EXHIBIT (h)(8)
SECURITIES LENDING AGREEMENT:
CUSTOMER AGREEMENT (FUND/INDEMNIFIED)
FORM OF
SECURITIES LENDING AGREEMENT
CUSTOMER AGREEMENT
This Securities Lending Agreement, made as of this ___ day of
_______________, 2006 including all exhibits attached hereto, all of the terms
of which are incorporated herein by reference, in each case, as amended and/or
supplemented from time to time in accordance with the terms hereof (this
"Agreement"), by and between U.S. Bank National Association (the "Bank") and
BB&T Variable Insurance Funds (hereinafter referred to as the "Trust"), a
Massachusetts business trust, on behalf of each respective series identified on
Exhibit A attached hereto, separately and not jointly (each such series
hereinafter referred to as a separate "Customer").
This Agreement shall be deemed for all purposes to constitute a separate
and discrete agreement between the Bank and each Customer as it may be amended
by the parties from time to time, and no Customer shall be responsible or liable
for any of the obligations of any other Customer under this Agreement or
otherwise, notwithstanding anything to the contrary contained herein. In
addition, with respect to transactions entered into by a Customer, neither the
Bank nor any Borrower (as defined below) shall in any event have recourse to the
assets of any other Customer.
WITNESSETH:
WHEREAS, the Trust is an open-end management investment company registered
under the Investment Company Act of 1940 (the "1940 Act") which offers its
shares in one or more separate series, with each such series representing a
separate and distinct pool of cash, securities, and other assets (collectively
"Property"); and
WHEREAS, each Customer desires to have the Bank engage in securities
lending as Customer's agent with respect to certain Securities; and
WHEREAS, the Bank and each Customer desire to specify the terms and
conditions under which such securities lending will be performed.
NOW, THEREFORE, in consideration of the mutual premises, covenants and
undertakings set forth herein, the parties hereto agree as follows:
1. Definitions: For purposes hereof:
"Adviser" shall mean BB&T Asset Management, Inc., the investment
adviser to each Customer.
"Borrower" shall be, subject to the other provisions of this
Agreement, one or more (i) broker-dealers registered under the Securities
Exchange Act of 1934 (the "1934 Act"); (ii) broker-dealers exempt from
registration under 15(a)(1) of the 1934 Act as a
dealer in exempted Government Securities, or (iii) bank(s), with which the
Bank or one of its agents has established a securities lending agreement
whereby Borrower may borrow Securities and which the Customer has expressly
approved in accordance with the last sentence of this paragraph. Such
Borrowers are listed in Exhibit B attached hereto. Borrowers may be added
to or deleted from Exhibit B by (i) written notice delivered by the
Customer to the Bank, or (ii) written notice delivered by the Bank to the
Customer which is confirmed by the Customer via letter, fax or e-mail.
"Borrower Agreement" shall have the meaning provided such term in
Section 3(a) hereof.
"Business Day" shall mean, with respect to any Loan hereunder, a day
on which regular trading occurs in the principal market for the Loaned
Securities subject to such Loan, provided, however, that for purposes of
determining the Market Value of any Securities hereunder, such term shall
mean a day on which regular trading occurs in the principal market for the
Securities whose value is being determined. Notwithstanding the foregoing,
in no event shall a Saturday or Sunday be considered a Business Day.
"Close of Trading" shall mean, with respect to any Security, the end
of the primary trading session established by the principal market for such
Security on a Business Day.
"Collateral" shall be collateral which the Bank shall receive from
Borrower(s) to secure Loans on behalf of a Customer in the form of (i) cash
denominated in United States dollars ("Cash Collateral"), (ii) securities
issued or guaranteed by the United States Government or its agencies, or
(iii) irrevocable bank letters of credit issued by a person other than the
Borrower or an affiliate thereof, or an equivalent obligation denominated
in United States dollars that is pre-approved by the Adviser.
"Government Securities" shall mean government securities as defined in
Section 3(a)(42)(A)-(C) of the 1934 Act, as amended.
