
Customer) to the same extent as if BNYCS was not a custodian hereunder.
Nothing in this Agreement shall in any way be deemed to restrict the
right of BNYCS to perform such services for any other person or entity,
and the performance of such services for others will not be deemed to
violate or give rise to any duty or obligation to Customer not
specifically undertaken by BNYCS hereunder.
c. BNYCS [ ] may [X ] may not release the identity of Customer to an
issuer which requests such information pursuant to the Shareholder
Communications Act of 1985 for the specific purpose of direct
communications between such issuer and Customer. IF NO BOX IS CHECKED,
BNYCS SHALL RELEASE SUCH INFORMATION UNTIL IT RECEIVES A CONTRARY
INSTRUCTION FROM CUSTOMER.
d. BNYCS is authorized to disclose information concerning the Account and
Property to its affiliates and to providers of services as may be
necessary or appropriate in connection with the administration of the
Property or performance of this Agreement.
4. Compensation, Fees, Expenses and Taxes.
a. In consideration of the services to be rendered pursuant to this
Agreement, Customer shall compensate BNYCS in accordance with and
pursuant to the Fee Schedule annexed hereto as Schedule A, which Fee
Schedule may be amended by BNYCS from time to time upon thirty (30)
days prior written notice to Customer.
b. In addition, Customer shall be responsible for and shall reimburse
BNYCS for all costs, expenses, and fees incurred by BNYCS in connection
with this Agreement, including (without limiting the generality of the
foregoing) all brokerage fees and costs and transfer taxes incurred in
connection with the purchase, sale or disposition of Property, and all
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income taxes or other taxes of any kind whatsoever which may be levied
or assessed under existing or future laws upon or in respect to the
Property, and all other similar expenses related to the administration
of the Account incurred by BNYCS in the performance of its duties
hereunder (including reasonable attorneys' fees and expenses).
c. Fees and reimbursement for costs and expenses shall be paid monthly
after the last business day of each calendar month. Customer authorizes
BNYCS to charge the Account for such fees, costs and expenses ten (10)
business days after the date on which BNYCS issues an invoice to
Customer.
5. Limitation of Liability; Indemnification.
a. BNYCS shall not be liable for any Losses (as defined below) or action
taken or omitted or for any loss or injury resulting from its (or its
nominees) actions or its (or its nominees') performance or lack of
performance of their respective duties hereunder in the absence of
gross negligence or willful misconduct on their respective part.
Without limiting the generality of the foregoing, in no event shall
BNYCS be liable (i) for acting in accordance with instructions from
Customer or any agent of - Customer (including a broker-dealer), (ii)
for special, consequential or punitive damages, (iii) for the
acts or omissions of its correspondents, designees, agents, subagents
or sub-custodians or (iv) any -- Losses due to forces beyond the
control of BNYCS, including without limitation strikes, work stoppages,
acts of war or terrorism, insurrection, revolution, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software and hardware) services.
b. Customer shall be liable for and shall indemnify BNYCS (and its
nominees) and hold them harmless from and against any and all claims,
causes of action, proceedings, losses, liabilities, damages or expenses
(including attorneys' fees and expenses) (collectively referred to
herein as "Losses") howsoever arising from or relating to this
Agreement or the performance of their duties hereunder, the enforcement
of this Agreement and disputes between the parties hereto, provided,
however, that nothing contained herein shall require that BNYCS (or its
nominees) be indemnified for their gross negligence or willful
misconduct. Customer shall be primarily liable to BNYCS for
satisfaction of any and all obligations and liabilities arising or
incurred hereunder without regard to the name in which the Account (or
any subaccount established thereunder) may be maintained or any rights
or recourse Customer may have against any third party. Nothing
contained herein shall limit or in any way impair the right of BNYCS to
indemnification under any other provision of this Agreement.
c. No legal action, including one arising out of an exception or objection
under paragraph 6 hereof, shall be instituted against BNYCS after one
year from the date of the first Confirmation or Statement of Account
(as defined in paragraph 6 hereof) that reflects the information, error
or omission which provides the basis for such claim.
d. Customer understands that when BNYCS is instructed to deliver Property
against payment, it may deliver such Property prior to actually
receiving final payment and that, as a matter of bookkeeping
convenience, BNYCS may credit the Account with
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anticipated proceeds of sale prior to actual receipt of final payment.
