Representations of the Parties. The parties hereby make the following representations and warranties, which shall continue during the term of any Loan hereunder; 6.1 Each party hereto represents and warrants that (a) it has the power to execute and deliver this Agreement, to enter into the Loans contemplated hereby, and to perform its obligations hereunder; (b) it has taken all necessary action to authorize such execution, delivery, and performance; and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it (in the case of Lender, in its capacity as trustee, custodian or agent of the Clients). 6.2 Each party hereto represents and warrants that the execution, delivery and performance by it of this Agreement and each Loan hereunder will at all times comply with all applicable laws and regulations, including those of applicable securities regulatory and self-regulatory organizations. 6.3 Each party hereto represents and warrants that it has made its own determination as to the tax treatment of any dividends, remuneration, or other funds received hereunder. 6.4 Borrower represents and warrants that (a) it is a corporation, partnership, or other entity duly organized and validly existing under federal law or the laws of the state of its organization, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act"), a bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, or will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject to the terms and conditions hereof, and (d) it (or the party to whom it relends the Borrowed Securities) is borrowing or will borrow the Borrowed Securities (except for Borrowed Securities that qualify as "exempted securities" under Regulation T of the Board of Governors of the Federal Reserve System) for the purpose of making delivery of such securities in the case of short sales, failure to receive securities required to be delivered, or as otherwise permitted pursuant to Regulation T. 6.5 Borrower represents that the statements provided to Lender pursuant to Section 7 fairly represent its financial condition and the financial position of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio as of the date of such statements, and that there has been no material adverse change in its financial condition or the financial condition of any parent company or net capital ratio since that date that has not been disclosed in writing to Lender. Each request by Borrower for a Loan shall constitute a present representation: (a) that there has been no material adverse change in Borrower's financial condition or the financial condition of any parent company that has not been disclosed in writing to Lender, since the date of the most recent statement furnished to Lender pursuant to Section 7; and (b) that, as of the date of such request for a Loan, if the Borrower is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities and Exchange Commission ("SEC") under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said Act. 6.6 To the extent that Xxxxxx has provided Borrower with written statements identifying any of its Clients as employee benefit plans subject to title I of the Employees Retirement Income Security Act of 1974 ("ERISA"), each request by Borrower for a Loan shall constitute a present representation that, except as disclosed in writing by Borrower to Lender, neither Borrower nor any Affiliate of Borrower is a "fiduciary" (within the meaning of Section 3(21) of ERISA) with respect to the assets of the Clients so identified that may be Borrowed Securities hereunder. 6.7 Borrower represents and warrants that it has an unqualified obligation to reimburse [name of Guarantor] for the full amount of any and all payments made or required to be made by [name of Guarantor] in compliance with the Bank Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed by a Canadian Bank
Appears in 7 contracts
Samples: Securities Lending Authorization Agreement (IXIS Advisor Funds Trust II), Securities Lending Authorization Agreement (Loomis Sayles Funds Ii), Securities Lending Authorization Agreement (Loomis Sayles Funds I)
Representations of the Parties. The parties hereby make the following representations and warranties, which shall continue during the term of any Loan hereunder;hereunder and shall be deemed to have been relied upon by the other party hereto:
6.1 10.1 Each party hereto represents and warrants that (a) it has the power to execute and deliver this Agreement, to enter into the Loans contemplated hereby, hereby and to perform its obligations hereunder; (b) it has taken all necessary action to authorize such execution, delivery, delivery and performance; and (c) this Agreement constitutes a legal, valid, valid and binding obligation enforceable against it (in accordance with the case terms of Lender, in its capacity as trustee, custodian or agent of the Clients)this Agreement.
6.2 10.2 Each party hereto represents and warrants that the execution, delivery and performance by it of this Agreement and each Loan hereunder will at all times comply with all applicable laws and regulations, regulations including those of applicable securities regulatory and self-regulatory organizations.
6.3 10.3 Each party hereto represents and warrants that it has made its own determination determinations as to the tax treatment of any dividends, remuneration, remuneration or other funds received hereunderhereunder and neither shall rely on the other in respect thereof and each shall retain its own professional tax advisor for the purpose of apprising it on specific tax matters relating to each Loan.
6.4 10.4 Borrower represents and warrants that (a) it is a corporation, partnership, or other entity duly organized and validly existing under federal law or the laws of the state of its organization, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act"), a bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, has or will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject pursuant to the terms and conditions hereof, and (d) it (or the party to whom it relends the Borrowed Loaned Securities) is borrowing or will borrow the Borrowed Loaned Securities (except for Borrowed Securities that qualify as "exempted securities" under Regulation T of the Board of Governors of the Federal Reserve System) for the purpose of making delivery Delivery of such securities in the case of short sales, failure to receive securities required to be deliveredDelivered, or as otherwise permitted pursuant to Regulation T.
6.5 Borrower represents that for the statements provided to Lender pursuant to Section 7 fairly represent general purposes of its financial condition and the financial position of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio as of the date of such statements, and that there has been no material adverse change in its financial condition or the financial condition of any parent company or net capital ratio since that date that has not been disclosed in writing to Lender. Each request by Borrower for a Loan shall constitute a present representation: (a) that there has been no material adverse change in Borrower's financial condition or the financial condition of any parent company that has not been disclosed in writing to Lender, since the date of the most recent statement furnished to Lender pursuant to Section 7; and (b) that, as of the date of such request for a Loan, if the Borrower is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities and Exchange Commission ("SEC") under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said Actbusiness.
6.6 To the extent that Xxxxxx has provided Borrower with written statements identifying any of its Clients as employee benefit plans subject to title I of the Employees Retirement Income Security Act of 1974 ("ERISA"), each request by Borrower for a Loan shall constitute a present representation that, except as disclosed in writing by Borrower to Lender, neither Borrower nor any Affiliate of Borrower is a "fiduciary" (within the meaning of Section 3(21) of ERISA) with respect to the assets of the Clients so identified that may be Borrowed Securities hereunder.
6.7 Borrower 10.5 Lender represents and warrants that it has an unqualified obligation has, or will have at the time of Delivery of any Loaned Securities, the right to reimburse [name of Guarantor] Deliver the Loaned Securities pursuant to the terms and conditions hereof.
10.6 Each party hereto agrees that this Agreement and the Loans made hereunder shall be "secured contracts" for the full amount purpose of any insolvency, security or remedial legislation or regulation and all payments made or required to shall in no circumstance be made by [name considered a loan of Guarantor] in compliance with the Bank Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed by a Canadian Bankmonies.
Appears in 4 contracts
Samples: Securities Loan Agreement, Securities Loan Agreement, Securities Loan Agreement
Representations of the Parties. The parties Parties hereby make the following representations and warranties, which shall continue during be repeated continuously until the term later of the termination of this Agreement or the repayment in full of all amounts owed to State Street under any Securities Loan hereunder;or any Cash Loan under this Agreement or any Collateral Documents:
6.1 9.1 Each party Party hereto represents and warrants that (a) it has the power and authority to execute and deliver this Agreement, Agreement and to enter into the Securities Loans and Cash Loans contemplated hereby, hereby and to perform its obligations expressly set forth or contemplated hereunder; , (b) it has taken all necessary action to authorize such execution, delivery, delivery and performance; performance and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it (in the case of Lender, in its capacity as trustee, custodian or agent of the Clients)such party.
6.2 Each party hereto 9.2 State Street represents and warrants (a) that it is a trust company duly organized and validly existing under the laws of The Commonwealth of Massachusetts and (b) that it has, or will have at the time of delivery, the authority to deliver the Borrowed Securities subject to the terms and conditions hereof.
9.3 The Borrower represents and warrants that (a) it is an entity duly organized and validly existing under the laws of the state of its organization, (b) it is in compliance with all laws, regulations and supervisory directives applicable to the Borrower, (c) it has, or will have at the time of delivery or identification or designation of any Securities Loan Collateral or Cash Loan Collateral, the right to grant a security interest therein in accordance with the terms and conditions hereof, (d) it has the right to grant a security interest in the Custodial Collateral in accordance with the terms and conditions hereof and (e) it is borrowing the Borrowed Securities hereunder solely for the purposes of making delivery of such Borrowed Securities to cover short sales entered into by the Borrower.
9.4 Each Party hereto represents, warrants and covenants that the execution, delivery and performance by it of this Agreement and each Securities Loan and Cash Loan hereunder will at all times comply with all applicable laws and regulations, including those of applicable securities regulatory and self-regulatory organizationsApplicable Law.
6.3 9.5 The Borrower further represents and warrants that the Borrower has not relied on State Street or any of its Affiliates for investment, financial, legal or other advice with respect to the Securities Loans and Cash Loans and the Borrower is making its independent judgment or is relying upon External Managers or third party advisers with respect to the Securities Loans and, Cash Loans and neither State Street nor any of its Affiliates are acting as a fiduciary, advisor or agent for the Borrower with respect to any of the Securities Loans and Cash Loans .
9.6 Each party Party hereto represents and warrants that it has made its own determination as to the tax treatment of any transfers made with respect to this Agreement and any dividends, remunerationdistributions, remuneration or other funds payments received or paid hereunder.
6.4 Borrower represents and warrants that (a) it is a corporation, partnership, or other entity duly organized and validly existing under federal law or the laws of the state of its organization, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act"), a bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, or will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject to the terms and conditions hereof, and (d) it (or the party to whom it relends the Borrowed Securities) is borrowing or will borrow . If the Borrowed Securities (except for consist of shares or other units of ownership of real property companies, trusts or other investment entities, the Borrower acknowledges that the tax treatment of any transfers of such Borrowed Securities and manufactured and other payments with respect to such Borrowed Securities may be materially and adversely different than transfers and payments with respect to loans of ordinary equity shares and the Borrower agrees that qualify as "exempted securities" under Regulation T of the Board of Governors of the Federal Reserve System) State Street shall be entitled to reimbursement for the purpose of making delivery of any costs or expenses suffered by State Street with respect to Securities Loans involving such securities in the case of short sales, failure to receive securities required to be delivered, or as otherwise permitted pursuant to Regulation T.Borrowed Securities.
6.5 9.7 The Borrower represents that the any financial statements provided to Lender State Street pursuant to Section 7 fairly represent its 10.1 hereof provide a fair representation of the financial condition and the financial position of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio as of the date of such statements, and that there has been no material adverse change in its financial condition or the financial condition of any parent company or net capital ratio the Borrower since that the date of such financial statements that has not been disclosed in writing to LenderState Street. Each request by the Borrower for a Securities Loan or Cash Loan shall constitute a present representation: representation and warranty at such time that (a) that there has been no material adverse change in Borrower's financial condition or the financial condition of any parent company the Borrower that has not been disclosed in writing to Lender, State Street since the date of the most recent statement furnished to Lender State Street pursuant to Section 7; 10.1 and (b) that, as of the date of such request for a Securities Loan or Cash Loan, if the Borrower is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities all Applicable Law and Exchange Commission ("SEC") under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said Actsatisfies any regulatory capital requirements applicable to such entity.
6.6 To 9.8 The Borrower also makes the extent that Xxxxxx has provided Borrower with written statements identifying any of its Clients as employee benefit plans subject to title I of the Employees Retirement Income Security Act of 1974 ("ERISA"), following additional representations and warranties and each request by Borrower for a Securities Loan or a Cash Loan shall constitute a present representation thatrenewal of these representations and warranties at and as of the date of such request.
(a) This Agreement and the Collateral Documents do not conflict with any agreement or other obligation by which the Borrower is bound.
(b) There is no lawsuit, judicial or administrative proceeding, tax claim or other dispute pending or threatened against the Borrower which, if decided adversely against the Borrower, would materially impair the financial condition of the Borrower or impair its ability to repay the Securities Loan Obligations or Cash Loan Obligations, except as have been disclosed in writing by Borrower to Lender, neither Borrower nor any Affiliate of State Street.
(c) The Borrower is a "fiduciary" not in default on any material obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation, except as have been disclosed in writing to State Street.
(within d) There is no event which is, or with notice or lapse of time or both would be, an Event of Default under this Agreement.