"Loans" shall be the lending of Securities to Borrower(s).
"Loaned Securities" shall be those Securities which are loaned to the
Borrower(s) by the Bank, securities identical to such Securities, or
securities equivalent to such loaned Securities in the event of a
reorganization, recapitalization or merger affecting the originally loaned
securities.
"Margin Percentage" shall mean, with respect to any Loan as of any
date, a percentage agreed to by the Borrower and the Bank, provided that in
no event shall the Margin Percentage be less than 100% of the Market Value
of the Loaned Securities.
"Xxxx to Market" shall be the procedure whereby the Bank determines
the Market Value of securities Collateral and Loaned Securities.
"Market Value" shall be:
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(i) If the principal market for the securities to be valued is a
national securities exchange in the United States, their Market Value
shall be determined by their last sale price on such exchange at the
most recent Close of Trading or, if there was no sale on the Business
Day of the most recent Close of Trading, by the last sale price at the
Close of Trading on the next preceding Business Day on which there was
a sale on such exchange, all as quoted on the Consolidated Tape or, if
not quoted on the Consolidated Tape, then as quoted by such exchange,
including where applicable, accrued interest to the extent not already
included therein, unless market practice with respect to the valuation
of such securities in connection with securities loans is to the
contrary.
(ii) If the principal market for the securities to be valued is
the over-the-counter market, and the securities are quoted on The
Nasdaq Stock Market ("Nasdaq"), their Market Value shall be the last
sale price on Nasdaq at the most recent Close of Trading or, if the
securities are issues for which last sale prices are not quoted on
Nasdaq, the last bid price at such Close of Trading. If the relevant
quotation did not exist at such Close of Trading, then the Market
Value shall be the relevant quotation on the next preceding Close of
Trading at which there was such a quotation, including where
applicable, accrued interest to the extent not already included
therein, unless market practice with respect to the valuation of such
securities in connection with securities loans is to the contrary.
(iii) Except as provided in Subsection (iv) of this definition,
if the principal market for the securities to be valued is the
over-the-counter market, and the securities are not quoted on Nasdaq,
their Market Value shall be determined in accordance with market
practice for such securities, based on the price for such securities
as of the most recent Close of Trading obtained from a generally
recognized source agreed to by the Bank and the Borrower(s) or the
closing bid quotation at the most recent Close of Trading obtained
from such a source. If the relevant quotation did not exist at such
Close of Trading, then the Market Value shall be the relevant
quotation on the next preceding Close of Trading at which there was
such a quotation, including where applicable, accrued interest to the
extent not already included therein, unless market practice with
respect to the valuation of such securities in connection with
securities loans is to the contrary.
(iv) The Market Value of a letter of credit shall be the
outstanding amount thereof.
"Offering Memorandum" shall mean the offering memorandum dated on or
about March 31, 2006 relating to the Selected Series.
"Person" shall be any natural person, corporation, partnership,
limited partnership, joint venture, firm, association, trust,
unincorporated organization, government or governmental agency or political
subdivision or any other entity, whether acting in an individual, fiduciary
or other capacity.
"RIC" shall be the Mount Xxxxxx Securities Lending Trust.
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"Securities" shall be securities, of any type, that are owned or
controlled by a Customer and that have been hereby approved for use in
securities lending by a Customer.
"Selected Series" shall be the series of the RIC that is selected by a
Customer for investment of Cash Collateral, as identified on the Customer
Information Sheet attached hereto. The Selected Series may be changed by a
Customer upon thirty (30) days written notice to the Bank.
"Substitute Payments" shall mean payments in amounts equal to all
distributions made to holders of Loaned Securities during the term of the
Loan, including, but not limited to, cash dividends, interest payments,
shares of stock as a result of stock splits, and rights to purchase
additional securities.
2. Appointment and Acceptance. Each Customer hereby appoints the Bank as
its agent for the purpose of lending Securities; and the Bank hereby agrees to
accept such appointment and act in such capacity.