The risk of non-receipt of payment shall be Customer's and BNYCS shall
have no liability therefor.
e. All credits to the Account of Customer of anticipated proceeds of sales
and redemptions of Property and of anticipated income from Property
shall be conditioned upon receipt by BNYCS of final payment and may be
reversed, at BNYCS's sole discretion, if BNYCS has not received final
payment within thirty (30) calendar days of the trade date. In the
event that BNYCS in its discretion advances funds to Customer to
facilitate the settlement of any transaction, or elects to permit
Customer to use funds credited to the Account in anticipation of final
payment, or if Customer otherwise becomes indebted to BNYCS (including
indebtedness as a result of overdrafts in the Account), Customer shall,
immediately upon demand, reimburse BNYCS for such amounts plus any
interest thereon, and to secure such obligations, as well as any other
obligations of Customer to BNYCS, Customer hereby grants a lien on and
a continuing security interest in and pledges to BNYCS the Property in
the Account and any funds so credited. Such lien and security interest
shall be superior to any and all other liens, security interests or
claims (including claims by others if Customer is acting on behalf of
others) and shall not be subject to any right of set-off or retention,
counterclaim, lien or security interest of equal status. Customer shall
take any and all additional action which may be required to assure the
superiority or priority of such lien and security interest in favor of
BNYCS.
f. BNYCS shall not have any liability for Losses incurred by Customer or
any other person as a result of the receipt or acceptance of
fraudulent, forged or invalid Securities (or Securities that are
otherwise not freely transferable or deliverable without encumbrance in
any relevant market).
g. BNYCS shall have no responsibility for the accuracy of any information
that has been provided by or obtained from third parties.
h. BNYCS's duties and responsibilities are solely those set forth herein
and it shall not be obligated to perform any services or take any
action not provided for herein unless specifically agreed to by it in
writing. Nothing contained in this Agreement shall cause BNYCS to be
deemed a trustee or fiduciary for or on behalf of Customer.
6. Reports; Statements of Account; Computer Services.
a. Written Reports. BNYCS shall provide Customer on a periodic basis with
Statements of Account showing all transactions in the Account
("Statement of Account"). Confirmations of purchase and sale
transactions ("Confirmations") shall be provided to Customer promptly
following each Security transaction in the Account.
b. Examination of Reports. Customer shall examine promptly each such
Confirmation and Statement of Account. Unless Customer files with BNYCS
a written exception or objection within ten (10) days after the date of
such Confirmation or the closing date of the period covered by the
first such Statement of Account that reflects an error or omission,
Customer shall be conclusively deemed to have waived any such exception
or objection or claim based thereon.
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7. Notices, Instructions and Other Communications. Unless otherwise specified
herein, all Statements of Account and Confirmations shall be in writing and all
notices, instructions or other communications may be given in writing (including
without limitation by telex, telecopy or other electronic transmission, which
may include Trade Reports issued by the Institutional Delivery System of
Depository Trust Company). All Statements of Account, Confirmations, notices,
instructions and other communications shall be delivered to the address (post
office, telephone, telex or other electronic address) set forth on Schedule B
annexed hereto or, in the case of Customer, as otherwise in BNYCS' records,
which address may be changed upon thirty (30) days' prior written notice to the
other party. Customer shall furnish, and shall cause each Investment Manager to
furnish, to BNYCS a certificate indicating those persons who are authorized to
give BNYCS instructions hereunder (each an "Authorized Person") and with
specimen signatures of such persons. BNYCS is authorized to comply with and rely
upon any such notices, instructions or other communications believed by it to
have been sent or given by an Authorized Person. Customer may amend such
certificate or add any person to or delete any person from such certificate by
delivering a replacement certificate to BNYCS. However, until BNYCS actually
receives such replacement certificate, BNYCS shall be authorized to rely upon,
and shall incur no liability for relying upon, the original certificate. BNYCS's
understanding of any oral notice, instruction or other communication shall be
deemed controlling (whether given or received by BNYCS), notwithstanding any
discrepancy between such understanding and any subsequent confirming document or
communication.