(e) No approval, consent, exemption, authorization or other action by, or notice to or filing with, any governmental authority or any other Third Party is necessary or required in connection with (i) the meaning execution, delivery or performance by, or enforcement against, the Borrower of Section 3(21this Agreement or any Collateral Document, (ii) the grant by the Borrower of ERISAthe Liens granted by it pursuant to this Agreement and the Collateral Documents, (iii) with respect the perfection or maintenance of the Liens created under this Agreement and the Collateral Documents, including the first priority nature thereof to the assets extent applicable or (iv) the exercise by State Street of its rights under this Agreement and the Collateral Documents or the remedies in respect of the Clients so identified that may be Borrowed Securities hereunderLoan Collateral, the Cash Loan Collateral or the Custodial Collateral, as applicable, pursuant to this Agreement or the Collateral Documents.
6.7 9.9 The Borrower is the legal and beneficial owner of the Securities Loan Collateral and Cash Loan Collateral, free and clear of any liens, claims, encumbrances and transfer restrictions. Upon delivery of the Securities Loan Collateral in accordance with Section 4.1 or the identification and designation of any Custodial Collateral as Securities Loan Collateral or Cash Loan Collateral, as applicable, State Street will have, as security for the Securities Loan Obligations or Cash Loan Obligations, as applicable, a perfected first priority security interest in the Securities Loan Collateral or the Cash Loan Collateral, as applicable.
9.10 The Borrower represents and warrants that it that, with respect to each Securities Loan, the Borrower has an unqualified obligation to reimburse [name of Guarantor] for the full amount of any and all payments made or required will make an independent determination that the terms of such Securities Loan, including but not limited to the compensation to be made by [name of Guarantor] in compliance agreed upon pursuant to Section 8.1 or otherwise payable with respect to each Securities Loan, are fair and reasonable and acceptable to the Bank Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed by , notwithstanding that more favorable terms may be available from a Canadian BankThird
Appears in 3 contracts
Samples: Securities Lending and Services Agreement (Highland Global Allocation Fund), Securities Lending and Services Agreement (Highland Global Allocation Fund), Securities Lending and Services Agreement (Highland Funds Ii)
Representations of the Parties. The parties hereby make the following representations and warranties, which shall continue during the term of any Loan hereunder;
6.1 Each party hereto represents and warrants that (a) it has the power to execute and deliver this Agreement, to enter into the Loans contemplated hereby, and to perform its obligations hereunder; (b) it has taken all necessary action to authorize such execution, delivery, and performance; and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it (in the case of Lender, in its capacity as trustee, custodian or agent of the Clients)it.
6.2 Each party hereto represents and warrants that the execution, delivery and performance by it of this Agreement and each Loan hereunder will at all times comply with all applicable laws and regulations, including those of applicable securities regulatory and self-regulatory agencies and organizations.
6.3 Each party hereto represents and warrants that it has made its own determination as to the tax treatment of any dividends, remuneration, or other funds received hereunder.
6.4 Borrower represents and warrants for the benefit of Lender's Agent and each Lender that (a) it is a corporation, partnership, or other entity trust company duly organized and validly existing under federal law or the laws of the state Commonwealth of its organizationMassachusetts, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act"), a bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, or will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject to the terms and conditions hereof, and (d) the purposes for which it (borrows securities hereunder shall not violate the laws of the Commonwealth of Massachusetts or the party to whom it relends the Borrowed Securities) is borrowing or will borrow the Borrowed Securities (except for Borrowed Securities that qualify as "exempted securities" under Regulation T of the Board of Governors of the Federal Reserve System) for the purpose of making delivery of such securities in the case of short sales, failure to receive securities required to be delivered, or as otherwise permitted pursuant to Regulation T.federal laws applicable therein.
6.5 6.4 Borrower represents that the statements provided to Lender pursuant to Section 7 7.1 fairly represent its financial condition and the financial position of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio as of the date of such statementscondition, and that there has been no material adverse change in its financial condition or the financial condition of any parent company or net capital ratio since that date that has not been disclosed in writing to Lender's Agent. Lender's Agent represents that it has not been informed of any material adverse change in Lender's financial condition. Each request by Borrower for a Loan effected hereunder shall constitute a present representationrepresentation by: (ai) Borrower that there has been no material adverse change in Borrower's its financial condition or the financial condition of any parent company that has not been disclosed in writing to Lender, 's Agent since the date of the most recent statement furnished to Lender Lender's Agent pursuant to Section 77.1; and (bii) that, as Lender's Agent that it knows of no material adverse change in the date financial condition of such request for a Loan, if any Lender that the Borrower is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities and Exchange Commission ("SEC") under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said Actnot aware of.
6.6 To the extent that Xxxxxx has provided Borrower with written statements identifying any of its Clients as employee benefit plans subject to title I of the Employees Retirement Income Security Act of 1974 ("ERISA"), each request by Borrower for a Loan shall constitute a present representation that, except as disclosed in writing by Borrower to Lender, neither Borrower nor any Affiliate of Borrower is a "fiduciary" (within the meaning of Section 3(21) of ERISA) with respect to the assets of the Clients so identified that may be Borrowed Securities hereunder.
6.7 Borrower represents and warrants that it has an unqualified obligation to reimburse [name of Guarantor] for the full amount of any and all payments made or required to be made by [name of Guarantor] in compliance with the Bank Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed by a Canadian Bank
Appears in 3 contracts
Samples: Securities Lending Authorization Agreement (New England Funds Trust Ii), Securities Lending Authorization Agreement (New England Funds Trust I), Securities Lending Authorization Agreement (Fifth Third Funds)
Representations of the Parties. The parties Parties hereby make the following representations and warranties, which shall continue during be repeated continuously until the term later of the termination of this Agreement or the repayment in full of all amounts owed to State Street under any Securities Loan hereunder;or any Cash Loan under this Agreement or any Collateral Documents:
6.1 9.1 Each party Party hereto represents and warrants that (a) it has the power and authority to execute and deliver this Agreement, Agreement and to enter into the Securities Loans and Cash Loans contemplated hereby, hereby and to perform its obligations expressly set forth or contemplated hereunder; , (b) it has taken all necessary action to authorize such execution, delivery, delivery and performance; performance and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it (in the case of Lender, in its capacity as trustee, custodian or agent of the Clients)such party.
6.2 Each party hereto 9.2 State Street represents and warrants (a) that it is a trust company duly organized and validly existing under the laws of The Commonwealth of Massachusetts and (b) that it has, or will have at the time of delivery, the authority to deliver the Borrowed Securities subject to the terms and conditions hereof.
9.3 The Borrower represents and warrants that (a) it is an entity duly organized and validly existing under the laws of the state of its organization, (b) it is in compliance with all laws, regulations and supervisory directives applicable to the Borrower, (c) it has, or will have at the time of delivery or identification or designation of any Securities Loan Collateral or Cash Loan Collateral, the right to grant a security interest therein in accordance with the terms and conditions hereof, (d) it has the right to grant a security interest in the Custodial Collateral in accordance with the terms and conditions hereof and (e) it is borrowing the Borrowed Securities hereunder solely for the purposes of making delivery of such Borrowed Securities to cover short sales entered into by the Borrower.
9.4 Each Party hereto represents, warrants and covenants that the execution, delivery and performance by it of this Agreement and each Securities Loan and Cash Loan hereunder will at all times comply with all applicable laws and regulations, including those of applicable securities regulatory and self-regulatory organizationsApplicable Law.
6.3 9.5 The Borrower further represents and warrants that the Borrower has not relied on State Street or any of its Affiliates for investment, financial, legal or other advice with respect to the Securities Loans and Cash Loans and the Borrower is making its independent judgment or is relying upon External Managers or third party advisers with respect to the Securities Loans and, Cash Loans and neither State Street nor any of its Affiliates are acting as a fiduciary, advisor or agent for the Borrower with respect to any of the Securities Loans and Cash Loans.
9.6 Each party Party hereto represents and warrants that it has made its own determination as to the tax treatment of any transfers made with respect to this Agreement and any dividends, remunerationdistributions, remuneration or other funds payments received or paid hereunder.
6.4 Borrower represents and warrants that (a) it is a corporation, partnership, or other entity duly organized and validly existing under federal law or the laws of the state of its organization, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act"), a bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, or will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject to the terms and conditions hereof, and (d) it (or the party to whom it relends the Borrowed Securities) is borrowing or will borrow . If the Borrowed Securities (except for consist of shares or other units of ownership of real property companies, trusts or other investment entities, the Borrower acknowledges that the tax treatment of any transfers of such Borrowed Securities and manufactured and other payments with respect to such Borrowed Securities may be materially and adversely different than transfers and payments with respect to loans of ordinary equity shares and the Borrower agrees that qualify as "exempted securities" under Regulation T of the Board of Governors of the Federal Reserve System) State Street shall be entitled to reimbursement for the purpose of making delivery of any costs or expenses suffered by State Street with respect to Securities Loans involving such securities in the case of short sales, failure to receive securities required to be delivered, or as otherwise permitted pursuant to Regulation T.Borrowed Securities.
6.5 9.7 The Borrower represents that the any financial statements provided to Lender State Street pursuant to Section 7 fairly represent its 10.1 hereof provide a fair representation of the financial condition and the financial position of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio as of the date of such statements, and that there has been no material adverse change in its financial condition or the financial condition of any parent company or net capital ratio the Borrower since that the date of such financial statements that has not been disclosed in writing to LenderState Street. Each request by the Borrower for a Securities Loan or Cash Loan shall constitute a present representation: representation and warranty at such time that (a) that there has been no material adverse change in Borrower's financial condition or the financial condition of any parent company the Borrower that has not been disclosed in writing to Lender, State Street since the date of the most recent statement furnished to Lender State Street pursuant to Section 7; 10.1 and (b) that, as of the date of such request for a Securities Loan or Cash Loan, if the Borrower is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities all Applicable Law and Exchange Commission ("SEC") under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said Actsatisfies any regulatory capital requirements applicable to such entity.
6.6 To 9.8 The Borrower also makes the extent that Xxxxxx has provided Borrower with written statements identifying any of its Clients as employee benefit plans subject to title I of the Employees Retirement Income Security Act of 1974 ("ERISA"), following additional representations and warranties and each request by Borrower for a Securities Loan or a Cash Loan shall constitute a present representation thatrenewal of these representations and warranties at and as of the date of such request.
(a) This Agreement and the Collateral Documents do not conflict with any agreement or other obligation by which the Borrower is bound.
(b) There is no lawsuit, judicial or administrative proceeding, tax claim or other dispute pending or threatened against the Borrower which, if decided adversely against the Borrower, would materially impair the financial condition of the Borrower or impair its ability to repay the Securities Loan Obligations or Cash Loan Obligations, except as have been disclosed in writing by Borrower to Lender, neither Borrower nor any Affiliate of State Street.
(c) The Borrower is a "fiduciary" not in default on any material obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation, except as have been disclosed in writing to State Street.
(within d) There is no event which is, or with notice or lapse of time or both would be, an Event of Default under this Agreement.
(e) No approval, consent, exemption, authorization or other action by, or notice to or filing with, any governmental authority or any other Third Party is necessary or required in connection with (i) the meaning execution, delivery or performance by, or enforcement against, the Borrower of Section 3(21this Agreement or any Collateral Document, (ii) the grant by the Borrower of ERISAthe Liens granted by it pursuant to this Agreement and the Collateral Documents, (iii) with respect the perfection or maintenance of the Liens created under this Agreement and the Collateral Documents, including the first priority nature thereof to the assets extent applicable or (iv) the exercise by State Street of its rights under this Agreement and the Collateral Documents or the remedies in respect of the Clients so identified that may be Borrowed Securities hereunderLoan Collateral, the Cash Loan Collateral or the Custodial Collateral, as applicable, pursuant to this Agreement or the Collateral Documents.
6.7 9.9 The Borrower is the legal and beneficial owner of the Securities Loan Collateral and Cash Loan Collateral, free and clear of any liens, claims, encumbrances and transfer restrictions. Upon delivery of the Securities Loan Collateral in accordance with Section 4.1 or the identification and designation of any Custodial Collateral as Securities Loan Collateral or Cash Loan Collateral, as applicable, State Street will have, as security for the Securities Loan Obligations or Cash Loan Obligations, as applicable, a perfected first priority security interest in the Securities Loan Collateral or the Cash Loan Collateral, as applicable.