3. Delivery of Securities; Receipt of Collateral; Return of Collateral.
Until given written notice of termination pursuant to Section 15, each Customer
hereby authorizes the Bank, and the Bank agrees, to undertake the following:
(a) To enter into and maintain securities loan agreements with
Borrower(s) which set forth terms consistent with this Agreement. Each
Customer acknowledges that the standard form(s) of Borrower Agreement(s)
entered or to be entered with Borrowers will be substantially in the form
of the most current Master Securities Loan Agreement produced by the Bond
Market Association and each Customer authorizes the Bank to lend Securities
to Borrowers pursuant to agreements substantially in the form thereof (each
such agreement referred to herein as a "Borrower Agreement"). Any Customer
may direct the Bank not to enter into Loans with a Borrower, as the
Customer specifies by written notice to the Bank, in each case
notwithstanding the Customer's prior approval of such Borrower in
accordance with the terms contained herein.
(b) To negotiate fees with Borrowers in connection with securities
lending, subject to the following requirements. In the case of a Loan for
which the Collateral is Cash Collateral, the Bank shall negotiate a fee
(the "Borrower Rebate Fee") to be paid by the Bank to the Borrower on
behalf of a Customer. In the case of a Loan for which the Collateral is
non-cash, the Bank shall negotiate a loan fee to be paid by the Borrower.
(c) To deliver to Borrowers, from time to time, such Securities as the
Bank may in its discretion select for securities lending in accordance with
this Agreement, subject to any limitations in the respective Customers'
prospectuses and statements of additional information concerning the
percentages of a Customer's assets which may be subject to securities
lending transactions at any one time.
(d) To use the securities lending services and custodial services of
other financial institutions, including, without limitation, FAF Advisors,
Inc. ("FAF Advisors") and other financial institutions that are agents or
affiliates of the Bank as agents of the Bank,
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for the benefit of each Customer, as the Bank in its discretion shall
determine to be necessary or desirable to perform securities lending on
behalf of each Customer.
(e) In connection with each Loan, to receive from the Borrower, at the
time the Securities are loaned, Collateral of a value at least equal to
100% of the then current Market Value of the Loaned Securities. Such
Collateral shall be held as security by the Bank on behalf of the Customer
for the due and punctual performance by the Borrower of any and all of the
Borrower's obligations under the Borrower Agreement.
(f) To hold and safekeep the Collateral on behalf of each Customer
separate and apart from other securities lending collateral held by the
Bank for other customers of the Bank in a manner such that each Customer
shall have a perfected security interest in such collateral free and clear
of any creditor of any Borrower or the Bank, and each Customer's specific
interest in the Customer's Collateral shall at all times be noted in the
records of the Bank.
(g) To invest Cash Collateral for the benefit of each Customer in the
Selected Series.
(h) Upon termination of any Loan, to liquidate Cash Collateral
investments made with the Collateral and to return the Collateral to the
Borrower in accordance with the Borrower Agreement so long as the Borrower
is not in default and the Bank receives the Loaned Securities from the
Borrower.
(i) To receive from the Borrower Substitute Payments and to forward
such Substitute Payments to each Customer.
(j) To pay to the Borrower all interest and dividend payments,
including Substitute Payments, received on securities which are held as
Collateral, provided that there is no material default by the Borrower of
the terms and conditions of the Borrower Agreement, in cases where the
Borrower has provided non-cash Collateral in the form of securities, in
whole or in part.
(k) To originate or terminate any Loan at any time as the Bank may in
its discretion determine pursuant to the terms of this Agreement, without
prior notice to a Customer.
(l) In connection with a Customer's Loaned Securities, to collect loan
fees owed by Borrowers and income earned on Cash Collateral investments,
and to dispose of such monies pursuant to Sections 3(b) and 8 of this
Agreement.
(m) To disclose to any Borrower, or to any Person party to an
investment entered into pursuant to Section 3(g) above, the name of the
applicable Customer and such other information required by such Borrower or
such Person to enable such Borrower or such Person to comply with
applicable federal or state law, as the Bank may in its discretion deem
necessary.
