Securities Lending Agreement - JPMCB New York - General June 2012 Version
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Table of contents
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1.
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INTENTION OF THE PARTIES; DEFINITIONS
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1
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1.1
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Intention of the Parties
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1
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1.2
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Definitions
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1
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2.
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THE SECURITIES LENDING SERVICES
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4
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2.1
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Appointment; Authority
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4
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2.2
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Loans
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5
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2.3
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Borrowers
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6
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2.4
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Receipt of Collateral; Collateral Substitution
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6
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2.5
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Mark to Market Procedures
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7
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2.6
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Investment of Cash Collateral
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7
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2.7
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Distributions
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8
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2.8
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Voting Rights; Dividend Reinvestment Plans
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9
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2.9
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Sale of a Security on Loan
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9
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2.10
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Recordkeeping; Access to X.X. Xxxxxx’x Records
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10
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2.11
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Statements of Account
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10
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2.12
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Notifications
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10
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2.13
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Change Control
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10
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3.
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OBLIGATIONS OF X.X. XXXXXX IN THE CASE OF BORROWER DEFAULT
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11
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3.1
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Default by Borrower with respect to Securities on Loan
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11
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3.2
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Indemnification of Lender in Respect of Securities
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11
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3.3
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Assignment of Rights
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12
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4.
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INSTRUCTIONS
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12
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4.1
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Acting on Instructions; Method of Instruction and Unclear Instructions
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12
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4.2
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Verification and Security Procedures
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13
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4.3
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Instructions; Contrary to Law/Market Practice
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13
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4.4
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Cut-Off Times
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13
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4.5
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Electronic Access
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13
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5.
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FEES, EXPENSES AND OTHER AMOUNTS OWING TO X.X. XXXXXX
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13
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5.1
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Fees and Expenses
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13
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5.2
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Overdrafts
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14
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5.3
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X.X. Xxxxxx’x Right Over Securities; Set-off
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15
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6.
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ADDITIONAL PROVISIONS RELATING TO THE PARTIES
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15
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6.1
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Representations of Xxxxxx and X.X. Xxxxxx
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15
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6.2
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Lender to Provide Certain Information to X.X. Xxxxxx
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16
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7.
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WHEN X.X. XXXXXX IS LIABLE TO LENDER
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16
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7.1
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Standard of Care; Liability
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16
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7.2
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Force Majeure
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17
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7.3
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X.X. Xxxxxx May Consult With Counsel
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18
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7.4
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X.X. Xxxxxx Provides Diverse Financial Services and May Generate Profits as a Result
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18
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7.5
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Responsibility for Certain Third Parties
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18
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8.
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TAXATION
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19
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8.1
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Tax Filings
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19
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8.2
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Tax Treatment
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19
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9.
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TERMINATION
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19
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9.1
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Termination
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19
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9.2
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Exit Procedure
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20
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10.
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MISCELLANEOUS
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20
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10.1
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Notifications
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20
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10.2
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Successors and Assigns
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20
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10.3
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Interpretation
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20
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10.4
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Entire Agreement
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21
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10.5
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Insurance
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21
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10.6
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Governing Law and Jurisdiction
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21
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10.7
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Severability; Waiver; and Survival
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21
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10.8
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Confidentiality
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22
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10.9
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Counterparts
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22
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10.10
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No Third Party Beneficiaries
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23
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SCHEDULE 1 Investment Guidelines (Non-ERISA)
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24
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SCHEDULE 2 Approved Borrowers
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23
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SCHEDULE 3 Eligible Collateral
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24
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SCHEDULE 4 Lender Accounts and Markets
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25
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SCHEDULE 5 Persons Authorized To Give Instructions
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26
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SCHEDULE 6A Form of Master Securities Lending Agreement (US Borrowers)
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27
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SCHEDULE 6B Form of Master Securities Lending Agreement (non-US Borrowers)
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28
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SCHEDULE 7 Cut-off Times
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29
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SCHEDULE 8 Electronic Access
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30
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This Agreement, dated May 8, 2013, is between JPMORGAN CHASE BANK, NATIONAL ASSOCIATION (“X.X. Xxxxxx”), with a place of business at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000; and ASPIRIANT GLOBAL EQUITY TRUST ON BEHALF OF EACH SERIES OR FUND LISTED ON APPENDIX A (“Lender”) with a place of business at 00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
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1.
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INTENTION OF THE PARTIES; DEFINITIONS
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1.1
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Intention of the Parties
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This Agreement sets out the terms on which X.X. Xxxxxx will be providing securities lending services to Lender. X.X. Xxxxxx will be responsible for the performance of only those duties set forth in this Agreement.
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1.2
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Definitions
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As used herein, the following terms have the meaning hereinafter stated.
“Affiliate” with respect to a party means an entity controlling, controlled by, or under common control with, that party.
“Applicable Law” means any applicable statute, treaty, rule, regulation or common law and any applicable decree, injunction, judgment, order, formal interpretation or ruling issued by a court or governmental entity.
“Authorized Investment” means any type of instrument, security, participation or other property in which Cash Collateral may be invested or reinvested, as described in Section 2.6 of this Agreement and Schedule 1 to this Agreement (and as that Schedule may be amended from time to time by written agreement of the parties).
“Authorized Person” means any person who has been designated by written notice from Lender in the form of Schedule 5 to this Agreement to act on behalf of Lender under this Agreement. Such persons will continue to be Authorized Persons until such time as X.X. Xxxxxx receives and has had reasonable time to act upon Instructions from Lender (or its agent) that any such person is no longer an Authorized Person.
“Borrower” means an entity listed on Schedule 2 to this Agreement other than an entity which X.X. Xxxxxx shall have been instructed to delete from such list in accordance with Instructions and as such Schedule may be amended in accordance with Section 2.3 of this Agreement.
“Business Day” shall have the meaning assigned in the applicable MSLA, including any applicable Addendum or Exhibit to the applicable MSLA and shall, include, as applicable, a New York Business Day and a Foreign Business Day as defined in the applicable MSLA.
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“Cash Collateral” means those currencies permitted under Schedule 3 to be accepted as Cash Collateral as may be pledged by a Borrower in connection with a particular Loan.
“Collateral” means the types of collateral acceptable to Lender as set forth in Schedule 3 to this Agreement, together with Cash Collateral.
“Collateral Account” means, as the case may be, an account maintained by X.X. Xxxxxx with itself, with any Securities Depository or with any Triparty Institution and designated as a Collateral Account for the purpose of holding Collateral, Authorized Investments, or proceeds of any of them (as the case may be) in connection with Loans under this Agreement.
“Collateral Requirement” with respect to a given Security shall be an amount equal to the then applicable percentage of the Market Value of the applicable Security as set forth in Appendix A to Schedule 3, as that Appendix may be amended by X.X. Xxxxxx from time to time on notice to Lender.
“Confidential Information” means and includes all non public information concerning Lender, the Lending Accounts or the Collateral Accounts which X.X. Xxxxxx receives in the course of providing services under this Agreement. Nevertheless, the term Confidential Information shall not include information which is or becomes available to the general public by means other than X.X. Xxxxxx’x breach of the terms of this Agreement or information which X.X. Xxxxxx obtains on a non confidential basis from a person who is not known to be subject to any obligation of confidence to any person with respect to that information.