9.10 The Borrower represents and warrants that it that, with respect to each Securities Loan, the Borrower has an unqualified obligation to reimburse [name of Guarantor] for the full amount of any and all payments made or required will make an independent determination that the terms of such Securities Loan, including but not limited to the compensation to be made by [name of Guarantor] in compliance agreed upon pursuant to Section 8.1 or otherwise payable with respect to each Securities Loan, are fair and reasonable and acceptable to the Bank Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed by , notwithstanding that more favorable terms may be available from a Canadian BankThird
Appears in 2 contracts
Samples: Securities Lending Agreement (Highland Global Allocation Fund Ii), Securities Lending and Services Agreement (Highland Funds I)
Representations of the Parties. The parties Parties hereby make the following representations and warranties, which shall continue during be repeated continuously until the term later of the termination of this Agreement or the repayment in full of all amounts owed to State Street under any Securities Loan hereunder;under this Agreement or any Collateral Documents:
6.1 9.1 Each party Party hereto represents and warrants that (a) it has the power and authority to execute and deliver this Agreement, Agreement and to enter into the Securities Loans contemplated hereby, hereby and to perform its obligations expressly set forth or contemplated hereunder; , (b) it has taken all necessary action to authorize such execution, delivery, delivery and performance; performance and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it (in the case of Lender, in its capacity as trustee, custodian or agent of the Clients).such Party
6.2 Each party hereto 9.2 State Street represents and warrants (a) that it is a trust company duly organized and validly existing under the laws of The Commonwealth of Massachusetts and (b) that it has, or will have at the time of delivery, the authority to deliver the Borrowed Securities subject to the terms and conditions hereof.
9.3 The Borrower represents and warrants that (a) it is an entity duly organized and validly existing under the laws of the state of its organization, (b) it is in compliance with all material laws, regulations and supervisory directives applicable to the Borrower, (c) it has, or will have at the time of delivery or identification or designation of any Securities Loan Collateral, the right to grant a security interest therein in accordance with the terms and conditions hereof, (d) it has the right to grant a security interest in the Custodial Collateral in accordance with the terms and conditions hereof and (e) it is borrowing the Borrowed Securities hereunder solely for the purposes of making delivery of such Borrowed Securities to cover short sales entered into by the Borrower.
9.4 Each Party hereto represents, warrants and covenants that the execution, delivery and performance by it of this Agreement and each Securities Loan hereunder will at all times comply with all applicable laws and regulations, including those of applicable securities regulatory and self-regulatory organizationsApplicable Law.
6.3 9.5 Each Party hereto represents and warrants that it has not relied on the other Party or any of the other Party’s Affiliates for investment, financial, legal or other advice with respect to the Securities Loans and it is making its independent judgment or, in the case of the Borrower, is relying upon External Managers or third party advisers with respect to the Securities Loans and neither Party nor any of such Party’s Affiliates are acting as a fiduciary, advisor or agent for the other Party with respect to any of the Securities Loans.
9.6 Each Party hereto represents and warrants that it has made its own determination as to the tax treatment of any transfers made with respect to this Agreement and any dividends, remunerationdistributions, remuneration or other funds payments received or paid hereunder.
6.4 Borrower represents and warrants that (a) it is a corporation, partnership, or other entity duly organized and validly existing under federal law or the laws of the state of its organization, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act"), a bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, or will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject to the terms and conditions hereof, and (d) it (or the party to whom it relends the Borrowed Securities) is borrowing or will borrow . If the Borrowed Securities (except for consist of shares or other units of ownership of real property companies, trusts or other investment entities, the Borrower acknowledges that the tax treatment of any transfers of such Borrowed Securities and manufactured and other payments with respect to such Borrowed Securities may be materially and adversely different than transfers and payments with respect to loans of ordinary equity shares and the Borrower agrees that qualify as "exempted securities" under Regulation T of the Board of Governors of the Federal Reserve System) State Street shall be entitled to reimbursement for the purpose of making delivery of any costs or expenses suffered by State Street with respect to Securities Loans involving such securities in the case of short sales, failure to receive securities required to be delivered, or as otherwise permitted pursuant to Regulation T.Borrowed Securities.
6.5 9.7 The Borrower represents that the any financial statements provided to Lender State Street pursuant to Section 7 fairly represent its 10.1 hereof provide a fair representation of the financial condition of the Borrower.
9.8 The Borrower also makes the following additional representations and the financial position warranties and each request for a Securities Loan shall constitute a renewal of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio these representations and warranties at and as of the date of such statementsrequest.
(a) This Agreement and the Collateral Documents do not conflict with any agreement or other obligation by which the Borrower is bound.
(b) There is no lawsuit, and that there has been no material adverse change in its financial condition judicial or administrative proceeding, tax claim or other dispute pending or, to the Borrower’s knowledge, threatened against the Borrower which, if decided adversely against the Borrower, would materially impair the financial condition of any parent company the Borrower or net capital ratio since that date that has not impair its ability to repay the Securities Loan Obligations, except as have been disclosed in writing to Lender. Each request by State Street.
(c) The Borrower is not in default on any material obligation for a Loan shall constitute a present representation: (a) that there has been no borrowed money, any purchase money obligation or any other material adverse change in Borrower's financial condition lease, commitment, contract, instrument or the financial condition of any parent company that has not obligation, except as have been disclosed in writing to Lender, since the date of the most recent statement furnished to Lender pursuant to Section 7; and (b) that, as of the date of such request for a Loan, if the Borrower is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities and Exchange Commission ("SEC") under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said ActState Street.
6.6 To (d) There is no event which is, or with notice or lapse of time or both would be, an Event of Default under this Agreement.
9.9 Each Party represents and warrants that no approval, consent, exemption, authorization or other action by, or notice to or filing with, any governmental authority or any other Third Party is necessary or required in connection with (i) the extent that Xxxxxx has provided Borrower with written statements identifying execution, delivery or performance by, or enforcement against such Party of this Agreement or any of its Clients as employee benefit plans subject to title I of the Employees Retirement Income Security Act of 1974 Collateral Document, ("ERISA"), each request by Borrower for a Loan shall constitute a present representation that, except as disclosed in writing by Borrower to Lender, neither Borrower nor any Affiliate of Borrower is a "fiduciary" (within the meaning of Section 3(21) of ERISAii) with respect to the assets Borrower only, the grant by the Borrower of the Clients so identified that may be Borrowed Liens granted by it pursuant to this Agreement and the Collateral Documents, (iii) with respect to the Borrower only, the perfection or maintenance of the Liens created under this Agreement and the Collateral Documents, including the first priority nature thereof to the extent applicable and (iv) the exercise by State Street of its rights against the Borrower or any Third Party under this Agreement and the Collateral Documents or the remedies in respect of the Securities hereunderLoan Collateral or the Custodial Collateral, as applicable, pursuant to this Agreement or the Collateral Documents.
6.7 9.10 The Borrower is the legal and beneficial owner of the Securities Loan Collateral, free and clear of any liens, claims, encumbrances and transfer restrictions. Upon delivery of the Securities Loan Collateral in accordance with Section 4.1 or the identification and designation of any Custodial Collateral as Securities Loan Collateral, other than any prior claims of State Street arising under the Custodian Contract, State Street will have, as security for the Securities Loan Obligations, a perfected first priority security interest in the Securities Loan Collateral.
9.11 The Borrower represents and warrants that it that, with respect to each Securities Loan, the Borrower has an unqualified obligation to reimburse [name of Guarantor] for the full amount of any and all payments made or required will make an independent determination that the terms of such Securities Loan, including but not limited to the compensation to be made by [name of Guarantor] in compliance agreed upon pursuant to Section 8.1 or otherwise payable with respect to each Securities Loan, are fair and reasonable and acceptable to the Bank Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed by , notwithstanding that more favorable terms may be available from a Canadian BankThird
Appears in 2 contracts
Samples: Securities Lending and Services Agreement (Deutsche Securities Trust), Securities Lending and Services Agreement (DWS Market Trust)
Representations of the Parties. The parties hereby make the following representations and warranties, which shall continue during the term of any Loan hereunder;
6.1 Each party hereto represents and warrants that (a) it has the power to execute and deliver this Agreement, to enter into the Loans contemplated hereby, and to perform its obligations hereunder; (b) it has taken all necessary action to authorize such execution, delivery, and performance; and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it (in the case of Lender, in its capacity as trustee, custodian or agent of the Clients).
6.2 Each party hereto represents and warrants that the execution, delivery and performance by it of this Agreement and each Loan hereunder will at all times comply with all applicable laws and regulations, including those of applicable securities regulatory and self-regulatory organizations.
6.3 Each party hereto represents and warrants that it has made its own determination as to the tax treatment of any dividends, remuneration, or other funds received hereunder.
6.4 Borrower represents and warrants that (a) it is a corporation, partnership, or other entity duly organized and validly existing under federal law or the laws of the state of its organization, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "“Exchange Act"”), a bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, or will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject to the terms and conditions hereof, and (d) it (or the party to whom it relends the Borrowed Securities) is borrowing or will borrow the Borrowed Securities (except for Borrowed Securities that qualify as "“exempted securities" ” under Regulation T of the Board of Governors of the Federal Reserve System) for the purpose of making delivery of such securities in the case of short sales, failure to receive securities required to be delivered, or as otherwise permitted pursuant to Regulation T.
6.5 Borrower represents that the statements provided to Lender pursuant to Section 7 fairly represent its financial condition and the financial position of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio as of the date of such statements, and that there has been no material adverse change in its financial condition or the financial condition of any parent company or net capital ratio since that date that has not been disclosed in writing to Lender. Each request by Borrower for a Loan shall constitute a present representation: (a) that there has been no material adverse change in Borrower's ’s financial condition or the financial condition of any parent company that has not been disclosed in writing to Lender, since the date of the most recent statement furnished to Lender pursuant to Section 7; and (b) that, as of the date of such request for a Loan, if the Borrower is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities and Exchange Commission ("“SEC"”) under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said Act.
6.6 To the extent that Xxxxxx has provided Borrower with written statements identifying any of its Clients as employee benefit plans subject to title I of the Employees Retirement Income Security Act of 1974 ("“ERISA"”), each request by Borrower for a Loan shall constitute a present representation that, except as disclosed in writing by Borrower to Lender, neither Borrower nor any Affiliate of Borrower is a "“fiduciary" ” (within the meaning of Section 3(21) of ERISA) with respect to the assets of the Clients so identified that may be Borrowed Securities hereunder.
6.7 Borrower represents and warrants that it has an unqualified obligation to reimburse [name of Guarantor] for the full amount of any and all payments made or required to be made by [name of Guarantor] in compliance with the Bank Act (Canada)] Note: Delete unless Borrower's ’s obligations are being guaranteed by a Canadian Bank
Appears in 1 contract
Samples: Securities Lending Authorization Agreement (Hansberger International Series)
Representations of the Parties. The parties Parties hereby make the following representations and warranties, which shall continue during be repeated continuously until the term later of the termination of this Agreement or the repayment in full of all amounts owed to State Street under any Securities Loan hereunder;or any Cash Loan under this Agreement or any Collateral Documents:
6.1 9.1 Each party Party hereto represents and warrants that (a) it has the power and authority to execute and deliver this Agreement, Agreement and to enter into the Securities Loans and Cash Loans contemplated hereby, hereby and to perform its obligations expressly set forth or contemplated hereunder; , (b) it has taken all necessary action to authorize such execution, delivery, delivery and performance; performance and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it (in the case of Lender, in its capacity as trustee, custodian or agent of the Clients)such party.
6.2 Each party hereto 9.2 State Street represents and warrants (a) that it is a trust company duly organized and validly existing under the laws of The Commonwealth of Massachusetts and (b) that it has, or will have at the time of delivery, the authority to deliver the Borrowed Securities subject to the terms and conditions hereof.
9.3 The Borrower represents and warrants that (a) it is an entity duly organized and validly existing under the laws of the state of its organization, (b) it is in compliance with all laws, regulations and supervisory directives applicable to the Borrower, (c) it has, or will have at the time of delivery or identification or designation of any Securities Loan Collateral or Cash Loan Collateral, the right to grant a security interest therein in accordance with the terms and conditions hereof, (d) it has the right to grant a security interest in the Custodial Collateral in accordance with the terms and conditions hereof and (e) it is borrowing the Borrowed Securities hereunder solely for the purposes of making delivery of such Borrowed Securities to cover short sales entered into by the Borrower.