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(n) To group each Customer's securities together with the securities
of other securities lending customers for the purposes of facilitating
Loans to Borrowers. Each Customer acknowledges that whether particular
securities are loaned depends on many variables, including, but not limited
to, the demand for a particular security by Borrowers, the Bank's automated
queuing system for equitable utilization of all available securities for
lending transactions, and the quantity of a particular security that is
held in the lendable pool, and that the Bank cannot ensure that the
Customer's Securities will become the subject of any particular Loan or
that the Customer's Securities will be loaned.
4. Voting Rights. Customer shall not retain voting rights of Loaned
Securities while loaned to any Borrower.
5. Xxxx to Market. The Bank shall on a daily basis (a) Xxxx to Market
Loaned Securities and Collateral. If the Market Value of the Collateral at the
close of trading on a Business Day is less than the Margin Percentage of the
Market Value of the Loaned Securities at the close of trading on that day, the
Borrower shall deliver, by the close of business on the following Business Day,
an additional amount of Collateral the Market Value of which, together with the
Market Value of all previously delivered collateral, equals at least the Margin
Percentage of the Market Value of the Loaned Securities as of such preceding
day. In the event that the Market Value of the Collateral exceeds the Margin
Percentage of the Market Value of the Loaned Securities, part of the Collateral
may be returned to the Borrower as long as the Market Value of the remaining
Collateral equals at least the Margin Percentage of the Market Value of the
Loaned Securities.
6. Accountings. The Bank shall include in a regular report to each Customer
to be produced on a daily basis a listing of all securities loans outstanding.
On a monthly basis the Bank shall provide to each Customer an accounting of all
securities lending transactions.
7. Loan Termination by Customer.
(a) Unless otherwise agreed in writing, any Customer may, in its
discretion, elect to terminate a Loan on a termination date established by
notice given to the Bank prior to the close of business on a Business Day.
The termination date established by a termination notice shall be a date no
earlier than the standard settlement date that would apply to a purchase or
sale of the Loaned Securities, which date shall be determined in accordance
with the terms of the Borrower Agreement. Upon receipt of such notice, the
Bank shall notify the appropriate Borrower for return of the Loaned
Securities in accordance with the terms of the Borrower Agreement.
(b) The Bank shall be deemed to have received appropriate notice as
required by this Section 7 upon receipt of written or oral directions (i)
signed or given by any person whose name and signature is listed on the
most recent certificate delivered by the Customer to the Bank which lists
those persons authorized to give directions in the name and on behalf of
the Customer or (ii) signed or given by any other person(s), duly
authorized by the Customer to give directions to the Bank hereunder or whom
the Bank reasonably believes to be so authorized. Appropriate notice as
required by this Section 7
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shall include notice sent to the Bank by letter, memorandum, telegram,
cable, telex, telecopy facsimile, video (CRT) terminal or other "on-line"
system, or similar means of communication, or given over the telephone or
in person.
8. Fees.
(a) Each Customer shall pay fees to the Bank in the amount and at such
times set forth on Exhibit C attached hereto and made a part hereof as
though fully set forth herein. The provisions of Exhibit C may be
renegotiated at any time upon five days written notice by either party
hereto and may be amended by a separate writing between the Bank and a
Customer. The Bank shall charge such fees against the net income received
as proceeds from securities lending transactions (after payment of any
applicable Borrower Rebate Fees) ("Net Income"); provided, however, that if
not so charged, the Customer shall pay such fees.
(b) Any Borrower Rebate Fee incurred by a Customer arising from the
receipt of cash as Collateral for Loaned Securities shall be charged
against the gross income received by the Customer as proceeds from
securities lending transactions and the Bank shall pay such Borrower Rebate
Fee to the appropriate Borrower on behalf of the Customer; provided,
however, that if not so charged, the Customer shall pay such Borrower
Rebate Fee.