“Custody Agreement” means the agreement dated as of September 6, 2012, between X.X. Xxxxxx and Xxxxxx, which provides, interalia, for the safekeeping of Securities received by X.X. Xxxxxx from time to time on behalf of Xxxxxx, as that agreement may be amended from time to time.
“Cut-off Time” has the meaning set forth in Section 4.4 of this Agreement.
“Distributions” means all interest, dividends and other distributions (including, but not limited to, payments made by the depositary in connection with American Depositary Receipts and Global Depositary Receipts) made by the issuer with respect to Securities subject to Loans.
“Dollars” means U.S. dollars.
“Event of Default” has the meaning set forth in the applicable MSLA.
“Instruction” means an instruction that has been verified in accordance with a Security Procedure or, if no Security Procedure is applicable, which X.X. Xxxxxx believes in good faith to have been given by an Authorized Person in the manner specified next to their name in the relevant Schedule.
“X.X. Xxxxxx Indemnitees” means X.X. Xxxxxx and its nominees, directors, officers, employees and agents.
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“Lending Account” means each of the Securities Accounts set forth in Schedule 4, as that Schedule may be modified from time to time by agreement of the parties.
“Liabilities” means any liabilities, losses, claims, costs, damages, penalties, fines, obligations, or expenses of any kind whatsoever (including, without limitation, reasonable attorneys’, accountants’, consultants’ or experts’ fees and disbursements).
“Loan” means a loan of Securities under this Agreement and under the applicable MSLA.
“Loan Fee” means the amount payable by a Borrower to X.X. Xxxxxx under the applicable MSLA in connection with Loans collateralized other than by Cash Collateral.
“Market Value” means the value in accordance with the applicable MSLA as reasonably determined by X.X. Xxxxxx, including the computation of Dollar equivalents where Securities on Loan and/or Collateral (and proceeds of Collateral) are denominated in a currency other than Dollars; and in the case of fixed income Securities, include any accrued but unpaid interest thereon. In the case of Cash Collateral, “Market Value” means the value of the cash delivered by Borrower. “Market Value” shall be determined as of the close of trading on the preceding Business Day.
“MSLA” means a master securities lending agreement or securities borrowing agreement between X.X. Xxxxxx and a Borrower, under which X.X. Xxxxxx lends Securities on behalf of its customers (including Lender) from time to time. A copy of X.X. Xxxxxx’x standard forms of MSLA, including (as applicable) the international addendum to the MSLA, are annexed to this Agreement (i) as Schedule 6A in the case of Borrowers located in the United States, and (ii) as Schedule 6B in the case of Borrowers located outside the United States. (The location of each Borrower is indicated in Schedule 2.)
“Rebate” means the amount payable by X.X. Xxxxxx on behalf of Xxxxxx to a Borrower (or, in the case of a negative rebate, the amount payable by Borrower to X.X. Xxxxxx on behalf of Lender) in connection with Loans collateralized by Cash Collateral, which shall be a percentage of the Cash Collateral as agreed by Borrower and X.X. Xxxxxx.
“Return Date” has the meaning assigned in Section 3.2(a) of this Agreement.
“Securities” means shares, stocks, debentures, bonds, notes or other like obligations, whether issued in certificated or uncertificated form, and any certificates, receipts, warrants or other instruments representing rights to receive, purchase or subscribe for the same that are commonly traded or dealt in on securities exchanges or financial markets or other obligations of an issuer, or shares, participations and interests in an issuer recognized in the country in which it is issued or dealt in as a medium for investment.
“Securities Account” means each of the securities account established and maintained by X.X. Xxxxxx on behalf of Lender under the Custody Agreement.
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“Securities Depository” means any securities depository,dematerialized book entry system or similar system for the central handling of Securities, whether or not acting in that capacity. The term Securities Depository shall include any subcustodian network utilized by the Securities Depository.
“Security Procedure” means security procedures to be followed by Lender upon the issuance of an Instruction and/or by X.X. Xxxxxx upon the receipt of an Instruction, so as to enable X.X. Xxxxxx to verify that such Instruction is authorized, as set forth in service level documentation in effect from time to time between the parties with respect to the services set forth in the Custody Agreement, or as otherwise agreed in writing by the parties. A Security Procedure may, without limitation, involve the use of algorithms, codes, passwords, encryption and telephone call backs. Xxxxxx acknowledges that Security Procedures are designed to verify the authenticity of, and not detect errors in, Instructions. For the avoidance of doubt, the parties agree that a SWIFT message issued in the name of Lender through any third party utility agreed upon by the parties as being a method for providing Instructions and authenticated in accordance with that utility’s customary procedures, shall be deemed to be an authorized Instruction.
“Term Loan” has the meaning set forth in Section 2.2(c) of this Agreement.
“Tri-party Institution” means a financial institution (which may be X.X. Xxxxxx acting in a separate capacity) with which X.X. Xxxxxx shall have entered a Tri-party Agreement.
“Tri-party Agreement” means an agreement among X.X. Xxxxxx, a financial institution acting as tri-party custodian, and a particular Borrower providing, among other things, for the holding of Collateral in a Collateral Account at the financial institution in X.X. Xxxxxx’x name on behalf of X.X. Xxxxxx’x lending customers and for the substitution of Collateral.
All terms in the singular will have the same meaning in the plural unless the context otherwise provides and vice versa.
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2.