9.4 Each Party hereto represents, warrants and covenants that the execution, delivery and performance by it of this Agreement and each Securities Loan and Cash Loan hereunder will at all times comply with all applicable laws and regulations, including those of applicable securities regulatory and self-regulatory organizationsApplicable Law.
6.3 9.5 The Borrower further represents and warrants that the Borrower has not relied on State Street or any of its Affiliates for investment, financial, legal or other advice with respect to the Securities Loans and Cash Loans and the Borrower is making its independent judgment or is relying upon External Managers or third party advisers with respect to the Securities Loans and, Cash Loans and neither State Street nor any of its Affiliates are acting as a fiduciary, advisor or agent for the Borrower with respect to any of the Securities Loans and Cash Loans .
9.6 Each party Party hereto represents and warrants that it has made its own determination as to the tax treatment of any transfers made with respect to this Agreement and any dividends, remunerationdistributions, remuneration or other funds payments received or paid hereunder.
6.4 Borrower represents and warrants that (a) it is a corporation, partnership, or other entity duly organized and validly existing under federal law or the laws of the state of its organization, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act"), a bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, or will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject to the terms and conditions hereof, and (d) it (or the party to whom it relends the Borrowed Securities) is borrowing or will borrow . If the Borrowed Securities (except for consist of shares or other units of ownership of real property companies, trusts or other investment entities, the Borrower acknowledges that the tax treatment of any transfers of such Borrowed Securities and manufactured and other payments with respect to such Borrowed Securities may be materially and adversely different than transfers and payments with respect to loans of ordinary equity shares and the Borrower agrees that qualify as "exempted securities" under Regulation T of the Board of Governors of the Federal Reserve System) State Street shall be entitled to reimbursement for the purpose of making delivery of any costs or expenses suffered by State Street with respect to Securities Loans involving such securities in the case of short sales, failure to receive securities required to be delivered, or as otherwise permitted pursuant to Regulation T.Borrowed Securities.
6.5 9.7 The Borrower represents that the any financial statements provided to Lender State Street pursuant to Section 7 fairly represent its 10.1 hereof provide a fair representation of the financial condition and the financial position of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio as of the date of such statements, and that there has been no material adverse change in its financial condition or the financial condition of any parent company or net capital ratio the Borrower since that the date of such financial statements that has not been disclosed in writing to LenderState Street. Each request by the Borrower for a Securities Loan or Cash Loan shall constitute a present representation: representation and warranty at such time that (a) that there has been no material adverse change in Borrower's financial condition or the financial condition of any parent company the Borrower that has not been disclosed in writing to Lender, State Street since the date of the most recent statement furnished to Lender State Street pursuant to Section 7; 10.1 and (b) that, as of the date of such request for a Securities Loan or Cash Loan, if the Borrower is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities all Applicable Law and Exchange Commission ("SEC") under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said Actsatisfies any regulatory capital requirements applicable to such entity.
6.6 To 9.8 The Borrower also makes the extent that Xxxxxx has provided Borrower with written statements identifying any of its Clients as employee benefit plans subject to title I of the Employees Retirement Income Security Act of 1974 ("ERISA"), following additional representations and warranties and each request by Borrower for a Securities Loan or a Cash Loan shall constitute a present representation thatrenewal of these representations and warranties at and as of the date of such request.
(a) This Agreement and the Collateral Documents do not conflict with any agreement or other obligation by which the Borrower is bound.
(b) There is no lawsuit, judicial or administrative proceeding, tax claim or other dispute pending or threatened against the Borrower which, if decided adversely against the Borrower, would materially impair the financial condition of the Borrower or impair its ability to repay the Securities Loan Obligations or Cash Loan Obligations, except as have been disclosed in writing to State Street.
(c) The Borrower is not in default on any material obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation, except as have been disclosed in writing to State Street.
(d) There is no event which is, or with notice or lapse of time or both would be, an Event of Default under this Agreement.
(e) No approval, consent, exemption, authorization or other action by, or notice to or filing with, any governmental authority or any other Third Party is necessary or required in connection with (i) the execution, delivery or performance by, or enforcement against, the Borrower of this Agreement or any Collateral Document, (ii) the grant by the Borrower of the Liens granted by it pursuant to this Agreement and the Collateral Documents, (iii) the perfection or maintenance of the Liens created under this Agreement and the Collateral Documents, including the first priority nature thereof to the extent applicable or (iv) the exercise by State Street of its rights under this Agreement and the Collateral Documents or the remedies in respect of the Securities Loan Collateral, the Cash Loan Collateral or the Custodial Collateral, as applicable, pursuant to this Agreement or the Collateral Documents.
9.9 The Borrower is the legal and beneficial owner of the Securities Loan Collateral and Cash Loan Collateral, free and clear of any liens, claims, encumbrances and transfer restrictions. Upon delivery of the Securities Loan Collateral in accordance with Section 4.1 or the identification and designation of any Custodial Collateral as Securities Loan Collateral or Cash Loan Collateral, as applicable, State Street will have, as security for the Securities Loan Obligations or Cash Loan Obligations, as applicable, a perfected first priority security interest in the Securities Loan Collateral or the Cash Loan Collateral, as applicable.
9.10 The Borrower represents and warrants that, with respect to each Securities Loan, the Borrower has made or will make an independent determination that the terms of such Securities Loan, including but not limited to the compensation to be agreed upon pursuant to Section 8.1 or otherwise payable with respect to each Securities Loan, are fair and reasonable and acceptable to the Borrower, notwithstanding that more favorable terms may be available from a Third Party for borrowing Equivalent Securities. The Borrower further represents, warrants, acknowledges and agrees that with respect to any Securities Loans made by State Street to the Borrower hereunder, such Securities Loans are not subject to the Securities Lending Agreement and, notwithstanding any provisions of the Securities Lending Agreement to the contrary, State Street shall have no obligation, responsibility or liability to share with the Borrower any of the net income generated by the investment of Securities Loan Collateral in the form of cash delivered to State Street with respect to a Securities Loan, except for such amount as may be agreed upon in accordance with Section 8.1 hereof, or to pay or fund the agreed-upon fees, rebates or other amounts owed to State Street by the Borrower with respect to such Securities Loans.
9.11 The Borrower acknowledges and agrees that State Street in its capacity as the Lending Agent under the Securities Lending Agreement may loan securities of the Borrower to LenderState Street or its Affiliates and that State Street may also make Securities Loans and Cash Loans to the Borrower pursuant to this Agreement (collectively, neither the “State Street Principal Transactions”). The Borrower nor agrees and acknowledges that (a) it consents to all such State Street Principal Transactions and waives any Affiliate conflicts of interest arising out of such State Street Principal Transactions and any requirement by State Street or its Affiliates to account to the Borrower for any profits, earnings or other compensation earned by any of them with respect to any of the State Street Principal Transactions, (b) the State Street Principal Transactions will not constitute a breach of any trust or any fiduciary or other duty owed by State Street or its Affiliates to the Borrower and (c) the Borrower has entered into the Securities Lending Agreement and into this Agreement as a result of the desire by the Borrower to increase the opportunity for the Borrower to lend securities and to borrow cash and securities on fair and reasonable terms.
9.12 The Borrower acknowledges that it has made an independent decision to appoint State Street as its agent and to permit State Street to enter into transactions on behalf of the Borrower, including at times with State Street or its Affiliates acting as principal counterparties, pursuant to Section 3.9, Section 4.6 and Section 5.4 of this Agreement in order to obtain the benefit of the services provided hereunder by State Street and the benefit of such transactions without such services and transactions being considered a breach of any fiduciary or other duty to the Borrower by State Street or any of its Affiliates.
9.13 The Borrower represents and warrants that either (a) it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a "fiduciary" plan subject to Section 4975 of the Code or (iii) otherwise deemed to be “plan assets” subject to Title I of ERISA or Section 4975 of the Code or (b) the entry into, maintenance and performance of this Agreement and the transactions contemplated thereby do not and will not constitute a non-exempt prohibited transaction within the meaning of Section 3(21406 of ERISA or Section 4975 of the Code by reason of the availability of Section 408(b)(17) of ERISA) with respect to the assets , Department of the Clients so identified that may be Borrowed Securities hereunderLabor Prohibited Transaction Exemption 84-14, Prohibited Transaction Exemption 96-23, Prohibited Transaction Exemption 91-38 or another statutory, class or individual exemption.
6.7 9.14 The Borrower represents and warrants that it has is (i) a “qualified investor” within the meaning of Section 3(a)(54)(A) of the Securities Exchange Act of 1934, as amended; or (ii) an unqualified obligation employee benefit plan that owns and invests on a discretionary basis not less than US $25,000,000 in investments. The Borrower agrees to reimburse [name of Guarantor] for the full amount notify State Street immediately of any and all payments made or required to be made by [name of Guarantor] changes in compliance with the Bank Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed by a Canadian Bankinformation set forth in this Section 9.14.
Appears in 1 contract
Samples: Securities Lending and Services Agreement (Highland Floating Rate Opportunities Fund Ii)
Representations of the Parties. The parties hereby make the following representations and warranties, which shall continue during the term of any Loan hereunder;
6.1 Each party hereto represents and warrants that (a) it has the power to execute and deliver this Agreement, to enter into the Loans contemplated hereby, and to perform its obligations hereunder; (b) it has taken all necessary action to authorize such execution, delivery, and performance; and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it (in the case of Lender, in its capacity as trustee, custodian or agent of the Clients)it.
6.2 Each party hereto represents and warrants that the execution, delivery and performance by it of this Agreement and each Loan hereunder will at all times comply with all applicable laws and regulations, including those of applicable securities regulatory and self-regulatory agencies and organizations.
6.3 Each party hereto represents and warrants that it has made its own determination as to the tax treatment of any dividends, remuneration, or other funds received hereunder.
6.4 Borrower represents and warrants for the benefit of Lender's Agent and each Lender that (a) it is a corporation, partnership, or other entity trust company duly organized and validly existing under federal law or the laws of the state Commonwealth of its organizationMassachusetts, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act"), a bank within the meaning of Section 3(a)(6)(A)-(CSection
(a) (6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, or will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject to the terms and conditions hereof, and (d) the purposes for which it (borrows securities hereunder shall not violate the laws of the Commonwealth of Massachusetts or the party to whom it relends the Borrowed Securities) is borrowing or will borrow the Borrowed Securities (except for Borrowed Securities that qualify as "exempted securities" under Regulation T of the Board of Governors of the Federal Reserve System) for the purpose of making delivery of such securities in the case of short sales, failure to receive securities required to be delivered, or as otherwise permitted pursuant to Regulation T.federal laws applicable therein.
6.5 6.4 Borrower represents that the statements provided to Lender pursuant to Section 7 7.1 fairly represent its financial condition and the financial position of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio as of the date of such statementscondition, and that there has been no material adverse change in its financial condition or the financial condition of any parent company or net capital ratio since that date that it has not been disclosed in writing to Lender's Agent. Lender's Agent represents that Lender has advised it that the statements provided pursuant to Section 7.2 fairly represent its financial condition, and that it has not been informed of any material adverse change in Lender's financial condition since that date that has not been disclosed in writing to LenderBorrower. Each request by Borrower for a Loan effected hereunder shall constitute a present representationrepresentation by: (ai) Borrower that there has been no material adverse change in Borrower's its financial condition or the financial condition of any parent company that has not been disclosed in writing to Lender, 's Agent since the date of the most recent statement furnished to Lender Lender's Agent pursuant to Section 77.1; and (bii) that, as Lender's Agent that it knows of no material adverse change in the financial condition of any Lender that has not been disclosed in writing to Borrower since the date of the most recent statement furnished by such request for a Loan, if the Borrower is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities and Exchange Commission ("SEC") under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said Act.
6.6 To the extent that Xxxxxx has provided Borrower with written statements identifying any of its Clients as employee benefit plans subject to title I of the Employees Retirement Income Security Act of 1974 ("ERISA"), each request by Borrower for a Loan shall constitute a present representation that, except as disclosed in writing by Borrower Lender to Lender, neither Borrower nor any Affiliate of Borrower is a "fiduciary" (within the meaning of 's Agent pursuant to Section 3(21) of ERISA) with respect to the assets of the Clients so identified that may be Borrowed Securities hereunder7.2.