9. Customer Representations and Warranties.
(a) Each Customer represents and warrants that: (i) the Customer has
the legal right, power and authority to execute, deliver and perform this
Agreement and to carry out all of the transactions contemplated hereby;
(ii) the execution and delivery of this Agreement by the Customer will not
violate any provision of its charter, bylaws or any other governing
documents, or any law, or any regulation, interpretation or order or any
court or other government agency, or judgment, applicable to the Customer;
(iii) the Customer has obtained all necessary authorizations, including
those from any persons who may have an interest in the Securities,
including the consent or approval of any governmental agency or
instrumentality; (iv) the execution, delivery and performance of this
Agreement and the carrying out of any of the transactions contemplated
hereby will not be in conflict with, result in a breach of or constitute a
default under any agreement or other instrument to which the Customer is a
party or which is otherwise known to the Customer, including but not
limited to, liens against and/or pledges of Securities; and (v) all persons
executing this Agreement on behalf of the Customer and carrying out the
transactions contemplated hereby on behalf of the Customer are duly
authorized to do so.
(b) The Trust represents and warrants that it is an "investment
company" as that term is defined in the Investment Company Act of 1940 (the
"1940 Act") and that it will indicated each "affiliate" as that term is
defined in the 1940 Act by instructing the Bank not to lend each Customer's
Securities to such Borrower by completion of Exhibit A hereto.
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(c) Each Customer is aware that it is possible to loan portfolio
securities without incurring the loan fees payable pursuant hereto by
administering such a program itself, rather than hiring the Bank.
(d) Each Customer represents and warrants that each Person who owns,
controls or possesses securities which may be lent pursuant to this
agreement is identified in the Customer Information Sheet attached hereto
and made a part hereof as though fully set forth herein, such Customer
Information Sheet to be updated from time to time upon written notice to
the Bank from a Customer (the "Customer Information Sheet") and that the
tax identification number of such Person is set forth opposite such
Person's name on such Customer Information Sheet.
(e) Each Customer represents and warrants (i) that the information
contained in the attached Customer Information Sheet relating to such
Customer is complete and accurate in all respects as of the date hereof and
each Customer acknowledges and affirms that the Bank may rely upon the
accuracy and completeness of the information contained in the Customer
Information Sheet in complying with its obligations under applicable laws
and regulations and (ii) that each Customer has reviewed and understands
the Offering Memorandum.
(f) Each Customer represents and warrants that all recitals contained
herein are true and correct in all respects.
10. The Bank's Responsibilities. The Bank's duties and responsibilities
shall only be those expressly set forth in this Agreement. The Bank hereby
agrees that it shall at all times during the term of this Agreement exercise its
reasonable care and efforts in performing its obligations hereunder. The Bank
will perform such obligations and responsibilities in accordance with all
applicable laws, including, but not limited to Securities and Exchange
Commission rules and regulations. The Bank intends to rely on the Securities and
Exchange Commission no-action letters entitled Sife Trust Fund (Feb. 17, 1982),
Norwest Bank Minnesota, N.A. (May 25, 1995) and The Chase Manhattan Bank (July
24, 2001) in performing its responsibilities under this Agreement. Neither the
Bank nor its agents shall be responsible for any loss or liability arising from
their performance of the Bank's duties under this Agreement, except for direct
loss or liability (but not consequential or punitive damages) arising from the
Bank's, or its agent's, willful misfeasance, bad faith or negligence in the
performance of the Bank's duties under this Agreement. In no event shall the
Bank be liable for special, indirect or consequential damages, or lost profits
or loss of business, arising under or in connection with this Agreement, even if
previously informed of the possibility of such damages and regardless of the
form of action.
11. Customer Responsibilities.
(a) Each Customer agrees to (i) promptly notify the Bank of any change
that the Customer wishes to make to Exhibit A, (ii) promptly notify the
Bank if any information contained in the Customer Information Sheet
relating to such Customer becomes inaccurate or untrue and (iii) indemnify
the Bank for any losses resulting from such Customer's failure to adhere to
the provisions of Subsection (a) of this Section 11.