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THE SECURITIES LENDING SERVICES
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2.1
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Appointment; Authority
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| (a) | Lender hereby appoints X.X. Xxxxxx as its agent to lend Securities in each of the Lending Accounts on Xxxxxx’s behalf to Borrowers from time to time in accordance with the terms of this Agreement and on such terms and conditions and at such times as X.X. Xxxxxx shall determine. X.X. Xxxxxx hereby accepts appointment as such agent. |
| (b) | Xxxxxx hereby authorizes and empowers X.X. Xxxxxx to execute in Xxxxxx’s name and on its behalf and at its risk all agreements and documents as may be necessary to carry out any of the powers herein granted to X.X. Xxxxxx. In this regard, Xxxxxx hereby acknowledges receipt of the forms of MSLA and authorizes X.X. Xxxxxx to lend Securities in the Lending Accounts to Borrowers under agreements substantially in the forms of the MSLA; it being understood and agreed, however, that X.X. Xxxxxx shall notify Lender of any material change to the MSLA entered into with any Borrower. X.X. Xxxxxx may exercise all rights and powers provided under any MSLA as may be incidental to that MSLA. |
4
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2.2
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Loans
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| (a) | From time to time, X.X. Xxxxxx may lend to Borrowers Securities held in the Lending Accounts and shall deliver such Securities against receipt of Collateral in accordance with the applicable MSLA. All Securities of Lender held by X.X. Xxxxxx that are issued, settled or traded in the markets listed on Schedule 4 to this Agreement may be lent to Borrowers from time to time without the consent of any Authorized Person. All Loans shall be made on a fully disclosed basis. X.X. Xxxxxx may suspend lending activity in one or more markets from time to time if it determines that lending in those markets is impracticable or uneconomical. |
| (b) | X.X. Xxxxxx shall seek to assure that Xxxxxx receives a fair allocation of lending opportunities vis-à-vis other lenders, taking into account the demand for and availability of Securities, types of Collateral, eligibility of Borrowers, Borrower’s requested rebate rate, limitations on investments of Cash Collateral, tax treatment, and similar commercial factors. |
| (c) | Loans shall generally be terminable on demand. With the prior approval of Xxxxxx, however, Loans may be made on the basis of a specified termination date (each a “Term Loan”), with or without providing for the right of Lender to terminate or substitute equivalent Securities. |
| (d) | X.X. Xxxxxx shall terminate any Loan of Securities to a Borrower as soon as practicable after: (i) receipt by X.X. Xxxxxx of a notice of termination of the respective MSLA by the Borrower; (ii) receipt by X.X. Xxxxxx of Instructions directing it to terminate a Loan; (iii) receipt by X.X. Xxxxxx of Instructions instructing it to delete from Schedule 2 the Borrower to which such Loan was made; (iv) receipt by X.X. Xxxxxx of Instructions advising that the Security subject to a Loan is no longer subject to the representations contained in Section 6.1 of this Agreement; (v) receipt by X.X. Xxxxxx of notice advising that an Event of Default has occurred and is continuing beyond any grace period that may be afforded by X.X. Xxxxxx; (vi) X.X. Xxxxxx elects, in its sole discretion, to terminate a Loan other than a Term Loan; or (vii) termination of this Agreement. Termination of a Term Loan prior to its anticipated termination date by either Lender or Borrower may result in the terminating party having to pay the non-terminating party damages based on the cost of obtaining a replacement loan. In the event of Xxxxxxxx’s failure to return the applicable Securities upon termination of a Loan, X.X. Xxxxxx shall take the steps specified in Section 3.1 of this Agreement. |
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| (e) | Lender shall not engage in any security lending activity with regard to Securities held in any Lending Account during the term of this Agreement, except for Loans made by X.X. Xxxxxx as lending agent under this Agreement. |
| (f) | The market value of loaned securities will not exceed 33 1/3% of the value of the Lender’s total assets available for loan in Xxxxxx’s custody accounts at X.X. Xxxxxx. If the market value of loaned securities exceeds this percentage on any day, X.X. Xxxxxx shall recall outstanding loans in order to reduce the loaned securities by the amount of such excess. |
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2.3
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Borrowers
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| (a) | Securities may be lent to any Borrower listed in Schedule 2, as that Schedule may be updated from time to time upon written notice by X.X. Xxxxxx to add new Borrowers and to delete entities that have ceased to be potential Borrowers. If Xxxxxx notifies X.X. Xxxxxx in writing within five business days from the date of any such notice that it objects to a potential Borrower, no Loans of Securities shall be made to such potential Borrower. If Lender does not so object within such five business day period, each potential Borrower notified to Lender by X.X. Xxxxxx shall be deemed acceptable to Lender. Lender may at any time provide Instructions to X.X. Xxxxxx to delete a Borrower from Schedule 2. Promptly following receipt of those Instructions X.X. Xxxxxx will cease making Loans to that Borrower and promptly take the steps set forth in Section 2.2(d). X.X. Xxxxxx shall have the right to decline to make any Loans to any Borrower and to discontinue lending to any Borrower in its sole discretion and without notice to Lender. |
| (b) | X.X. Xxxxxx may assume (unless its personnel directly responsible for the performance of the services under this Agreement have actual knowledge to the contrary) that any representations made by a Borrower in connection with any Loan are true, that no event which is or may become an Event of Default has occurred and that a Borrower has complied with its obligations under the applicable MSLA. |
| (c) | X.X. Xxxxxx shall have no responsibility for the accuracy or completeness of any information supplied by any Borrower. |
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2.4
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Receipt of Collateral; Collateral Substitution
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For each Loan, X.X. Xxxxxx or a Tri-party Institution shall receive and hold all Collateral required by the applicable MSLA in a Collateral Account. A given Loan may be collateralized by more than one type of Collateral. X.X. Xxxxxx shall credit, or where applicable shall have a Tri-party Institution credit, all Collateral, Cash Collateral investments and proceeds to a Collateral Account and X.X. Xxxxxx shall mark its books and records to identify Xxxxxx’s interest therein. In this regard, X.X. Xxxxxx shall segregate assets held in each Collateral Account maintained from X.X. Xxxxxx’x proprietary assets. X.X. Xxxxxx shall accept substitutions of Collateral in accordance with the applicable MSLA or Tri-party Agreement, and shall credit, or where applicable shall have a Tri-party Institution credit, all such substitutions to a Collateral Account.
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2.5
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Mark to Market Procedures
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| (a) | X.X. Xxxxxx shall require initial Collateral for a Loan in an amount determined by applying the then applicable Collateral Requirement to the Market Value of the Security that is the subject of the Loan. |
| (b) | If the Market Value of the Collateral held by X.X. Xxxxxx on behalf of Lender for a Loan on any Business Day is less than the collateral call threshold amount set forth on Appendix A to Schedule 3, X.X. Xxxxxx shall demand on behalf of Lender that Borrower, deliver additional Collateral in accordance with the applicable MSLA. |
| (c) | X.X. Xxxxxx is authorized to return excess Collateral to the Borrower upon demand, in accordance with the terms of the applicable MSLA. |
| (d) | X.X. Xxxxxx may modify the Collateral procedures set forth on Appendix A to Schedule 3 from to time to time based on general market conditions (including volatility of Securities on Loan and of Securities Collateral), the Market Value of Securities on Loan to a given Borrower, and in accordance with general market practice and regulatory requirements. X.X. Xxxxxx shall promptly notify Lender of material revisions to the Collateral Requirement and the foregoing procedures. |
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2.6
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Investment of Cash Collateral
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| (a) | X.X. Xxxxxx is hereby authorized to invest and (subject to Section 2.6(c)) reinvest Cash Collateral in accordance with the investment guidelines annexed to this Agreement as Schedule 1. Any Cash Collateral investment which is an Authorized Investment is made for the account of, and at the sole risk of, Lender. X.X. Xxxxxx is authorized to buy or sell Cash Collateral investments through bulk trades in which its other customers participate. Cash Collateral and additions to Cash Collateral received after the market closes shall not be invested until the next business day. |
| (b) | X.X. Xxxxxx may from time to time advance to Lender its share of accrued earnings from Cash Collateral. By the same token, except as may be expressly set forth in the investment guidelines, earnings received from Cash Collateral shall not be invested on behalf of Lender pending distribution under this Agreement (e.g., as Rebates to Borrowers and as tending income under Section 5.1 of this Agreement) and, therefore, no income shall be paid thereon to Lender. X.X. Xxxxxx anticipates earning interest on such earnings pending such distribution in an amount approximately equal to the fed funds rate in effect from time to time. |
| (c) | X.X. Xxxxxx may, in its sole discretion, liquidate any Cash Collateral investment and credit the net proceeds to the Lender’s cash account. |