6.7 Borrower represents and warrants that it has an unqualified obligation to reimburse [name of Guarantor] for the full amount of any and all payments made or required to be made by [name of Guarantor] in compliance with the Bank Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed by a Canadian Bank
Appears in 1 contract
Samples: Securities Lending Authorization Agreement (Bernstein Sanford C Fund Inc)
Representations of the Parties. 8.1 The parties hereby make the following representations and warranties, which shall continue during the term of any Loan hereunder;hereunder and shall be deemed to have been relied upon by the other party hereto:
6.1 (a) Each party hereto represents and warrants that that: (a) it has the corporate power and/or authority, as applicable to such party, to execute and deliver this Agreement, to enter into the Loans Loan contemplated hereby, hereby and to perform its obligations hereunder; (b) it has taken all necessary action action, to the extent applicable to such party, to authorize such execution, delivery, delivery and performance; and (c) this Agreement constitutes a legal, valid, valid and binding obligation enforceable against it in accordance with the terms of this Agreement; and (in d) it is a sophisticated party and it has had the case of Lender, in its capacity as trustee, custodian opportunity to or agent of has obtained independent legal advice regarding this agreement and the Clients)transactions contemplated herein and any that are related or incidental hereto.
6.2 (b) Each party hereto represents and warrants that the execution, delivery and performance by it of this Agreement and each the Loan hereunder will at all times comply with all applicable laws and regulations, regulations including those of applicable applicable, securities regulatory and self-regulatory organizations.
6.3 (c) Each party hereto represents and warrants that it has made its own determination determinations as to the tax treatment of any dividends, remuneration, remuneration or other funds received hereunderhereunder and neither shall rely on the other in respect thereof and each shall retain its own professional tax advisor for the purpose of advising it on specific tax matters relating to the Loan.
6.4 (d) Borrower represents and warrants that (a) it is a corporation, partnership, or other entity duly organized and validly existing under federal law or the laws of the state of its organization, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act"), a bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, or will have at the time of delivery Delivery of any Collateral, the right to grant a first priority security interest therein subject pursuant to the terms and conditions hereof, and (d) it (or the party to whom it relends the Borrowed Securities) is borrowing or will borrow the Borrowed Securities (except for Borrowed Securities that qualify as "exempted securities" under Regulation T of the Board of Governors of the Federal Reserve System) for the purpose of making delivery of such securities in the case of short sales, failure to receive securities required to be delivered, or as otherwise permitted pursuant to Regulation T.
6.5 Borrower represents that the statements provided to Lender pursuant to Section 7 fairly represent its financial condition and the financial position of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio as of the date of such statements, and that there has been no material adverse change in its financial condition or the financial condition of any parent company or net capital ratio since that date that has not been disclosed in writing to Lender. Each request by Borrower for a Loan shall constitute a present representation: (a) that there has been no material adverse change in Borrower's financial condition or the financial condition of any parent company that has not been disclosed in writing to Lender, since the date of the most recent statement furnished to Lender pursuant to Section 7; and (b) that, as of the date of such request for a Loan, if the Borrower is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities and Exchange Commission ("SEC") under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said Act.
6.6 To the extent that Xxxxxx has provided Borrower with written statements identifying any of its Clients as employee benefit plans subject to title I of the Employees Retirement Income Security Act of 1974 ("ERISA"), each request by Borrower for a Loan shall constitute a present representation that, except as disclosed in writing by Borrower to Lender, neither Borrower nor any Affiliate of Borrower is a "fiduciary" (within the meaning of Section 3(21e) of ERISA) with respect to the assets of the Clients so identified that may be Borrowed Securities hereunder.
6.7 Borrower Lender represents and warrants that it has an unqualified obligation has, or will have at the time of Delivery of any Loaned Securities, the right to reimburse [name Deliver the Loaned Securities pursuant to the terms and conditions hereof.
(f) Lender represents and warrants that the Loaned Securities consist of Guarantor] shares of a class of the capital stock of the Corporation, which class is listed on a stock exchange prescribed for the full amount purposes of applicable tax laws.
(g) Lender and Borrower represent and warrant that they deal with each other at arm’s length for purposes of applicable tax laws.
(h) Each party hereto agrees that this Agreement and the Loan made hereunder shall be “eligible financial contracts” and/or “secured contracts” for the purpose of any insolvency, security or remedial legislation or regulation and all payments made or required to shall in no circumstance be made by [name considered a loan of Guarantor] in compliance with the Bank Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed by a Canadian Bankmonies.
Appears in 1 contract
Samples: Securities Lending Agreement (MedMen Enterprises, Inc.)
Representations of the Parties. The parties Parties hereby make the following representations and warranties, which shall continue during be repeated continuously until the term later of the termination of this Agreement or the repayment in full of all amounts owed to State Street under any Securities Loan hereunder;under this Agreement or any Collateral Documents:
6.1 9.1 Each party Party hereto represents and warrants that (a) it has the power and authority to execute and deliver this Agreement, Agreement and to enter into the Securities Loans contemplated hereby, hereby and to perform its obligations expressly set forth or contemplated hereunder; , (b) it has taken all necessary action to authorize such execution, delivery, delivery and performance; performance and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it (in the case of Lender, in its capacity as trustee, custodian or agent of the Clients)such party.
6.2 Each party hereto 9.2 State Street represents and warrants (a) that it is a trust company duly organized and validly existing under the laws of The Commonwealth of Massachusetts; (b) that it has, or will have at the time of delivery, the authority to deliver the Borrowed Securities subject to the terms and conditions hereof; and (c) that it is a “bank” as defined in the Investment Company Act.
9.3 The Borrower represents and warrants that (a) it is an entity duly organized and validly existing under the laws of the state of its organization, (b) it is in compliance in all material respects with all laws, regulations and supervisory directives applicable to the Borrower, (c) it has, or will have at the time of delivery or identification or designation of any Securities Loan Collateral, the right to grant a security interest therein in accordance with the terms and conditions hereof, (d) it has the right to grant a security interest in the Custodial Collateral in accordance with the terms and conditions hereof and (e) it is borrowing the Borrowed Securities hereunder solely for the purposes of making delivery of such Borrowed Securities to cover short sales entered into by the Borrower.
9.4 Each Party hereto represents, warrants and covenants that the execution, delivery and performance by it of this Agreement and each Securities Loan hereunder will at all times comply with all applicable laws and regulations, including those of applicable securities regulatory and self-regulatory organizationsApplicable Law.
6.3 9.5 The Borrower further represents and warrants that the Borrower has not relied on State Street or any of its Affiliates for investment, financial, legal or other advice with respect to the Securities Loans and the Borrower is making its independent judgment or is relying upon External Managers or third party advisers with respect to the Securities Loans and neither State Street nor any of its Affiliates are acting as a fiduciary, advisor or agent for the Borrower with respect to any of the Securities Loans.
9.6 Each party Party hereto represents and warrants that it has made its own determination as to the tax treatment of any transfers made with respect to this Agreement and any dividends, remunerationdistributions, remuneration or other funds payments received or paid hereunder.
6.4 Borrower represents and warrants that (a) it is a corporation, partnership, or other entity duly organized and validly existing under federal law or the laws of the state of its organization, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act"), a bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, or will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject to the terms and conditions hereof, and (d) it (or the party to whom it relends the Borrowed Securities) is borrowing or will borrow . If the Borrowed Securities (except for consist of shares or other units of ownership of real property companies, trusts or other investment entities, the Borrower acknowledges that the tax treatment of any transfers of such Borrowed Securities and manufactured and other payments with respect to such Borrowed Securities may be materially and adversely different than transfers and payments with respect to loans of ordinary equity shares and the Borrower agrees that qualify as "exempted securities" under Regulation T of the Board of Governors of the Federal Reserve System) State Street shall be entitled to reimbursement for the purpose of making delivery of any costs or expenses suffered by State Street with respect to Securities Loans involving such securities in the case of short sales, failure to receive securities required to be delivered, or as otherwise permitted pursuant to Regulation T.Borrowed Securities.
6.5 9.7 The Borrower represents that the any financial statements provided to Lender State Street pursuant to Section 7 fairly represent its 10.1 hereof provide a fair representation of the financial condition and the financial position of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio as of the date of such statements, and that there has been no material adverse change in its financial condition or the financial condition of any parent company or net capital ratio the Borrower since that the date of such financial statements that has not been disclosed in writing to LenderState Street. Each request by the Borrower for a Securities Loan shall constitute a present representation: representation and warranty at such time that (a) that there has been no material adverse change in Borrower's financial condition or the financial condition of any parent company the Borrower that has not been disclosed in writing to Lender, State Street since the date of the most recent statement furnished to Lender State Street pursuant to Section 7; 10.1 and (b) that, as of the date of such request for a Securities Loan, if the Borrower is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities all Applicable Law and Exchange Commission ("SEC") under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said Actsatisfies any regulatory capital requirements applicable to such entity.
6.6 To 9.8 The Borrower also makes the extent that Xxxxxx has provided Borrower with written statements identifying any of its Clients as employee benefit plans subject to title I of the Employees Retirement Income Security Act of 1974 ("ERISA"), following additional representations and warranties and each request by Borrower for a Securities Loan shall constitute a present representation thatrenewal of these representations and warranties at and as of the date of such request.
(a) This Agreement and the Collateral Documents do not conflict with any agreement or other obligation by which the Borrower is bound.
(b) There is no lawsuit, judicial or administrative proceeding, tax claim or other dispute pending or threatened against the Borrower which, if decided adversely against the Borrower, would materially impair the financial condition of the Borrower or impair its ability to repay the Securities Loan Obligations, except as have been disclosed in writing by Borrower to Lender, neither Borrower nor any Affiliate of State Street.
(c) The Borrower is a "fiduciary" not in default on any material obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation, except as have been disclosed in writing to State Street.
(within d) There is no event which is, or with notice or lapse of time or both would be, an Event of Default under this Agreement.
(e) No approval, consent, exemption, authorization or other action by, or notice to or filing with, any governmental authority or any other Third Party is necessary or required in connection with (i) the meaning execution, delivery or performance by, or enforcement against, the Borrower of Section 3(21this Agreement or any Collateral Document, (ii) the grant by the Borrower of ERISAthe Liens granted by it pursuant to this Agreement and the Collateral Documents, (iii) with respect the perfection or maintenance of the Liens created under this Agreement and the Collateral Documents, including the first priority nature thereof to the assets extent applicable or (iv) the exercise by State Street of its rights under this Agreement and the Collateral Documents or the remedies in respect of the Clients so identified that may be Borrowed Securities hereunderLoan Collateral or the Custodial Collateral, as applicable, pursuant to this Agreement or the Collateral Documents.
6.7 9.9 The Borrower is the legal and beneficial owner of the Securities Loan Collateral, free and clear of any liens, claims, encumbrances and transfer restrictions. Upon delivery of the Securities Loan Collateral in accordance with Section 4.1 or the identification and designation of any Custodial Collateral as Securities Loan Collateral, State Street will have, as security for the Securities Loan Obligations, a perfected first priority security interest in the Securities Loan Collateral.
9.10 The Borrower represents and warrants that it that, with respect to each Securities Loan, the Borrower has an unqualified obligation to reimburse [name of Guarantor] for the full amount of any and all payments made or required will make an independent determination that the terms of such Securities Loan, including but not limited to the compensation to be made by [name of Guarantor] in compliance agreed upon pursuant to Section 8.1 or otherwise payable with respect to each Securities Loan, are fair and reasonable and acceptable to the Bank Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed by , notwithstanding that more favorable terms may be available from a Canadian BankThird
Appears in 1 contract
Samples: Securities Lending and Services Agreement (Tiff Investment Program)
Representations of the Parties. The parties Parties hereby make the following representations and warranties, which shall continue during be repeated continuously until the term later of the termination of this Agreement or the repayment in full of all amounts owed to State Street under any Securities Loan hereunder;under this Agreement or any Collateral Documents:
6.1 9.1. Each party Party hereto represents and warrants that (a) it has the power and authority to execute and deliver this Agreement, Agreement and to enter into the Securities Loans contemplated hereby, hereby and to perform its obligations expressly set forth or contemplated hereunder; , (b) it has taken all necessary action to authorize such execution, delivery, delivery and performance; performance and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it (in the case of Lender, in its capacity as trustee, custodian or agent of the Clients)such party.