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(b) Each Customer agrees that, to the extent any loss arising out of
investments of Cash Collateral in the Selected Series results in a
deficiency in the amount of Collateral available for return to a Borrower,
the Customer shall pay to the Bank, on demand, cash in an amount equal to
such deficiency.
(c) Each Customer acknowledges that the Bank is acting as an agent on
the Customer's behalf in connection with the lending of the Customer's
assets and the investment of cash received as Collateral for such Loans.
Each Customer understands that it bears the risks of investment loss,
including any decline in value of Cash Collateral investment and loss
resulting from any securities lending default by a Borrower.
(d) Each Customer acknowledges that it is responsible for paying any
taxes that are incurred as a result of Loans made on behalf of the
Customer, and each Customer agrees that it shall reimburse the Bank for any
taxes paid on Customer's behalf by the Bank.
(e) Each Customer agrees to reimburse the Bank and to hold the Bank
harmless from and against any and all costs, expenses, damages, liabilities
or claims, including reasonable fees and expenses of counsel incurred by
the Bank which the Bank may sustain or incur or which may be asserted
against the Bank by reason of or as a result of any action taken or omitted
by the Bank in connection with operating under this Agreement (including,
but not limited to, actions or omissions related to the lending of
Securities to Borrowers or the holding or investment of Collateral or
resulting from the Customer's failure to comply with its obligations under
Section 11(a) hereof) other than those costs, expenses, damages,
liabilities or claims arising out of the Bank's negligence, bad faith or
willful misfeasance, as adjudicated by a court of competent jurisdiction.
The foregoing shall be a continuing obligation of each Customer and each
Customer's successors and assigns, notwithstanding the termination of any
Loans hereunder or of this Agreement. The Bank may charge any amounts to
which it is entitled hereunder against the account in which the Customer's
Securities are held.
12. Indemnification.
(a) In the event of a Borrower's material default of the terms and
conditions of the Borrower Agreement, the Bank shall:
(i) take all actions the Bank deems appropriate, in its
discretion, to liquidate the Collateral,
(ii) at its own expense, but subject to each Customer's
obligations pursuant to Section 11(c) hereto, replace as soon as
reasonably practicable such Loaned Securities with identical
securities or the equivalent thereof in the event of a reorganization,
recapitalization or merger of the issuer of the Loaned Securities, or
(iii) if the Bank is unable to obtain replacement securities, the
Bank shall provide the applicable Customer with immediately available
funds in an
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amount equal to the Market Value of such Loaned Securities. The Market
Value shall be calculated (1) in the case of a Borrower insolvency, on
the date of such insolvency, or (2) in the case of a Borrower's
failure to return Loaned Securities, on the date that the Bank
deposits funds to such Customer's account.
(b) If the Market Value of the Collateral on the date of such
replacement or credit is less than that which is required to purchase
replacement securities or to provide equivalent funds to the applicable
Customer as a result of a decrease in the Market Value of investments of
Cash Collateral, the Bank will not be responsible for such decrease. In
such event, the Bank shall purchase and deposit replacement securities, or
deposit cash to such Customer's account, in an amount equal to the then
current Market Value of Cash Collateral investments. If the Market Value of
the Collateral on the date of such replacement or credit is less than that
which is required to purchase replacement securities or to credit
equivalent funds to Customer's account as a result of any reason other than
a decrease in the Market Value of investments of Cash Collateral, Bank
shall pay such additional amounts as are necessary to purchase replacement
securities in an amount equal to the Market Value of such Loaned Securities
or credit equivalent funds to Customer's account as of the date of such
replacement. The Bank shall not be liable for any appreciation in the
Market Value of the Loaned Securities subsequent to such date.
(c) Each Customer agrees that the Bank shall be subrogated to the
rights of the Customer in the Collateral and against the Borrower to the
extent of any amount paid by the Bank to the Customer hereunder.
(d) Except as provided for herein, the Bank shall have no additional
liability to a Customer relating to any Borrower's failure to return Loaned
Securities and no duty or obligation to take action to effect payment by a
Borrower of any amounts owed by such Borrower pursuant to the Borrower
Agreement.