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| (d) | If: (i) a loss is realized on a Cash Collateral investment or (ii) X.X.Xxxxxx determines that a Cash Collateral investment either is unlikely to be redeemed in accordance with its terms (as in effect at the time such Cash Collateral investment was acquired) or will need to be sold at a loss in order to raise cash to return to a Borrower upon the present or future maturity of a Loan or (iii) X.X. Xxxxxx otherwise reasonably requires the replenishment of Cash Collateral, X.X. Xxxxxx may require that Lender transfer to it cash in an amount at least equal to the difference between the amortized cost and the fair market value of the applicable Cash Collateral investment (as determined by X.X. Xxxxxx in its reasonable discretion)., Lender shall promptly comply with any such request. |
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2.7
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Distributions
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| (a) | X.X. Xxxxxx shall credit Xxxxxx’s cash account on payable date (subject to and in accordance with X.X. Xxxxxx’x AutocreditTM policies) with the amount of all cash Distributions (but for purposes of this Section 2.7(a), the term “cash Distributions” shall not include any principal payment, whether paid upon the maturity of any debt Security or prior to its maturity) with respect to Securities on Loan over their record date that Lender would have received under the Custody Agreement had such Securities not been on Loan over record date. Xxxxxx shall promptly return any amount credited to the cash account upon oral or written notification from X.X. Xxxxxx that: (i) such amount has not been paid by the issuer or the paying agent of the Securities (as applicable) in the ordinary course of business or (ii) such amount was incorrectly credited. If Lender does not promptly return any amount upon such notification, X.X. Xxxxxx shall be entitled, upon oral or written notification to Lender, to reverse the applicable credit by debiting Lender’s cash account for the amount previously credited. |
| (b) | The following procedures shall apply to Distributions which are not cash Distributions (“non-cash Distributions”): |
| (i) | Any non-cash Distribution which is in the nature of a stock split or a stock dividend shall at the option of X.X. Xxxxxx: (A) be added to the existing Loan to which that Distribution relates as of the date that non-cash Distribution is payable and shall be subject to the provisions of this Agreement and the applicable MSLA ; or (B) be delivered by Borrower to X.X. Xxxxxx and X.X. Xxxxxx shall credit that non-cash Distribution to the applicable Lending Account. |
| (ii) | Any non-cash Distribution which is in the nature of warrants or rights to purchase shares made with respect to any Securities on Loan shall be deemed to be a new Loan made by Lender to Borrower (and shall be considered to constitute Securities on Loan) as of the date that non-cash Distribution is payable and shall be subject to the provisions of this Agreement; provided that Lender may give X.X. Xxxxxx Instructions, prior to the applicable Cutoff Time directing it to request that Borrower deliver that non-cash Distribution to X.X. Xxxxxx under the applicable MSLA, in which case X.X. Xxxxxx shall credit that non-cash Distribution to the applicable Lending Account. If Lender wishes to exercise any such warrants or rights while they are on Loan, Lender shall instruct X.X. Xxxxxx prior to the applicable Cut-Off Time to direct the Borrower to deliver the applicable Security or other property to the applicable Lending Account in exchange for the price specified in the warrant or right. |
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| (iii) | If Lender requests that X.X. Xxxxxx instruct Borrower to deliver a non-cash Distribution on its payable date, and Borrower fails so to deliver the non-cash Distribution and any reasonable and customary grace period has expired, X.X. Xxxxxx shall at its option, credit such non-cash Distribution to the applicable Lending Account, or credit to Lender’s cash account an amount equivalent to the Market Value of such non-cash distribution as of the close of business on the day prior to the credit date. In addition, the assignment provisions and corresponding rights and obligations set forth in Article 3 shall apply. |
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2.8
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Voting Rights; Dividend Reinvestment Plans
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| (a) | During the term of any Loan, X.X. Xxxxxx shall permit the Securities on Loan to be transferred into the name of Borrower. Securities on loan shall not ordinarily be available to Lender for voting white they are on loan on the applicable Record Date. Lender shall be entitled to vote proxies with respect to Securities that are eligible for Loan (but not actually on Loan) as of the applicable record date for those Securities, except in those markets where it is not practical or permissible to do so. |
| (b) | Lender acknowledges that it shall not be entitled to participate in any dividend reinvestment program with respect to Securities that are eligible for Loan (whether or not actually on Loan) as of the applicable record date for those Securities. |
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2.9
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Sale of a Security on Loan
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Lender shall advise X.X. Xxxxxx of the sale of Securities on Loan no later than the applicable Cut-off Time and Lender shall bear the risk of any Liabilities attributable to its failure to provide notice prior to the applicable Cut-off Time. X.X. Xxxxxx shall promptly give the Borrower notice of termination of the applicable Loan (other than a Term Loan). If the Borrower fails to return Securities in a timely fashion, X.X. Xxxxxx shall promptly take action as provided in Section 3.1 of this Agreement. Xxxxxx acknowledges, however, that in the case of a Borrower’s failure to return Securities where some, but not all, of the Securities being sold are subject to the applicable Loan, neither Borrower nor X.X. Xxxxxx will be liable for any Liability associated with fails occurring in cases where partial settlement of the sate is not permitted or Lender or its agent has withheld any consent necessary for a partial settlement.
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2.10
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Recordkeeping; Access to X.X. Xxxxxx’x Records
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| (a) | X.X. Xxxxxx shall establish and maintain those records as are reasonably necessary to account for Loans that are made and the income derived from the Loans. A party shall comply with reasonable requests of the other party for information necessary to the requester’s performance of its duties under this Agreement. |
| (b) | X.X. Xxxxxx will allow Xxxxxx’s auditors and independent public accountants reasonable access to the records of X.X. Xxxxxx relating to Loans and Collateral as is required in connection with their examination of books and records pertaining to Xxxxxx’s affairs. |
| (c) | X.X. Xxxxxx will, upon reasonable written notice, allow Lender reasonable access during normal working hours to the records of X.X. Xxxxxx relating to the services provided under this Agreement. |
| (d) | X.X. Xxxxxx may impose reasonable restrictions on the number of individuals allowed access, the frequency and length of the access, and the scope of the records made available. Lender shall reimburse X.X. Xxxxxx for the cost of copying, collating and researching archived information at X.X. Xxxxxx’x regular hourly rate. |
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2.11
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Statements of Account
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X.X. Xxxxxx shall provide Lender with periodic statements (as agreed by the parties from time to time) describing the Loans made, the investments made with Cash Collateral, and the income derived from Loans, during the period covered by the statement. All prices included in such statements shall either be based on amortized cost or be indicative fair market value as reported by third party vendors. Lender will review its statement of account and give X.X. Xxxxxx written notice of any suspected error or omission within a reasonable time of the date of the relevant suspected error or omission.
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2.12
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Notifications
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If Xxxxxx has agreed to access statements and information concerning the services provided under this Agreement through X.X. Xxxxxx’x website, X.X. Xxxxxx may make any notifications required under this Agreement by posting it on the website.
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2.13
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Change Control
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| (a) | If either party wishes to propose any amendment or modification to, or variation of, the services under this Agreement (including the scope or details of the services) (a “Change”) then it shall notify the other party of that fact by sending a request (a “Change Request”) to the party, specifying in as much detail as is reasonably practicable the nature of the Change. X.X. Xxxxxx shall maintain a log of all Change Requests. |
| (b) | Promptly following the receipt of a Change Request the parties shall agree whether to implement the Change Request, whether the Fees should be modified in light of the change to the services under this Agreement, and the basis upon which X.X. Xxxxxx will be compensated for implementing the Change Request. |
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3.
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OBLIGATIONS OF X.X. XXXXXX IN THE CASE OF BORROWER DEFAULT
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3.1
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Default by Borrower with respect to Securities on Loan
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If any Borrower fails to return any Securities on Loan when due under the applicable MSLA, X.X. Xxxxxx shall take action as appropriate in accordance with general market practice and X.X. Xxxxxx’x reasonable judgment, including, but not necessarily limited to, claiming compensation from that Borrower on behalf of Lender in the event a trade executed by Xxxxxx fails on account of that Xxxxxxxx’s failure to have returned Securities on Loan in a timely manner or, where X.X. Xxxxxx deems it necessary, other action as may be permitted by the applicable MSLA.