6.2 Each party hereto 9.2. State Street represents and warrants (a) that it is a trust company duly organized and validly existing under the laws of The Commonwealth of Massachusetts, (b) it is in compliance with all applicable laws, regulations and supervisory directives as it relates to its ability to perform under this Agreement, and (c) it has, or will have at the time of delivery, the authority to deliver the Borrowed Securities subject to the terms and conditions hereof.
9.3. The Borrower represents and warrants that (a) it is an entity duly organized and validly existing under the laws of the state of its organization, (b) it is in compliance with all laws, regulations and supervisory directives applicable to the Borrower, (c) it has, or will have at the time of delivery or identification or designation of any Securities Loan Collateral, the right to grant a security interest therein in accordance with the terms and conditions hereof, and (d) it is borrowing the Borrowed Securities hereunder solely for the purposes of making delivery of such Borrowed Securities to cover short sales entered into by the Borrower.
9.4. Each Party hereto represents, warrants and covenants that the execution, delivery and performance by it of this Agreement and each Securities Loan hereunder will at all times comply with all applicable laws and regulations, including those of applicable securities regulatory and self-regulatory organizationsApplicable Law.
6.3 9.5. The Borrower further represents and warrants that the Borrower has not relied on State Street or any of its Affiliates for investment, financial, legal or other advice with respect to the Securities Loans and the Borrower is making its independent judgment or is relying upon External Managers or third party advisers with respect to Borrower’s decision to enter into the Securities Loans, and neither State Street nor any of its Affiliates are acting as a fiduciary, advisor or agent for the Borrower with respect to the Borrower’s decision to enter into any of the Securities Loans.
9.6. Each party Party hereto represents and warrants that it has made its own determination as to the tax treatment of any transfers made with respect to this Agreement and any dividends, remunerationdistributions, remuneration or other funds payments received or paid hereunder.
6.4 Borrower represents and warrants that (a) it is a corporation, partnership, or other entity duly organized and validly existing under federal law or the laws of the state of its organization, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act"), a bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, or will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject to the terms and conditions hereof, and (d) it (or the party to whom it relends the Borrowed Securities) is borrowing or will borrow . If the Borrowed Securities consist of shares or other units of ownership of real property companies, trusts or other similar investment entities (except for the “Real Estate Securities”), the Borrower acknowledges that the tax treatment of any transfers of such Borrowed Securities and manufactured and other payments with respect to such Borrowed Securities may be materially and adversely different than transfers and payments with respect to loans of other equity shares and the Borrower agrees that qualify as "exempted securities" under Regulation T State Street shall be entitled to reimbursement (without duplication of the Board any other rights of Governors of the Federal Reserve Systemreimbursement to which State Street may be entitled hereunder) for any tax-related out-of-pocket costs or expenses reasonably incurred by State Street with respect to Securities Loans involving the purpose of making delivery of such securities in the case of short sales, failure to receive securities required to be delivered, or as otherwise permitted pursuant to Regulation T.Real Estate Securities.
6.5 9.7. The Borrower represents that the any financial statements provided or made available to Lender State Street pursuant to Section 7 fairly represent its 10.1 hereof provide a fair representation of the financial condition and the financial position of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio as of the date of such statements, and that there has been no material adverse change in its financial condition or the financial condition of any parent company or net capital ratio the Borrower since that the date of such financial statements that has not been disclosed in writing to LenderState Street. Each request by the Borrower for a Securities Loan shall constitute a present representation: representation and warranty at such time that (a) that there has been no material adverse change in Borrower's financial condition or the financial condition of any parent company the Borrower that has not been disclosed in writing to Lender, State Street since the date of the most recent statement furnished to Lender State Street pursuant to Section 7; 10.1 and (b) that, as of the date of such request for a Securities Loan, if the Borrower is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities all Applicable Law and Exchange Commission ("SEC") under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said Actsatisfies any regulatory capital requirements applicable to such entity.
6.6 To 9.8. The Borrower also makes the extent that Xxxxxx has provided Borrower with written statements identifying any of its Clients as employee benefit plans subject to title I of the Employees Retirement Income Security Act of 1974 ("ERISA"), following additional representations and warranties and each request by Borrower for a Securities Loan shall constitute a present representation thatrenewal of these representations and warranties at and as of the date of such request.
(a) This Agreement and the Collateral Documents do not conflict with any agreement or other obligation by which the Borrower is bound.
(b) To the Borrower’s knowledge, there is no lawsuit, judicial or administrative proceeding, tax claim or other dispute pending or threatened against the Borrower which, if decided adversely against the Borrower, would materially impair the financial condition of the Borrower or impair its ability to repay the Securities Loan Obligations, except as have been disclosed in writing by Borrower to Lender, neither Borrower nor any Affiliate of State Street.
(c) The Borrower is a "fiduciary" not in default on any material obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation, except as have been disclosed in writing to State Street.
(within d) There is no event currently outstanding which is an Event of Default under this Agreement.
(e) No approval, consent, exemption, authorization or other action by, or notice to or filing with, any governmental authority or any other Third Party is necessary or required in connection with (i) the meaning execution, delivery or performance by, or enforcement against, the Borrower of Section 3(21this Agreement or any Collateral Document, (ii) of ERISA) with respect to the assets grant by the Borrower of the Clients so identified that may be Borrowed Securities hereunder.
6.7 Borrower represents Liens granted by it pursuant to this Agreement and warrants that it has an unqualified obligation to reimburse [name of Guarantor] for the full amount of any and all payments made or required to be made by [name of Guarantor] in compliance with the Bank Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed by a Canadian BankCollateral Documents,
Appears in 1 contract
Samples: Securities Lending and Services Agreement (Goldman Sachs Trust)
Representations of the Parties. The parties Parties hereby make the following representations and warranties, which shall continue during be repeated continuously until the term later of the termination of this Agreement or the repayment in full of all amounts owed to State Street under any Securities Loan hereunder;or any Cash Loan under this Agreement or any Collateral Documents:
6.1 9.1 Each party Party hereto represents and warrants that (a) it has the power and authority to execute and deliver this Agreement, Agreement and to enter into the Securities Loans and Cash Loans contemplated hereby, hereby and to perform its obligations expressly set forth or contemplated hereunder; , (b) it has taken all necessary action to authorize such execution, delivery, delivery and performance; performance and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it (in the case of Lender, in its capacity as trustee, custodian or agent of the Clients)such party.
6.2 Each party hereto 9.2 State Street represents and warrants (a) that it is a trust company duly organized and validly existing under the laws of The Commonwealth of Massachusetts and (b) that it has, or will have at the time of delivery, the authority to deliver the Borrowed Securities subject to the terms and conditions hereof.
9.3 The Borrower represents and warrants that (a) it is an entity duly organized and validly existing under the laws of the state of its organization, (b) it is in compliance with all laws, regulations and supervisory directives applicable to the Borrower, (c) it has, or will have at the time of delivery or identification or designation of any Securities Loan Collateral or Cash Loan Collateral, the right to grant a security interest therein in accordance with the terms and conditions hereof, (d) it has the right to grant a security interest in the Custodial Collateral in accordance with the terms and conditions hereof and (e) it is borrowing the Borrowed Securities hereunder solely for the purposes of making delivery of such Borrowed Securities to cover short sales entered into by the Borrower.
9.4 Each Party hereto represents, warrants and covenants that the execution, delivery and performance by it of this Agreement and each Securities Loan and Cash Loan hereunder will at all times comply with all applicable laws and regulations, including those of applicable securities regulatory and self-regulatory organizationsApplicable Law.
6.3 9.5 The Borrower further represents and warrants that the Borrower has not relied on State Street or any of its Affiliates for investment, financial, legal or other advice with respect to the Securities Loans and Cash Loans and the Borrower is making its independent judgment or is relying upon External Managers or third party advisers with respect to the Securities Loans and, Cash Loans and neither State Street nor any of its Affiliates are acting as a fiduciary, advisor or agent for the Borrower with respect to any of the Securities Loans and Cash Loans.
9.6 Each party Party hereto represents and warrants that it has made its own determination as to the tax treatment of any transfers made with respect to this Agreement and any dividends, remunerationdistributions, remuneration or other funds payments received or paid hereunder.
6.4 Borrower represents and warrants that (a) it is a corporation, partnership, or other entity duly organized and validly existing under federal law or the laws of the state of its organization, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act"), a bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, or will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject to the terms and conditions hereof, and (d) it (or the party to whom it relends the Borrowed Securities) is borrowing or will borrow . If the Borrowed Securities (except for consist of shares or other units of ownership of real property companies, trusts or other investment entities, the Borrower acknowledges that the tax treatment of any transfers of such Borrowed Securities and manufactured and other payments with respect to such Borrowed Securities may be materially and adversely different than transfers and payments with respect to loans of ordinary equity shares and the Borrower agrees that qualify as "exempted securities" under Regulation T of the Board of Governors of the Federal Reserve System) State Street shall be entitled to reimbursement for the purpose of making delivery of any costs or expenses suffered by State Street with respect to Securities Loans involving such securities in the case of short sales, failure to receive securities required to be delivered, or as otherwise permitted pursuant to Regulation T.Borrowed Securities.
6.5 9.7 The Borrower represents that the any financial statements provided to Lender State Street pursuant to Section 7 fairly represent its 10.1 hereof provide a fair representation of the financial condition and the financial position of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio as of the date of such statements, and that there has been no material adverse change in its financial condition or the financial condition of any parent company or net capital ratio the Borrower since that the date of such financial statements that has not been disclosed in writing to LenderState Street. Each request by the Borrower for a Securities Loan or Cash Loan shall constitute a present representation: representation and warranty at such time that (a) that there has been no material adverse change in Borrower's financial condition or the financial condition of any parent company the Borrower that has not been disclosed in writing to Lender, State Street since the date of the most recent statement furnished to Lender State Street pursuant to Section 7; 10.1 and (b) that, as of the date of such request for a Securities Loan or Cash Loan, if the Borrower is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities all Applicable Law and Exchange Commission ("SEC") under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said Actsatisfies any regulatory capital requirements applicable to such entity.
6.6 To 9.8 The Borrower also makes the extent that Xxxxxx has provided Borrower with written statements identifying any of its Clients as employee benefit plans subject to title I of the Employees Retirement Income Security Act of 1974 ("ERISA"), following additional representations and warranties and each request by Borrower for a Securities Loan or a Cash Loan shall constitute a present representation thatrenewal of these representations and warranties at and as of the date of such request.
(a) This Agreement and the Collateral Documents do not conflict with any agreement or other obligation by which the Borrower is bound.
(b) There is no lawsuit, judicial or administrative proceeding, tax claim or other dispute pending or threatened against the Borrower which, if decided adversely against the Borrower, would materially impair the financial condition of the Borrower or impair its ability to repay the Securities Loan Obligations or Cash Loan Obligations, except as have been disclosed in writing to State Street.
(c) The Borrower is not in default on any material obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation, except as have been disclosed in writing to State Street.
(d) There is no event which is, or with notice or lapse of time or both would be, an Event of Default under this Agreement.
(e) No approval, consent, exemption, authorization or other action by, or notice to or filing with, any governmental authority or any other Third Party is necessary or required in connection with (i) the execution, delivery or performance by, or enforcement against, the Borrower of this Agreement or any Collateral Document, (ii) the grant by the Borrower of the Liens granted by it pursuant to this Agreement and the Collateral Documents, (iii) the perfection or maintenance of the Liens created under this Agreement and the Collateral Documents, including the first priority nature thereof to the extent applicable or (iv) the exercise by State Street of its rights under this Agreement and the Collateral Documents or the remedies in respect of the Securities Loan Collateral, the Cash Loan Collateral or the Custodial Collateral, as applicable, pursuant to this Agreement or the Collateral Documents.
9.9 The Borrower is the legal and beneficial owner of the Securities Loan Collateral and Cash Loan Collateral, free and clear of any liens, claims, encumbrances and transfer restrictions. Upon delivery of the Securities Loan Collateral in accordance with Section 4.1 or the identification and designation of any Custodial Collateral as Securities Loan Collateral or Cash Loan Collateral, as applicable, State Street will have, as security for the Securities Loan Obligations or Cash Loan Obligations, as applicable, a perfected first priority security interest in the Securities Loan Collateral or the Cash Loan Collateral, as applicable.