(e) Notwithstanding the foregoing, the Bank shall not be required to
act inconsistently with (i) any court or government agency order regarding
such Collateral or (ii) the Borrower Agreement.
(f) With respect to its use in this Section 12, a Borrower's
"insolvency" is defined to mean any of the following: (i) the Borrower
shall commence any case or proceeding under any bankruptcy, insolvency,
reorganization, liquidation, dissolution or similar law, or seek the
appointment of a receiver, conservator, trustee, custodian or similar
official for such party or any substantial part of its property; (ii) any
case, proceeding or appointment referred to in the preceding Clause (i)
shall be commenced against the Borrower, or any application shall be filed
against the Borrower for a protective decree under the provisions of the
Securities Investor Protection Act of 1970 as amended, any of which (aa) is
consented to or not timely contested by the Borrower, (bb) results in the
entry of any order for relief, such an appointment, the issuance of such a
protective decree or the entry of any order having a similar effect, or
(cc) is not dismissed within 15 days; (iii) the Borrower shall make a
general assignment for the benefit of creditors; or (iv) the Borrower shall
admit in writing its inability to pay its debts as they become due.
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13. Agreement Modification. This Agreement, together with the Exhibits
hereto, contains a complete statement of the parties with respect to its subject
matter, supersedes all existing agreements between them concerning the subject
and cannot be amended or modified in any manner except by a written agreement
executed by all parties hereto. Notwithstanding the foregoing, Exhibit B may be
amended in the manner set forth in the definition of "Borrower" contained in
Section 1 and the fee schedule set forth in Exhibit C may be renegotiated and
amended in the manner set forth in Section 8(a).
14. Notice. Any notice required to be given in writing under this Agreement
shall be delivered by hand or mailed by registered mail, postage prepaid, to FAF
Advisors, Inc., 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:
Securities Lending, or such other address provided by the Bank, and to the
Customer at the most recent address of such party provided to the Bank.
15. Termination. This Agreement may be terminated at any time by the Bank
or any Customer upon thirty (30) days prior written notice to the other party.
All outstanding Loans, unless a Customer shall specify otherwise, shall remain
outstanding until such Loans terminate pursuant to the securities loan agreement
with Borrower, even if such date is past the termination date established by
either party pursuant to this Section 15 (but subject to Section 7 and to any
other agreement between the Customer and the Bank).
16. Assignment. This Agreement shall not be assignable by the Bank or any
Customer without the written consent of the other party, except that the Bank
may assign this Agreement to an affiliate of the Bank. Subject to the preceding
sentence hereof, this Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective successors and assigns.
17. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Minnesota without reference to its
conflicts or choice of law principles.
18. Matters Relating to the Trust as Massachusetts Business Trust. It is
expressly agreed that the obligations of the Trust hereunder shall not be
binding upon any of the Trustees, shareholders, nominees, officers, agents or
employees of the Trust personally, but shall bind only the trust property of the
Trust. The execution and delivery of this Agreement have been authorized by the
Trustees, and this Agreement has been signed and delivered by an authorized
officer of the Trust, acting as such, and neither such authorization by the
Trustees nor such execution and deliver by such officer shall be deemed to have
been made by any of them individually or to impose any liability on them
personally, but shall bind only the trust property of the Trust as provided in
the Trust's Declaration of Trust.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of
the day and year first above written.
BB&T Variable Insurance Funds, on behalf
of each series thereof listed on Exhibit
A hereto
By:
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Name:
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Its:
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[Customer Signature Page]
U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
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Its:
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[U.S. Bank Signature Page]
EXHIBIT A
FUNDS
FUND NAME TAX ID
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Capital Manager Equity VIF 00-0000000
Large Cap VIF 00-0000000
Large Cap Growth VIF 00-0000000
Mid Cap Growth VIF 00-0000000
Special Opportunities Equity VIF 00-0000000
Total Return Bond VIF 00-0000000
Exh. A-1
EXHIBIT B
APPROVED BORROWERS
THE FOLLOWING ENTITIES ARE PRE-APPROVED AS "BORROWERS" PURSUANT TO SECTION 1(A)
OF THE AGREEMENT UNLESS THE CUSTOMER PLACES AN "X" ON THE LINE ACROSS FROM A
BORROWER NAME.