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3.2
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Indemnification of Lender in Respect of Securities
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| (a) | In addition to the actions described in Section 3.1 and after the expiration of any reasonable and customary grace period except in cases relating to the solvency of Borrower, if any Borrower with respect to any Loan effected under this Agreement fails to return any Securities on Loan when due under the applicable MSLA which is the date an Event of Default shall have occurred under the applicable MSLA (the “Return Date”), then X.X. Xxxxxx shall, at its expense, but subject to Section 3.2(b) of this Agreement, deposit replacement Securities of the same issue, type, class and series to the applicable Lending Account, as soon as practicable. If X.X. Xxxxxx is unable to obtain replacement Securities or to the extent odd lot purchases of replacement Securities would be required, X.X. Xxxxxx shall, at its expense, but subject to Section 3.2(b) credit Xxxxxx’s cash account in Dollars with the Market Value of such Securities on Loan on the credit date. |
| (b) | Notwithstanding any other provision of this Section 3.2, X.X. Xxxxxx’x obligation to credit Xxxxxx’s cash account with cash or the Lending Account with replacement Securities shall be reduced by an amount equal to the extent of any shortfall in the Collateral which is attributable to one or more of the following: |
| (i) | a decrease in the market value of Authorized Investments; |
| (ii) | the act or omission or insolvency of any Securities Depository or Tri-party Institution, other than X.X. Xxxxxx or any of its Affiliates in the case of insolvency of a Tri-party Institution; or |
| (iii) | X.X. Xxxxxx’x reliance on incorrect prices of the lent Securities or Collateral provided by a pricing vendor as described in Section 7.5 of this Agreement, provided, however, that X.X. Xxxxxx shall have met its standard of care with respect to reviewing the reasonableness of any such price. |
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3.3
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Application of Collateral/Assignment of Rights
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| (a) | In the case of an Event of Default, any Collateral and any proceeds of Collateral or Cash Collateral investments shall be applied as follows: first to reimburse X.X. Xxxxxx for any and all amounts expended in complying with its obligations under Section 3.2, second to reimburse X.X. Xxxxxx for any amounts advanced by it under Section 2.7 or otherwise advanced by X.X. Xxxxxx on behalf of the affected Borrower, and third to any other amounts owed by the affected Borrower to Lender under the applicable MSLA . |
| (b) | X.X. Xxxxxx shall be subrogated to and Lender shall assign and be deemed to have assigned to X.X. Xxxxxx, all of its rights in, to and against Borrower (and any guarantor of this Agreement) (i) in respect of such Loan to the extent of any payment or purchase made by X.X. Xxxxxx under Sections 2.7 or 3.2 (or otherwise made to Lender by X.X. Xxxxxx on behalf of the affected Borrower under the applicable MSLA), and (ii) subject to Lender’s rights under Subsection 3.3(a), any Collateral pledged by Borrower in respect of such Loan, and all proceeds of such Collateral, including any Collateral and proceeds remaining after the application process set forth in Subsection 3.3(a). If Xxxxxx receives or is credited with any payment, benefit or value from or on behalf of Borrower in respect of rights to which X.X. Xxxxxx is subrogated as provided herein, Lender shall promptly remit or pay to X.X. Xxxxxx the same (or its Dollar equivalent). |
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4.
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INSTRUCTIONS
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| 4.1 | Acting on Instructions; Method of Instruction and Unclear Instructions |
| (x) | Xxxxxx authorizes X.X. Xxxxxx to accept and act upon any Instructions received by it without inquiry. Xxxxxx will indemnify X.X. Xxxxxx Xxxxxxxxxxx against, and hold each of them harmless from, any Liabilities that may be imposed on, incurred by, or asserted against X.X. Xxxxxx Indemnitees as a result of any action or omission taken in accordance with any Instruction. |
| (b) | Lender will where reasonably practicable use automated and electronic methods of sending Instructions. |
| (c) | X.X. Xxxxxx shall promptly notify an Authorized Person if X.X. Xxxxxx determines that an Instruction does not contain all information reasonably necessary for X.X. Xxxxxx to carry out the Instruction. X.X. Xxxxxx may decline to act upon an Instruction if it does not receive clarification or confirmation satisfactory to it. X.X. Xxxxxx will not be liable for any loss arising from any reasonable delay in carrying out any such Instruction while it seeks information, clarification or confirmation or in declining to act upon any Instruction for which it does not receive clarification satisfactory to it. |
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| (d) | Unless otherwise expressly provided, all Instructions shall continue in full force and effect until cancelled or superseded. |
| 4.2 | Verification and Security Procedures |
| (a) | X.X. Xxxxxx and Lender shall comply with any applicable Security Procedures with respect to the delivery or authentication of Instructions and shall ensure that any codes, passwords or similar devices are reasonably safeguarded. |
| (b) | Either party may record any of their telephone communications. |
| 4.3 | Instructions; Contrary to Law/Market Practice |
X.X. Xxxxxx need not act upon Instructions which it reasonably believes to be contrary to law, regulation or market practice, but X.X. Xxxxxx will be under no duty to investigate whether any Instructions comply with Applicable Law or market practice. In the event X.X. Xxxxxx does not act upon such Instructions, X.X. Xxxxxx will notify Lender where reasonably practicable.
| 4.4 | Cut-Off Times |
X.X. Xxxxxx has established deadlines for receipt of Instructions (each a “Cut-off Time”). If X.X. Xxxxxx receives an Instruction after its established Cut-off Time, X.X. Xxxxxx will attempt to act upon the Instruction on the day requested if X.X. Xxxxxx deems it practicable to do so or otherwise as soon as practicable after that day. X.X. Xxxxxx’x current Cut-off Times are set forth in Schedule 7 to this Agreement which may be updated from time to time upon notice from X.X. Xxxxxx.
| 4.5 | Electronic Access |
Access by Lender to certain applications or products of X.X. Xxxxxx via X.X. Xxxxxx’x web site or otherwise shall be governed by this Agreement and the terms and conditions set forth in Schedule 8.