9.10 The Borrower represents and warrants that, with respect to each Securities Loan, the Borrower has made or will make an independent determination that the terms of such Securities Loan, including but not limited to the compensation to be agreed upon pursuant to Section 8.1 or otherwise payable with respect to each Securities Loan, are fair and reasonable and acceptable to the Borrower, notwithstanding that more favorable terms may be available from a Third Party for borrowing Equivalent Securities. The Borrower further represents, warrants, acknowledges and agrees that with respect to any Securities Loans made by State Street to the Borrower hereunder, such Securities Loans are not subject to the Securities Lending Agreement and, notwithstanding any provisions of the Securities Lending Agreement to the contrary, State Street shall have no obligation, responsibility or liability to share with the Borrower any of the net income generated by the investment of Securities Loan Collateral in the form of cash delivered to State Street with respect to a Securities Loan, except for such amount as may be agreed upon in accordance with Section 8.1 hereof, or to pay or fund the agreed-upon fees, rebates or other amounts owed to State Street by the Borrower with respect to such Securities Loans.
9.11 The Borrower acknowledges and agrees that State Street in its capacity as the Lending Agent under the Securities Lending Agreement may loan securities of the Borrower to LenderState Street or its Affiliates and that State Street may also make Securities Loans and Cash Loans to the Borrower pursuant to this Agreement (collectively, neither the “State Street Principal Transactions”). The Borrower nor agrees and acknowledges that (a) it consents to all such State Street Principal Transactions and waives any Affiliate conflicts of interest arising out of such State Street Principal Transactions and any requirement by State Street or its Affiliates to account to the Borrower for any profits, earnings or other compensation earned by any of them with respect to any of the State Street Principal Transactions, (b) the State Street Principal Transactions will not constitute a breach of any trust or any fiduciary or other duty owed by State Street or its Affiliates to the Borrower and (c) the Borrower has entered into the Securities Lending Agreement and into this Agreement as a result of the desire by the Borrower to increase the opportunity for the Borrower to lend securities and to borrow cash and securities on fair and reasonable terms.
9.12 The Borrower acknowledges that it has made an independent decision to appoint State Street as its agent and to permit State Street to enter into transactions on behalf of the Borrower, including at times with State Street or its Affiliates acting as principal counterparties, pursuant to Section 3.9, Section 4.6 and Section 5.4 of this Agreement in order to obtain the benefit of the services provided hereunder by State Street and the benefit of such transactions without such services and transactions being considered a breach of any fiduciary or other duty to the Borrower by State Street or any of its Affiliates.
9.13 The Borrower represents and warrants that either (a) it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a "fiduciary" plan subject to Section 4975 of the Code or (iii) otherwise deemed to be “plan assets” subject to Title I of ERISA or Section 4975 of the Code or (b) the entry into, maintenance and performance of this Agreement and the transactions contemplated thereby do not and will not constitute a non-exempt prohibited transaction within the meaning of Section 3(21406 of ERISA or Section 4975 of the Code by reason of the availability of Section 408(b)(17) of ERISA) with respect to the assets , Department of the Clients so identified that may be Borrowed Securities hereunderLabor Prohibited Transaction Exemption 84-14, Prohibited Transaction Exemption 96-23, Prohibited Transaction Exemption 91-38 or another statutory, class or individual exemption.
6.7 9.14 The Borrower represents and warrants that it has is (i) a “qualified investor” within the meaning of Section 3(a)(54)(A) of the Securities Exchange Act of 1934, as amended; or (ii) an unqualified obligation employee benefit plan that owns and invests on a discretionary basis not less than US $25,000,000 in investments. The Borrower agrees to reimburse [name of Guarantor] for the full amount notify State Street immediately of any and all payments made or required to be made by [name of Guarantor] changes in compliance with the Bank Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed by a Canadian Bankinformation set forth in this Section 9.14.
Appears in 1 contract
Representations of the Parties. The parties Parties hereby make the following representations and warranties, which shall continue during be repeated continuously until the term later of the termination of this Agreement or the repayment in full of all amounts owed to State Street under any Securities Loan hereunder;or any Cash Loan under this Agreement or any Collateral Documents:
6.1 9.1 Each party Party hereto represents and warrants that (a) it has the power and authority to execute and deliver this Agreement, Agreement and to enter into the Securities Loans and Cash Loans contemplated hereby, hereby and to perform its obligations expressly set forth or contemplated hereunder; , (b) it has taken all necessary action to authorize such execution, delivery, delivery and performance; performance and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it (in the case of Lender, in its capacity as trustee, custodian or agent of the Clients)such party.
6.2 Each party hereto 9.2 State Street represents and warrants (a) that it is a trust company duly organized and validly existing under the laws of The Commonwealth of Massachusetts and (b) that it has, or will have at the time of delivery, the authority to deliver the Borrowed Securities subject to the terms and conditions hereof.
9.3 The Borrower represents and warrants that (a) it is an entity duly organized and validly existing under the laws of the state of its organization, (b) it is in compliance with all laws, regulations and supervisory directives applicable to the Borrower, (c) it has, or will have at the time of delivery or identification or designation of any Securities Loan Collateral or Cash Loan Collateral, the right to grant a security interest therein in accordance with the terms and conditions hereof, and (d) it is borrowing the Borrowed Securities hereunder solely for the purposes of making delivery of such Borrowed Securities to cover short sales entered into by the Borrower.
9.4 Each Party hereto represents, warrants and covenants that the execution, delivery and performance by it of this Agreement and each Securities Loan and Cash Loan hereunder will at all times comply with all applicable laws and regulations, including those of applicable securities regulatory and self-regulatory organizationsApplicable Law.
6.3 9.5 The Borrower further represents and warrants that the Borrower has not relied on State Street or any of its Affiliates for investment, financial, legal or other advice with respect to the Securities Loans and Cash Loans and the Borrower is making its independent judgment or is relying upon External Managers or third party advisers with respect to the Securities Loans and, Cash Loans and neither State Street nor any of its Affiliates are acting as a fiduciary, advisor or agent for the Borrower with respect to any of the Securities Loans and Cash Loans .
9.6 Each party Party hereto represents and warrants that it has made its own determination as to the tax treatment of any transfers made with respect to this Agreement and any dividends, remunerationdistributions, remuneration or other funds payments received or paid hereunder.
6.4 Borrower represents and warrants that (a) it is a corporation, partnership, or other entity duly organized and validly existing under federal law or the laws of the state of its organization, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act"), a bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, or will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject to the terms and conditions hereof, and (d) it (or the party to whom it relends the Borrowed Securities) is borrowing or will borrow . If the Borrowed Securities (except for consist of shares or other units of ownership of real property companies, trusts or other investment entities, the Borrower acknowledges that the tax treatment of any transfers of such Borrowed Securities and manufactured and other payments with respect to such Borrowed Securities may be materially and adversely different than transfers and payments with respect to loans of ordinary equity shares and the Borrower agrees that qualify as "exempted securities" under Regulation T of the Board of Governors of the Federal Reserve System) State Street shall be entitled to reimbursement for the purpose of making delivery of any costs or expenses suffered by State Street with respect to Securities Loans involving such securities in the case of short sales, failure to receive securities required to be delivered, or as otherwise permitted pursuant to Regulation T.Borrowed Securities.
6.5 9.7 The Borrower represents that the any financial statements provided to Lender State Street pursuant to Section 7 fairly represent its 10.1 hereof provide a fair representation of the financial condition and the financial position of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio as of the date of such statements, and that there has been no material adverse change in its financial condition or the financial condition of any parent company or net capital ratio the Borrower since that the date of such financial statements that has not been disclosed in writing to LenderState Street. Each request by the Borrower for a Securities Loan or Cash Loan shall constitute a present representation: representation and warranty at such time that (a) that there has been no material adverse change in Borrower's financial condition or the financial condition of any parent company the Borrower that has not been disclosed in writing to Lender, State Street since the date of the most recent statement furnished to Lender State Street pursuant to Section 7; 10.1 and (b) that, as of the date of such request for a Securities Loan or Cash Loan, if the Borrower is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities all Applicable Law in all material respects and Exchange Commission ("SEC") under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said Actsatisfies any regulatory capital requirements applicable to such entity.
6.6 To 9.8 The Borrower also makes the extent that Xxxxxx has provided Borrower with written statements identifying any of its Clients as employee benefit plans subject to title I of the Employees Retirement Income Security Act of 1974 ("ERISA"), following additional representations and warranties and each request by Borrower for a Securities Loan or a Cash Loan shall constitute a present representation thatrenewal of these representations and warranties at and as of the date of such request.
(a) This Agreement and the Collateral Documents do not conflict with any agreement or other obligation by which the Borrower is bound.
(b) The Borrower is not in default on any material obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation, except as have been disclosed in writing to State Street.
(c) No approval, consent, exemption, authorization or other action by, or notice to or filing with, any governmental authority or any other Third Party is necessary or required in connection with (i) the execution, delivery or performance by, or enforcement against, the Borrower of this Agreement or any Collateral Document, (ii) the grant by the Borrower of the Liens granted by it pursuant to Lenderthis Agreement and the Collateral Documents, neither Borrower nor any Affiliate (iii) the perfection or maintenance of the Liens created under this Agreement and the Collateral Documents, including the first priority nature thereof to the extent applicable or (iv) the exercise by State Street of its rights under this Agreement and the Collateral Documents or the remedies in respect of the Securities Loan Collateral, the Cash Loan Collateral or the Custodial Collateral, as applicable, pursuant to this Agreement or the Collateral Documents.
9.9 The Borrower is a "fiduciary" (within the meaning of Section 3(21) of ERISA) with respect to the assets legal and beneficial owner of the Clients so identified that may be Borrowed Securities hereunderLoan Collateral and Cash Loan Collateral, free and clear of any liens, claims, encumbrances and transfer restrictions. Upon delivery of the Securities Loan Collateral in accordance with Section 4.1 or the identification and designation of any Custodial Collateral as Securities Loan Collateral or Cash Loan Collateral, as applicable, State Street will have, as security for the Securities Loan Obligations or Cash Loan Obligations, as applicable, a perfected first priority security interest in the Securities Loan Collateral or the Cash Loan Collateral, as applicable.
6.7 9.10 The Borrower represents and warrants that it that, with respect to each Securities Loan, the Borrower has an unqualified obligation to reimburse [name of Guarantor] for the full amount of any and all payments made or required will make an independent determination that the terms of such Securities Loan, including but not limited to the compensation to be made by [name of Guarantor] in compliance agreed upon pursuant to Section 8.1 or otherwise payable with respect to each Securities Loan, are fair and reasonable and acceptable to the Bank Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed by , notwithstanding that more favorable terms may be available from a Canadian BankThird
Appears in 1 contract
Samples: Securities Lending and Services Agreement (Credit Suisse Opportunity Funds)
Representations of the Parties. The parties hereby make the following representations and warranties, which shall continue during the term of any Loan hereunder;:
6.1 Each party hereto represents and warrants that (a) it has the power to execute and deliver this Agreement, to enter into the Loans contemplated hereby, and to perform its obligations hereunder; (b) it has taken all necessary action to authorize such execution, delivery, and performance; and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it (in the case of Lender, in its capacity as trustee, custodian custodian, or agent of the Clients).
6.2 Each party hereto represents and warrants that the execution, delivery and performance by it of this Agreement and each Loan hereunder will at all times comply with all applicable laws and regulations, including those of applicable securities regulatory and self-regulatory organizations.
6.3 Each party hereto represents and warrants that it has made its own determination as to the tax treatment of any dividends, remuneration, or other funds received hereunder.
6.4 Borrower represents and warrants that (a) it is a corporation, partnership, or other entity duly organized and validly existing under federal law or the laws of the state of its organization, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act"), ) or a bank Bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, or will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject to the terms and conditions hereof, and (d) it (or the party to whom it relends the Borrowed Securities) is borrowing or will borrow the Borrowed Securities (except for Borrowed Securities that qualify as "exempted securities" under Regulation T of the Board of Governors of the Federal Reserve System) for the purpose purposes of making delivery of such securities in the case of short sales, failure to receive securities required to be delivered, or as otherwise permitted pursuant to Regulation T.
6.5 Borrower represents that the statements provided to Lender pursuant to Section 7 7.1 fairly represent its financial condition and the financial position of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio as of the date of such statements, and that there has been no material adverse change in its financial condition or the financial condition of any parent company or net capital ratio since that date that has not been disclosed in writing to Lender. Each request by Borrower for a Loan shall constitute a present representation: (a) that there has been no material adverse change in Borrower's financial condition or the financial condition of any parent company that has not been disclosed in writing to Lender, Lender since the date of the most recent statement furnished to Lender pursuant to Section 77.1; and (b) that, as of the date of such request for a Loan, Borrower, if the Borrower it is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities and Exchange Commission ("SEC") under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said Act.