8. Appointment of Investment Manager. Customer may, from time to time, appoint
one or more investment managers (each an "Investment Manager") to manage the
Property in the Account, to vote securities in the Account to purchase, sell or
otherwise acquire or dispose of Property in the Account, and to engage in
foreign exchange transactions on behalf of Customer. Upon receipt of notice of
the appointment of any Investment Manager, which notice shall be annexed hereto
as Schedule C (as such Schedule may be amended from time to time by Customer),
and except as otherwise provided herein, BNYCS is to rely upon and comply with
(and shall have no liability for relying upon and complying with) instructions
and directions from the Investment Manager (including instructions and
directions with respect to the voting of securities in the Account, the
purchase, sale or other acquisition or disposition of Property in the Account
and the furnishing of information and records relating to the Account to the
Investment Manager) to the same extent as if such instructions and directions
were given by Customer and BNYCS shall have no duty or obligation to determine
the propriety or appropriateness of such instructions or directions. Any such
appointment shall remain in full force and effect unless and until BNYCS
actually receives written notice from Customer to the contrary and shall incur
no liability for relying upon the existing authorizations.
9. Termination. This Agreement shall be continuing and shall remain in full
force and effect until terminated by BNYCS or Customer at any time and for any
reason or for no reason upon delivery of sixty (60) days prior written notice to
the other party. The provisions of paragraphs 4, 5, 6(b), 13, 14 and 15 hereof
and the indemnity and limitation of liability provisions of paragraph 2(a)
hereof shall survive such termination. Upon termination of this Agreement, and
at Customer's request, BNYCS shall deliver all securities held for Customer to a
successor clearing agency, custodian or safekeeper to be named by Customer.
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10. Assignment. Neither BNYCS nor Customer shall assign this Agreement without
first obtaining the written consent of the other party hereto.
11. Headings. The section and paragraph headings contained herein are for
convenience and reference only and are not intended to define or limit the scope
of any provision of this Agreement.
12. Entire Agreement; Amendment. This Agreement shall constitute the entire
agreement of the parties with respect to the subject matter and supersedes all
prior oral or written agreements in regard thereto. Except as otherwise provided
in paragraphs 3(b), 4(a) and 7 hereof, this Agreement may be amended only by an
instrument in writing duly executed by both parties hereto.
13. Governing Law; Jurisdiction; Certain Waivers.
a. This Agreement shall be interpreted and construed in accordance with
the internal substantive laws (and not the choice of law rules) of the
State of New York. All actions and proceedings brought by BNYCS
relating to or arising from, directly or indirectly, this Agreement may
be litigated in courts located within the City of New York. Customer
hereby submits to the personal jurisdiction of such courts; hereby
waives personal service of process upon it and consents that any such
service of process may be made by certified or registered mail, return
receipt requested, directed to Customer at its address last specified
for notices hereunder, and service so made shall be deemed completed
five (5) days after the same shall have been so mailed; and hereby
waives the right to a trial by jury in any action or proceeding with
BNYCS. All actions and proceedings brought by Customer against BNYCS
relating to or arising from, directly or indirectly, this Agreement
shall be litigated only in courts located within the City of New York.
b. ARBITRATION. CUSTOMER AND BNYCS AGREE THAT ALL CONTROVERSIES ARISING
BETWEEN CUSTOMER, on the one hand, AND BNYCS AND ALL PERSONS,
PREDECESSORS, SUBSIDIARIES AND AFFILIATES AND ALL RESPECTIVE
SUCCESSORS, ASSIGNS AND EMPLOYEES, on the other hand, WHETHER ARISING
PRIOR TO, ON OR SUBSEQUENT TO THE DATE HEREOF, SHALL BE DETERMINED BY
ARBITRATION.
ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE HELD AT THE FACILITIES
AND BEFORE AN ARBITRATION PANEL APPOINTED BY THE NEW YORK STOCK
EXCHANGE, INC., THE AMERICAN STOCK EXCHANGE, INC., OR THE NATIONAL
ASSOCIATION OF SECURITIES DEALERS, INC. (AND ONLY BEFORE SUCH EXCHANGES
OR ASSOCIATION). CUSTOMER MAY ELECT ONE OF THE FOREGOING FORUMS FOR
ARBITRATION, BUT IF CUSTOMER FAILS TO MAKE SUCH ELECTION BY REGISTERED
MAIL OR TELEGRAM ADDRESSED TO "BNY CLEARING SERVICES LLC, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ATTENTION: CHIEF FINANCIAL
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OFFICER", BEFORE THE EXPIRATION OF TEN CALENDAR DAYS AFTER RECEIPT OF A
WRITTEN REQUEST FROM BNYCS TO MAKE SUCH ELECTION, THEN BNYCS MAY MAKE
SUCH ELECTION. THE AWARD OF THE ARBITRATORS, OR THE MAJORITY OF THEM,
SHALL BE FINAL, AND JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN
ANY COURT, AS PROVIDED IN SECTION 13(a) ABOVE.
o ARBITRATION IS FINAL AND BINDING ON THE PARTIES THERETO.
o THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT
(OTHER THAN REMEDIES IN AID OF OR IN CONNECTION WITH ARBITRATION),
INCLUDING THE RIGHT TO A JURY TRIAL.
o PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND
DIFFERENT FROM COURT PROCEEDINGS.
o THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS
OR LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK
MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
o THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO ARE OR WERE AFFILIATED WITH THE SECURITIES
INDUSTRY.
NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO
ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT
AGAINST ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION
OR WHO IS A MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE
CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS
ACTION UNTIL:
o THE CLASS CERTIFICATION IS DENIED;
o THE CLASS IS DECERTIFIED; OR
o THE CUSTOMER IS EXCLUDED FROM THE CLASS BY THE COURT.
SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL NOT
CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE
EXTENT STATED HEREIN.
c. To the extent that, in any jurisdiction, Customer has or hereafter may
acquire, or is or hereafter may be entitled to claim, for itself or its
assets, immunity (sovereign or otherwise) from suit, execution,
attachment (before or after judgment) or any other legal process,
Customer irrevocably agrees not to claim, and hereby waives, such
immunity.
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d. The invalidity, illegality or unenforceability of any provision of this
Agreement shall in no way affect the validity, legality or
enforceability of any other provision; and if any provision is held to
be unenforceable as a matter of law, the other provisions shall not be
affected thereby and shall remain in full force and effect.
14. Rights and Remedies. The rights and remedies conferred upon the parties
hereto shall be cumulative, and the exercise or waiver of any such right or
remedy shall not preclude or inhibit the exercise of any additional rights or
remedies. The waiver of any right or remedy hereunder shall not preclude or
inhibit the subsequent exercise of such right or remedy.
15. Representations and Warranties. Customer hereby represents and warrants:
a. It is a corporation duly organized and validly existing under the laws
of Delaware.
b. This Agreement has been duly authorized, executed and delivered on its
behalf and constitutes the legal, valid and binding obligation of
Customer. The execution, delivery and performance of this Agreement by
Customer do not and will not violate any applicable law or regulation
and do not require the consent of any governmental or other regulatory
body except for such consents and approvals as have been obtained and
are in full force and effect.
c. The Property (whether beneficially owned by Customer or by others on
whose behalf Customer is acting) is free and clear of all liens,
claims, security interests and encumbrances (except for those granted
herein). If Customer is acting on behalf of others, Customer is fully
authorized and empowered by such others to engage in the transactions
contemplated by this Agreement and to pledge and ▇▇▇▇▇ ▇ ▇▇▇▇ on and a
security interest in the Property as set forth herein.
IN WITNESS WHEREOF, this Agreement, including without limitation the
arbitration provision in Section 13(b), has been executed as of the day and year
first above written, by the duly authorized officers of Customer and BNYCS.
Stralem & Company, Incorporated
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
Tax Identification Number: ▇▇-▇▇▇▇▇▇▇
BNY CLEARING SERVICES LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Exec. V.P.
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