| 5. | FEES, EXPENSES AND OTHER AMOUNTS OWING TO X.X. Xxxxxx |
| 5.1 | Fees and Expenses |
| (a) | In connection with each Loan under this Agreement, Lender hereby authorizes X.X. Xxxxxx to retain a fee in an amount equal to 30 % of the sum of (i) earnings derived from Cash Collateral investments (as adjusted for any Rebate paid or received by X.X. Xxxxxx); (ii) any fee, paid or payable by Borrower with respect to Loans (including any Loan Fee but excluding any compensation payable by Borrower under any Tri-party Agreement); and (iii) any charge or penalty payable by Xxxxxxxx (net, however, of any corresponding charge or penalty payable by Xxxxxx as a result of the event that led to the charge or penalty being imposed on Xxxxxxxx) . Gains and losses on Cash Collateral investments shall not be taken into account in calculating earnings for the purposes of X.X. Xxxxxx’x fee. Earnings shall be subject to adjustment as necessary to correct variances and late items. |
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| (b) | The fee payable to X.X. Xxxxxx for services performed under Section 2.6 of this Agreement shall be equal to 0% of the amount of the Cash Collateral used to make outstanding Authorized Investments. Fees shall be accrued or charged daily, as appropriate, and shall be payable monthly in arrears. |
| (c) | X.X. Xxxxxx may make reasonable amendments to the above fees at any time should either (i) Lender’s actual investment guidelines or portfolio differ significantly from the assumptions used to develop X.X. Xxxxxx’x fee proposal, (ii) Lender imposes material restrictions on the lending of Securities under this Agreement or the classes of Collateral that can be received, (iii) Lender’s service requirements change, (iv) Lender’s use of any other products that were included in X.X. Xxxxxx’x pricing proposal to the Lender is discontinued or modified in any respect material to X.X. Xxxxxx’x pricing proposal, or (v) the volume of Loans is materially and adversely affected due to a change in Applicable Law. |
| (d) | X.X. Xxxxxx may retain its share of earnings and fees under this Agreement and shall credit Lender monthly with Xxxxxx’s share of earnings and Loan Fees. X.X. Xxxxxx may reverse a credit to Lender of earnings and Loan Fees upon oral or written notification that such amount was incorrectly credited. |
| (e) | Lender shall reimburse X.X. Xxxxxx for its reasonable out-of-pocket or incidental expenses incurred in providing the services under this Agreement, including, but not limited to, legal fees. X.X. Xxxxxx may apply these expenses, and any other amounts owed by Lender under this Agreement against Xxxxxx’s cash account with X.X. Xxxxxx and/or a Collateral Account. |
| (f) | Invoices (if any) will be payable within thirty (30) days of the date of the invoice. If Lender disputes an invoice it shall nevertheless pay, or allow X.X. Xxxxxx to deduct, such portion of the invoice that is not subject to a bona fide dispute. Without prejudice to X.X. Xxxxxx’x other rights, X.X. Xxxxxx reserves the right to charge interest on overdue amounts from the due date until actual payment at such rate as X.X. Xxxxxx customarily charges for similar overdue amounts. |
| 5.2 | Overdrafts |
X.X. Xxxxxx may, in its sole discretion, advance funds on behalf of Lender in order to pay to Borrowers any Rebates or to return to Borrowers Cash Collateral to which they are entitled under the applicable MSLA and deduct such advances from Xxxxxx’s cash account (even if an overdraft of the cash account results). If X.X. Xxxxxx elects to make such an advance, the advance will be deemed a loan to Lender, payable on demand, bearing interest at the applicable rate charged by X.X. Xxxxxx from time to time, for such overdrafts, from the date of such advance to the date of payment (both after as well as before judgment) and otherwise on the terms on which X.X. Xxxxxx makes similar overdrafts available from time to time. No prior action or course of dealing on X.X. Xxxxxx’x part will be asserted by Xxxxxx against X.X. Xxxxxx for X.X. Xxxxxx’x refusal to make advances to Lender under this Agreement or to settle any transaction for which Xxxxxx does not have sufficient available funds in the applicable currency in its cash account.
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| 5.3 | X.X. Xxxxxx’x Right Over Securities; Set-off |
| (a) | Without prejudice to X.X. Xxxxxx’x rights under Applicable Law, until satisfaction of all Liabilities outstanding from time to time (whether actual or contingent) of Lender to X.X. Xxxxxx or any of its Affiliates, X.X. Xxxxxx shall have, and Lender shall grant to X.X. Xxxxxx a security interest in and a lien on the assets held in the Securities Accounts and Xxxxxx’s interest in the Collateral Account and any other property at any time held by X.X. Xxxxxx for the benefit of Lender or in which Lender may have an interest which is then in X.X. Xxxxxx’x possession or control or in the possession or control of any third party acting on X.X. Xxxxxx’x behalf. X.X. Xxxxxx shall be entitled without notice to Lender, to withhold delivery of such assets, sell or otherwise realize any of such assets and to apply the proceeds and any other monies credited to any cash account maintained by Xxxxxx with X.X. Xxxxxx in satisfaction of such Liabilities. For this purpose, X.X. Xxxxxx may make such currency conversions as may be necessary at its then current rates for the sale and purchase of relevant currencies. |
| (b) | Without prejudice to X.X. Xxxxxx’x rights under Applicable Law, X.X. Xxxxxx may set off against any amount owing by Lender to X.X. Xxxxxx or any of its Affiliates any amount in any currency standing to the credit of any of Lender’s accounts (whether deposit or otherwise) with any X.X. Xxxxxx branch or office or with any Affiliate of X.X. Xxxxxx. For this purpose, X.X. Xxxxxx shall be entitled to accelerate the maturity of any fixed term deposits and to effect such currency conversions as may be necessary at its current rates for the sale and purchase of the relevant currencies. |
| 6. | ADDITIONAL PROVISIONS RELATING TO THE PARTIES |
| 6.1 | Representations of Xxxxxx and X.X. Xxxxxx |
| (a) | Lender represents and warrants that (i) it has full authority and power, and has obtained all necessary authorizations and consents, to enter into and perform its obligations under this Agreement, and to incur overdrafts as contemplated by this Agreement, and xxxxx x xxxx over assets as contemplated by Section 5.3; (ii) assuming execution and delivery of this Agreement by X.X. Xxxxxx, this Agreement is Xxxxxx’s legal, valid and binding obligation, enforceable in accordance with its terms and it has full power and authority to enter into and has taken all necessary corporate action to authorize the execution of this Agreement; (iii) it has not relied on any oral or written representation made by X.X. Xxxxxx or any person on its behalf, and acknowledges that this Agreement sets out to the fullest extent the duties of X.X. Xxxxxx; (iv) it is a resident of the United States and shall notify X.X. Xxxxxx of any changes in residency; (v) the execution, delivery, and performance by it of this Agreement shall at all times comply with all applicable laws and regulations, (vi) each Loan shall be, legally and validly entered into, and does not and shall not violate any statute, regulation, rule, order or judgment binding on Lender, or any provision of Lender’s charter or by-laws, or any agreement binding on Lender or affecting its property; (vii) it is lending Securities as principal and shall not transfer, assign or encumber its interest in, or rights with respect to, any Securities available for Loan under this Agreement, except for rights granted to X.X. Xxxxxx under the Custody Agreement; (viii) it is the beneficial owner of all Securities or otherwise has the right to lend Securities; (ix) it is entitled to receive all Distributions on Securities eligible for lending under this Agreement; and (x) the representations and warranties to be given by X.X. Xxxxxx on Xxxxxx’s behalf as set out in the MSLAs are true and will continue to be true at all times until termination of X.X. Xxxxxx’x authority to act as Xxxxxx’s agent as provided in this Agreement. Lender shall promptly identify to X.X. Xxxxxx by notice, which notice may be oral, any Securities that are no longer subject to the foregoing representations. |
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X.X. Xxxxxx may rely upon the certification of such other facts as may be required to administer X.X. Xxxxxx’x obligations under this Agreement and Lender shall indemnify X.X. Xxxxxx against all Liabilities arising directly or indirectly from any such certifications.
| (b) | X.X. Xxxxxx represents and warrants that (i) assuming execution and delivery of this Agreement by Xxxxxx, this Agreement is X.X. Xxxxxx’x legal, valid and binding obligation, enforceable in accordance with its terms and (ii) it has full power and authority to enter into and has taken all necessary corporate action to authorize the execution of this Agreement. |
| 6.2 | Lender to Provide Certain Information to X.X. Xxxxxx |
Upon request, Lender will promptly provide to X.X. Xxxxxx such information about itself and its financial status as X.X. Xxxxxx may reasonably request, including Xxxxxx’s organizational documents and its current audited and unaudited financial statements.