ABN Amro Bank N.V. New York Branch ______________________
ABN Amro Incorporated ______________________
Ameritrade Clearing ______________________
Bank of America Securities, LLC ______________________
Barclays Capital Inc. ______________________
Bear, Xxxxxxx and Co. Inc. ______________________
Bear, Xxxxxxx Securities Corp. ______________________
BNP Paribas Securities Corp. ______________________
Calyon Securities (USA) Inc. ______________________
Cantor Xxxxxxxxxx Securities ______________________
CIBC World Markets ______________________
Citadel Trading Group, LLC ______________________
Citigroup Global Markets, Inc. ______________________
Credit Suisse Securities (USA) LLC ______________________
Deutsche Bank NA ______________________
Deutsche Bank Securities, Inc. ______________________
Dresdner Kleinwort Xxxxxxxxxxx Securities, LLC ______________________
Xxxxxxx, X.X. Inc. ______________________
First Clearing, LLC (Wachovia Corp.) ______________________
Fortis Securities, LLC ______________________
Xxxxxxx Sachs & Co., Incorporated ______________________
RBS Greenwich Capital, Inc. ______________________
HSBC Securities (USA), Inc. ______________________
ING Financial Markets, LLC ______________________
Xxxxxxxxx & Company, Inc. ______________________
Xxxxxx Brothers, Inc. ______________________
Xxxxxxx Xxxxx Government Securities Inc. ______________________
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Inc. ______________________
Xxxxxx Xxxxxxx & Co., Inc. ______________________
X.X. Xxxxxx Securities, Inc. ______________________
X.X. Xxxxxx Xxxxx Bank ______________________
Paloma Securities, LLC ______________________
Xxxxxxx Xxxxx & Associates, Incorporated ______________________
RBC Xxxx Xxxxxxxx ______________________
RBC Capital Markets Corporation ______________________
SG Americas Securities, LLC ______________________
Societe Generale, New York Branch ______________________
Swiss American Securities, Incorporated ______________________
UBS Financial Services ______________________
UBS Securities LLC ______________________
Wachovia Bank NA ______________________
Wachovia Securities, Inc. ______________________
PLEASE INITIAL HERE TO APPROVE BORROWERS __________
Exh. A-1
EXHIBIT B
LOAN FEE SCHEDULE
The Bank shall be paid a fee for administering the securities lending program
for the Customer. The fee shall be calculated daily by the Bank against the Net
Income earned by the Customer on such day. The fee shall equal 25 percent (25%)
of Net Income and shall be retained monthly by the Bank out of the Customer's
aggregate Net Income for such month, provided, however, that if the fee is not
so retained, the Customer shall pay such fee upon request from the Bank.
CUSTOMER INFORMATION SHEET
Please provide the Bank with the following information:
Name: ______________________________________________________________
Tax identification number: _________________________________________
Principal place of business: _______________________________________
State and nation of incorporation or organization: _____________________________
Address (or the address of
your registered agent) within
state of incorporation or organization: ________________________________________
Please select ONE (and only one) of the following two series of the Mount Xxxxxx
Securities Lending Trust in which you wish the Bank to invest Cash Collateral
(each series is described more fully in such series' respective Offering
Memorandum):
[ ] Short-Term Bond Portfolio [ ] Prime Portfolio
(IF YOU FAIL TO SELECT EITHER OF THE SERIES ABOVE, OR IF YOU SELECT BOTH OF THE
SERIES ABOVE, THE BANK WILL BE UNABLE TO LEND YOUR SECURITIES.)
Please set forth below the name of each entity which owns, controls or possesses
securities which may be lent pursuant to the Customer Agreement and the tax
identification number of such entity (attach additional pages if necessary):
NAME TAX ID
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