6.6 To the extent that Xxxxxx Lender has provided Borrower with written statements identifying any of its the Clients as employee benefit plans subject to title I Title 1 of the Employees Employee Retirement Income Security Act of 1974 ("ERISA"), each request by Borrower for a Loan shall constitute a present representation that, except as disclosed in writing by Borrower to Lender, neither Borrower nor any Affiliate of Borrower is a "fiduciary" (within the meaning of Section 3(21) of ERISA) with respect to the assets of the Clients so identified that may be Borrowed Securities hereunder.
6.7 Borrower represents and warrants that it has an unqualified obligation to reimburse [name of Guarantor] for the full amount of any and all payments made or required to be made by [name of Guarantor] in compliance with the Bank Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed by a Canadian Bank
Appears in 1 contract
Samples: Securities Lending Authorization Agreement (Pimco Funds Multi Manager Series)
Representations of the Parties. The parties Parties hereby make the following representations and warranties, which shall continue during be repeated continuously until the term later of the termination of this Agreement or the repayment in full of all amounts owed to State Street under any Securities Loan hereunder;under this Agreement or any Collateral Documents:
6.1 9.1 Each party Party hereto represents and warrants that (a) it has the power and authority to execute and deliver this Agreement, Agreement and to enter into the Securities Loans contemplated hereby, hereby and to perform its obligations expressly set forth or contemplated hereunder; , (b) it has taken all necessary action to authorize such execution, delivery, delivery and performance; performance and (c) this Agreement constitutes a legal, valid, and binding obligation enforceable against it (in the case of Lender, in its capacity as trustee, custodian or agent of the Clients)such party.
6.2 Each party hereto 9.2 State Street represents and warrants (a) that it is a trust company duly organized and validly existing under the laws of The Commonwealth of Massachusetts and (b) that it has, or will have at the time of delivery, the authority to deliver the Borrowed Securities subject to the terms and conditions hereof.
9.3 The Borrower represents and warrants that (a) it is an entity duly organized and validly existing under the laws of the state of its organization, (b) it is in compliance with all laws, regulations and supervisory directives applicable to the Borrower, (c) it has, or will have at the time of delivery or identification or designation of any Securities Loan Collateral, the right to grant a security interest therein in accordance with the terms and conditions hereof, (d) it has the right to grant a security interest in the Custodial Collateral in accordance with the terms and conditions hereof and (e) it is borrowing the Borrowed Securities hereunder solely for the purposes of making delivery of such Borrowed Securities to cover short sales entered into by the Borrower.
9.4 Each Party hereto represents, warrants and covenants that the execution, delivery and performance by it of this Agreement and each Securities Loan hereunder will at all times comply with all applicable laws and regulations, including those of applicable securities regulatory and self-regulatory organizationsApplicable Law.
6.3 9.5 The Borrower further represents and warrants that the Borrower has not relied on State Street or any of its Affiliates for investment, financial, legal or other advice with respect to the Securities Loans and the Borrower is making its independent judgment or is relying upon External Managers or third party advisers with respect to the Securities Loans and neither State Street nor any of its Affiliates are acting as a fiduciary, advisor or agent for the Borrower with respect to any of the Securities Loans.
9.6 Each party Party hereto represents and warrants that it has made its own determination as to the tax treatment of any transfers made with respect to this Agreement and any dividends, remunerationdistributions, remuneration or other funds payments received or paid hereunder. If the Borrowed Securities consist of shares or other units of ownership of real property companies, trusts or other investment entities, the Borrower acknowledges that the tax treatment of any transfers of such Borrowed Securities and manufactured and other payments with respect to such Borrowed Securities may be materially and adversely different than transfers and payments with respect to loans of ordinary equity shares and the Borrower agrees that State Street shall be entitled to reimbursement for any costs or expenses suffered by State Street with respect to Securities Loans involving such Borrowed Securities.
6.4 9.7 The Borrower represents that any financial statements provided to State Street pursuant to Section 10.1 hereof provide a fair representation, in all material respects, of the financial condition of the Borrower as of the date thereof. Each request by the Borrower for a Securities Loan shall constitute a representation and warrants warranty at such time that (a) it is a corporation, partnership, or other entity duly organized and validly existing under federal law or the laws of the state of its organization, (b) it is a broker-dealer registered under the Securities Exchange Act of 1934 (the "Exchange Act"), a bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a government securities dealer or a government securities broker as defined in Section 400.3 of the regulations promulgated by the Department of the Treasury under Section 15C of the Exchange Act and registered or exempt from registration pursuant to said Act, (c) it has, or will have at the time of delivery of any Collateral, the right to grant a first security interest therein subject to the terms and conditions hereof, and (d) it (or the party to whom it relends the Borrowed Securities) is borrowing or will borrow the Borrowed Securities (except for Borrowed Securities that qualify as "exempted securities" under Regulation T of the Board of Governors of the Federal Reserve System) for the purpose of making delivery of such securities in the case of short sales, failure to receive securities required to be delivered, or as otherwise permitted pursuant to Regulation T.
6.5 Borrower represents that the statements provided to Lender pursuant to Section 7 fairly represent its financial condition and the financial position of any parent company and, if the Borrower is a broker or a government securities dealer or government securities broker, its net capital ratio as of the date of such statements, and that there has been no material adverse change in its financial condition or the financial condition of any parent company or net capital ratio since that date the Borrower that has not been disclosed in writing to Lender. Each request by Borrower for a Loan shall constitute a present representation: (a) that there has been no material adverse change in Borrower's financial condition or the financial condition of any parent company that has not been disclosed in writing to Lender, State Street since the date of the most recent statement furnished to Lender State Street pursuant to Section 7; 10.1 and (b) that, as of the date of such request for a Securities Loan, if the Borrower is a broker or a government securities dealer or government securities broker, it is in compliance with Rule 15c3-1 of the Securities all Applicable Law and Exchange Commission ("SEC") under the Exchange Act as modified, in the case of a Borrower which is a government securities broker or government securities dealer, by the regulations promulgated by the Department of the Treasury under Section 15C of said Actsatisfies any regulatory capital requirements applicable to such entity.
6.6 To 9.8 The Borrower also makes the extent that Xxxxxx has provided Borrower with written statements identifying any of its Clients as employee benefit plans subject to title I of the Employees Retirement Income Security Act of 1974 ("ERISA"), following additional representations and warranties and each request by Borrower for a Securities Loan shall constitute a present representation thatrenewal of these representations and warranties at and as of the date of such request.
(a) This Agreement and the Collateral Documents do not conflict with any agreement or other obligation by which the Borrower is bound.
(b) There is no lawsuit, judicial or administrative proceeding, tax claim or other dispute pending or, to the best of the Borrower’s knowledge, threatened against the Borrower which, if decided adversely against the Borrower, would materially impair the financial condition of the Borrower or impair its ability to repay the Securities Loan Obligations, except as have been disclosed in writing to State Street.
(c) The Borrower is not in default on any material obligation for borrowed money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation, except as have been disclosed in writing to State Street.
(d) There is no event which is an Event of Default under this Agreement.
(e) No approval, consent, exemption, authorization or other action by, or notice to or filing with, any governmental authority or any other Third Party is necessary or required in connection with (i) the execution, delivery or performance by, or enforcement against, the Borrower of this Agreement or any Collateral Document, (ii) the grant by the Borrower of the Liens granted by it pursuant to this Agreement and the Collateral Documents, (iii) the perfection or maintenance of the Liens created under this Agreement and the Collateral Documents, including the first priority nature thereof to the extent applicable or (iv) the exercise by State Street of its rights under this Agreement and the Collateral Documents or the remedies in respect of the Securities Loan Collateral or the Custodial Collateral, as applicable, pursuant to this Agreement or the Collateral Documents.
9.9 The Borrower is the legal and beneficial owner of the Securities Loan Collateral, free and clear of any liens, claims, encumbrances and transfer restrictions, other than prior claims of State Street arising under the Custodian Contract. Upon delivery of the Securities Loan Collateral in accordance with Section 4.1 or the identification and designation of any Custodial Collateral as Securities Loan Collateral, State Street will have, as security for the Securities Loan Obligations, a perfected first priority security interest in the Securities Loan Collateral.
9.10 The Borrower represents and warrants that, with respect to each Securities Loan, the Borrower has made or will make an independent determination that the terms of such Securities Loan, including but not limited to the compensation to be agreed upon pursuant to Section 8.1 or otherwise payable with respect to each Securities Loan, are fair and reasonable and acceptable to the Borrower, notwithstanding that more favorable terms may be available from a Third Party for borrowing Equivalent Securities. The Borrower further represents, warrants, acknowledges and agrees that with respect to any Securities Loans made by State Street to the Borrower hereunder, such Securities Loans are not subject to the Securities Lending Agreement and, notwithstanding any provisions of the Securities Lending Agreement to the contrary, State Street shall have no obligation, responsibility or liability to share with the Borrower any of the net income generated by the investment of Securities Loan Collateral in the form of cash delivered to State Street with respect to a Securities Loan, except for such amount as may be agreed upon in accordance with Section 8.1 hereof, or to pay or fund the agreed-upon fees, rebates or other amounts owed to State Street by the Borrower with respect to such Securities Loans.
9.11 The Borrower acknowledges and agrees that State Street in its capacity as the Lending Agent under the Securities Lending Agreement may loan securities of the Borrower to LenderState Street or its Affiliates and that State Street may also make Securities Loans to the Borrower pursuant to this Agreement (collectively, neither the “State Street Principal Transactions”). The Borrower nor agrees and acknowledges that (a) it consents to all such State Street Principal Transactions and waives any Affiliate conflicts of interest arising out of such State Street Principal Transactions and any requirement by State Street or its Affiliates to account to the Borrower for any profits, earnings or other compensation earned by any of them with respect to any of the State Street Principal Transactions, (b) the State Street Principal Transactions will not constitute a breach of any trust or any fiduciary or other duty owed by State Street or its Affiliates to the Borrower and (c) the Borrower has entered into the Securities Lending Agreement and into this Agreement as a result of the desire by the Borrower to increase the opportunity for the Borrower to lend securities and to borrow cash and securities on fair and reasonable terms.
9.12 The Borrower acknowledges that it has made an independent decision to appoint State Street as its agent and to permit State Street to enter into transactions on behalf of the Borrower, including at times with State Street or its Affiliates acting as principal counterparties, pursuant to Section 3.9, Section 4.6 and Section 5.4 of this Agreement in order to obtain the benefit of the services provided hereunder by State Street and the benefit of such transactions without such services and transactions being considered a breach of any fiduciary or other duty to the Borrower by State Street or any of its Affiliates.
9.13 The Borrower represents and warrants that either (a) it is not (i) an employee benefit plan subject to Title I of ERISA, (ii) a "fiduciary" plan subject to Section 4975 of the Code or (iii) otherwise deemed to be “plan assets” subject to Title I of ERISA or Section 4975 of the Code or (b) the entry into, maintenance and performance of this Agreement and the transactions contemplated thereby do not and will not constitute a non-exempt prohibited transaction within the meaning of Section 3(21406 of ERISA or Section 4975 of the Code by reason of the availability of Section 408(b)(17) of ERISA) with respect to the assets , Department of the Clients so identified that may be Borrowed Securities hereunderLabor Prohibited Transaction Exemption 84-14, Prohibited Transaction Exemption 96-23, Prohibited Transaction Exemption 91-38 or another statutory, class or individual exemption.
6.7 9.14 The Borrower represents and warrants that it has is (i) a “qualified investor” within the meaning of Section 3(a)(54)(A) of the Securities Exchange Act of 1934, as amended; or (ii) an unqualified obligation employee benefit plan that owns and invests on a discretionary basis not less than US $25,000,000 in investments. The Borrower agrees to reimburse [name of Guarantor] for the full amount notify State Street immediately of any and all payments made or required to be made by [name of Guarantor] changes in compliance with the Bank Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed by a Canadian Bankinformation set forth in this Section 9.14.
Appears in 1 contract
Samples: Securities Lending and Services Agreement (Blackstone Alternative Investment Funds)