| 7. | WHEN X.X.XXXXXX IS LIABLE TO LENDER |
| 7.1 | Standard of Care; Liability |
| (a) | X.X. Xxxxxx will use reasonable care in performing its obligations under this Agreement. X.X. Xxxxxx will not be in violation of this Agreement with respect to any matter as to which it has satisfied its obligation of reasonable care. |
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| (b) | X.X. Xxxxxx will be liable for Xxxxxx’s direct damages to the extent they result from X.X. Xxxxxx’x fraud, negligence or willful misconduct in performing its duties as set out in this Agreement. Nevertheless, under no circumstances will X.X. Xxxxxx be liable for any indirect, incidental, consequential or special damages (including, without limitation, lost profits) of any form incurred by any person or entity, whether or not foreseeable and regardless of the type of action in which such a claim may be brought, with respect to X.X. Xxxxxx’x performance under this Agreement, or X.X. Xxxxxx’x role as lending agent. |
| (c) | Lender will indemnify X.X. Xxxxxx Indemnitees against, and hold them harmless from, any Liabilities that may be imposed on, incurred by or asserted against any of X.X. Xxxxxx Xxxxxxxxxxx in connection with or arising out of X.X. Xxxxxx’x performance under this Agreement (including without limitation any action taken or omitted by X.X. Xxxxxx in connection with enforcing Xxxxxx’s rights under the applicable MSLA), provided the X.X. Xxxxxx Indemnitees have not acted with negligence or engaged in fraud or willful misconduct in connection with the Liabilities in question. |
| (d) | Xxxxxx agrees that X.X. Xxxxxx provides no service in relation to, and therefore has no duty or responsibility to question Instructions or make any suggestions to Lender or an Authorized Person regarding such Instructions. |
| (e) | X.X. Xxxxxx may refrain from bringing any legal action or proceeding arising out of or in connection with any Loan until it shall have received such security as it may require for all costs, expenses (including legal fees) and liabilities which it shall or may expend or incur in relation to that Loan. |
| (f) | Subject to subsection 7.1 (a) and X.X. Xxxxxx’x express obligations under Sections 2.7 and 3.2 of this Agreement, X.X. Xxxxxx shall not be liable for any Liabilities arising out of the failure of any Borrower to fulfill the terms of any Loan or MSLA. |
| 7.2 | Force Majeure |
X.X. Xxxxxx will maintain and update from time to time business continuation and disaster recovery procedures with respect to its securities lending business that it determines from time to time meet reasonable commercial standards. X.X. Xxxxxx will have no liability, however, for any damage, loss, expense or liability of any nature that Lender may suffer or incur, caused by an act of God, fire, flood, civil or labor disturbance, war, terrorism, act of any governmental authority or other act or threat of any authority (de jure or de facto), legal constraint, fraud or forgery (other than on the part of X.X. Xxxxxx or its employees), malfunction of equipment or software (except where such malfunction is primarily attributable to X.X. Xxxxxx’x negligence in maintaining the equipment or software), failure of or the effect of rules or operations of any external funds transfer system, inability to obtain or interruption of external communications facilities, or any other cause beyond the reasonable control of X.X. Xxxxxx (including without limitation, the non-availability of appropriate foreign exchange).
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| 7.3 | X.X. Xxxxxx May Consult With Counsel |
X.X. Xxxxxx will be entitled to rely on, and may act upon the advice of professional advisers in relation to matters of law, regulation or market practice (which may be the professional advisers of Lender), and will not be liable to Lender under this Agreement for any action reasonably taken or omitted in accordance with such advice, provided that X.X. Xxxxxx selected such professional advisors and acted reasonably in reliance on such advice, in good faith.
| 7.4 | X.X. Xxxxxx Provides Diverse Financial Services and May Generate Profits as a Result |
Lender hereby authorizes X.X. Xxxxxx to act under this Agreement notwithstanding that: (a) in its individual capacity or acting in a fiduciary capacity for other accounts, may have transactions with the same institutions to which X.X. Xxxxxx may be lending Securities , or in which X.X. Xxxxxx may invest Cash Collateral, under this Agreement, which transactions may give rise to actual or potential conflict of interest situations; (b) X.X. Xxxxxx may use EquiLend, a securities lending platform in which X.X. Xxxxxx has an equity interest (and therefore a financial interest in its success), to transact certain Loans with Borrowers that are EquiLend participants (it being understood that EquiLend will neither act as principal in, nor guarantee, any such Loan); (c) X.X. Xxxxxx may, when making Authorized Investments as agent for Xxxxxx, enter into repurchase agreements under which collateral posted by the repurchase agreement seller is held by X.X. Xxxxxx, as custodian for such seller, and X.X. Xxxxxx, in that capacity as custodian for the repurchase agreement seller, earns a fee from the repurchase agreement seller for holding such collateral as custodian; and (d) in its capacity as custodian for certain Xxxxxxxxx, X.X. Xxxxxx may receive a fee for holding Collateral in the form of Securities posted for Loans by such Xxxxxxxx. Lender acknowledges that such fees are separate from, and in addition to, the fees that X.X. Xxxxxx earns under this Agreement and Lender hereby consents to the receipt by X.X. Xxxxxx of such fees from repurchase agreement counterparties and Borrowers that use X.X. Xxxxxx as custodian for collateral. In connection with the foregoing, X.X. Xxxxxx shall not be bound to: (i) account to Lender for any fee or other sum received or profit made by X.X. Xxxxxx for its own account or the account of any other person or (ii) disclose any information concerning the specifics of any given transaction or arrangement listed above.
| 7.5 | Responsibility for Certain Third Parties |
| (a) | X.X. Xxxxxx may use third party delivery services and providers of information regarding matters such as pricing, and credit ratings. Although X.X. Xxxxxx will use reasonable care in the selection and retention of such third party providers, it will not be responsible for any errors or omissions made by them in providing the relevant information or services. |
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| (b) | X.X. Xxxxxx shall have no obligation under this Agreement for Liabilities which are sustained or incurred by Lender by reason of any action or inaction by any Securities Depository or a Tri-party Institution, other than X.X. Xxxxxx or any of its Affiliates, or their respective assigns, successors or nominees. If Lender is damaged by the failure of a Securities Depository or a Tri-party Institution, other than X.X. Xxxxxx or any of its Affiliates, to properly fulfill its obligations with respect to Collateral or Securities, X.X. Xxxxxx shall provide reasonable cooperation with respect to any claim that Lender may choose to assert against the Securities Depository or Tri-party Institution in the matter. |
| 8. | TAXATION |
| 8.1 | Tax Filings |
Lender shall be responsible for all filings, tax returns and reports on any Loans undertaken by X.X. Xxxxxx on Xxxxxx’s behalf which are to be made to any authority whether governmental or otherwise and for the payment of all unpaid calls, taxes (including, without limitation, any value added tax), imposts, levies or duties due on any principal or interest, or any other liability or payment arising out of or in connection with any Securities or any Collateral, and insofar as X.X. Xxxxxx is under any obligation (whether of a governmental nature or otherwise) to pay the same on Xxxxxx’s behalf, X.X. Xxxxxx may do so out of any monies or assets held by it under the terms of the Custody Agreement or this Agreement.
| 8.2 | Tax Treatment |
Lender acknowledges that: (i) the tax treatment of the payments made by a Borrower to Lender in lieu of Distributions (including, by way of illustration and not of limitation, with respect to any dividends received deduction and amounts paid by the depositary on American Depositary Receipts and Global Depositary Receipts) may differ from the tax treatment of the Distribution to which such payments relate; and (ii) it has made its own determination as to the tax treatment of any Loan made under this Agreement, of any in lieu of payments made by a Borrower and of any remuneration and any other amounts that may be received by it under this Agreement.
| 9. | TERMINATION |
| 9.1 | Termination |
| (a) | The initial term of this Agreement shall be for a period of three years following the date on which X.X. Xxxxxx commenced providing services under the Agreement. Following the initial term, either party may terminate this Agreement on sixty (60) days' written notice to the other. |
| (b) | Notwithstanding Section 9.1(a): |
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| (i) | Either party may terminate this Agreement immediately on written notice to the other party if a material breach of this Agreement by the other party has not been cured within thirty (30) days’ of that party being given written notice of the material breach; |
| (ii) | Either party may terminate this Agreement immediately on written notice to the other party upon the other party being declared bankrupt, entering into a composition with creditors, obtaining a suspension of payment, being put under court controlled management or being the subject of a similar measure; |
| (iii) | X.X. Xxxxxx may terminate this Agreement on sixty (60) days’ written notice to Lender if X.X. Xxxxxx reasonably determines that Lender has ceased to satisfy X.X. Xxxxxx’x customary credit requirements. |
| (c) | Termination will not affect any of the liabilities either party owes to the other arising under this Agreement prior to such termination. |
| 9.2 | Exit Procedure |
Following the delivery of the notice of termination, the parties shall cooperate in the termination of Loans and the disposition of investments of Cash Collateral in a manner to minimize the risk to the parties.
| 10. | MISCELLANEOUS |
| 10.1 | Notifications |
Notices under Article 9 of this Agreement will be served by registered mail or hand delivery to the address of the respective parties as set out on the first page of this Agreement, unless notice of a new address is given to the other party in writing. Notice under Article 9 will not be deemed to be given unless it has been received.
| 10.2 | Successors and Assigns |
This Agreement will be binding on each of the parties’ successors and assigns, but the parties agree that neither party can assign any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed.
| 10.3 | Interpretation |
Headings are for convenience only and are not intended to affect interpretation. References to Sections are to Sections of this Agreement and references to sub-Sections and paragraphs are to sub-Sections of the Sections and paragraphs of the sub-Sections in which they appear.
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| 10.4 | Entire Agreement |
This Agreement, including the Schedules and appendices, sets out the entire Agreement between the parties in connection with the subject matter, and this Agreement supersedes any other agreement, statement, or representation relating to securities lending, whether oral or written. Amendments must be in writing and, except where this Agreement provides for amendments by notice from X.X. Xxxxxx, signed by both parties.
| 10.5 | Insurance |
Lender acknowledges that X.X. Xxxxxx will not be required to maintain any insurance coverage specifically for the benefit of Lender. X.X. Xxxxxx will, however, provide summary information regarding of its own general insurance coverage to Lender upon written request.
| 10.6 | Governing Law and Jurisdiction |
This Agreement will be construed, regulated, and administered under the laws of the United States or State of New York, as applicable, without regard to New York’s principles regarding conflict of laws, except that the foregoing shall not reduce any statutory right to choose New York law or forum. The United States District Court for the Southern District of New York will have the sole and exclusive jurisdiction over any lawsuit or other judicial proceeding relating to or arising from this Agreement. If that court lacks federal subject matter jurisdiction, the Supreme Court of the State of New York, New York County will have sole and exclusive jurisdiction. Either of these courts will have proper venue for any such lawsuit or judicial proceeding, and the parties waive any objection to venue or their convenience as a forum. The parties agree to submit to the jurisdiction of any of the courts specified and to accept service of process to vest personal jurisdiction over them in any of these courts. The parties further hereby knowingly, voluntarily and intentionally waive, to the fullest extent permitted by applicable law, any right to a trial by jury with respect to any such lawsuit or judicial proceeding arising or relating to this Agreement or the transactions contemplated hereby. To the extent that in any jurisdiction Lender may now or hereafter be entitled to claim, for itself or its assets, immunity from suit, execution, attachment (before or after judgment) or other legal process, Lender shall not claim, and it hereby irrevocably waives, such immunity.
| 10.7 | Severability; Waiver; and Survival |
| (a) | If one or more provisions of this Agreement are held invalid, illegal or unenforceable in any respect on the basis of any particular circumstances or in any jurisdiction, the validity, legality and enforceability of such provision or provisions under other circumstances or in other jurisdictions and of the remaining provisions will not in any way be affected or impaired. |
| (b) | Except as otherwise provided herein, no failure or delay on the part of either party in exercising any power or right under this Agreement operates as a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any other power or right. No waiver by a party of any provision of this Agreement, or waiver of any breach or default, is effective unless it is in writing and signed by the party against whom the waiver is to be enforced. |
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| (c) | The parties’ rights, protections, and remedies under this Agreement shall survive its termination. |
| 10.8 | Confidentiality |
| (a) | Subject to Clause 10.8(b) X.X. Xxxxxx will hold all Confidential Information in confidence and will not disclose any Confidential Information except as may be required by Applicable Law, a regulator with jurisdiction over X.X. Xxxxxx’x business, or with the consent of Lender. |
| (b) | Lender authorizes X.X. Xxxxxx to disclose Confidential Information to: |
| (i) | any subcontractor, agent, Securities Depository, securities exchange, Tri-party Institution, Borrower, broker, third party agent, proxy solicitor, issuer, and, on an anonymous basis, industry benchmarking/analytics service providers or any other person that X.X. Xxxxxx believes it is reasonably required in connection with X.X. Xxxxxx’x provision of relevant services under this Agreement; |
| (ii) | its professional advisors, auditors or public accountants; |
| (iii) | its Affiliates and branches; and |
| (iv) | any revenue authority or any governmental entity in relation to the processing of any tax relief claim. |
| (c) | Except as otherwise required by Applicable Law or as needed to enforce the terms of this Agreement, the parties shall hold the terms and conditions of this Agreement, including, without limitation, any commercial terms, in confidence. |
| (d) | The confidentiality obligation of each party will survive for one year after the termination of this Agreement. |
| 10.9 | Counterparts |
This Agreement may be executed in several counterparts each of which will be deemed to be an original and together will constitute one and the same agreement.
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| 10.10 | No Third Party Beneficiaries |
A person who is not a party to this Agreement shall have no right to enforce any term of this Agreement.
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ASPIRIANT GLOBAL EQUITY TRUST ON BEHALF OF EACH SERIES OR FUND LISTED ON APPENDIX A
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JPMORGAN CHASE BANK, N.A.
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By:
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By:
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Name: Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Fund Secretary
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Title: Managing Director
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May 09 2013
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ASPIRIANT GLOBAL EQUITY TRUST ON BEHALF OF EACH SERIES OR FUND LISTED ON
APPENDIX A
APPENDIX A
SCHEDULE 1
JPMorgan Chase Bank, N.A.
Securities Lending Investment Guidelines (Non-ERISA) - See Separate Attachment
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