SECURITIES LENDING AGREEMENT AND GUARANTY
AGREEMENT, dated as of March ___, 2002 between The GCG Trust ("Lender"),
and The Bank of New York ("Bank").
ARTICLE I
DEFINITIONS
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Whenever used in this Agreement, unless the context otherwise requires, the
following words shall have the meanings set forth below:
1. "Act of Insolvency" shall mean (i) the filing by a Borrower of a
petition in bankruptcy or a petition seeking reorganization, liquidation or
similar relief, or the filing of any such petition against a Borrower which is
not dismissed or stayed within 60 calendar days, (ii) the adjudication of a
Borrower as bankrupt or insolvent, (iii) the seeking or consenting to the
appointment of a trustee, receiver or liquidator by a Borrower, or (iv) the
making of a general assignment for the benefit of creditors by a Borrower or a
Borrower's admission in writing of its inability to pay its debts as they become
due.
2. "Account" shall mean the custodial account established and maintained
by Bank on behalf of Lender for the safekeeping of Securities and monies
received by Bank from time to time.
3. "Approved Investment" shall mean any type of security, instrument,
participation or interest in property, as set forth on Schedule I hereto (which
may be amended from time to time by execution of a revised Schedule I, I-A or
I-B) in which Cash Collateral may be invested or reinvested by Bank in
accordance with Paragraph 2 of Article IV hereof.
4. "Authorized Person" shall mean any officer of Lender and any other
person, whether or not any such person is an officer or employee of Lender, duly
authorized by corporate resolutions of the Board of Trustees of Lender to give
Oral and/or Written Instructions on behalf of Lender, such persons to be
designated in a Certificate which contains a specimen signature of such person.
5. "Book-Entry System" shall mean the Federal Reserve/Treasury Automated
book-entry system for receiving and delivering Government Securities (as defined
herein), its successors and nominees.
6. "Borrower" shall mean any entity named on a Certificate supplied by
Lender to Bank (as such Certificate may be amended by Lender from time to time),
other than any entity deleted from such Certificate by Bank.
7. "Business Day" shall mean any day on which Bank is open for business
and on which the Book-Entry System and/or the applicable Depositories are open
for business.
8. "Cash Collateral" shall mean either fed funds or New York Clearing
House funds, as applicable for a particular Loan.
9. "Certificate" shall mean any notice, instruction, schedule or other
instrument in writing, authorized or required by this Agreement to be given to
Bank, which is actually received by Bank and signed on behalf of Lender by an
Authorized Person or a person reasonably believed by Bank to be an Authorized
Person.
10. "Collateral" shall mean Government Securities and/or Cash Collateral.
11. "Collateral Account" shall mean a segregated account in the name of
Lender established and maintained by Bank for the purpose of holding Collateral,
Approved Investments and Proceeds.
12. "Collateral Requirement" shall mean with respect to Loans an amount
equal to 102% of the then current Market Value of Loaned Securities which are
the subject of Loans as of the close of trading on the preceding Business Day.
13. "Depository" shall mean the Depository Trust Company, Participants
Trust Company and any other securities depository or clearing agency (and their
respective successors and nominees) registered with the Securities and Exchange
Commission or otherwise authorized to act as a securities depository or clearing
agency.
14. "Distributions" shall mean interest, dividends and other payments and
distributions payable by Borrowers to Bank for the account of Lender pursuant to
the Securities Borrowing Agreement with Bank in respect of Loaned Securities.
15. "Government Security" shall mean securities that are both (a)
book-entry Treasury Securities (as defined in 31 C.F.R. Part 357.2) or any other
securities issued or fully guaranteed by the United States government or an
agency, instrumentality or establishment of the United States government and (b)
marked with a "YES" on Schedule I-B hereto.
16. "Loan" shall mean a loan of Securities hereunder.
17. "Loaned Security" shall mean any Security which is subject to a Loan.
18. "Market Value" shall mean (a) with respect to Government Securities,
the price of such Securities as quoted by a nationally recognized pricing
information service at the time the determination of Market Value is made, plus
accrued but unpaid interest, if any, on the particular Security, (b) with
respect to other Securities, the price of such Securities as quoted by a
nationally recognized pricing information service at the time such determination
is made, plus accrued but unpaid interest, if any, to the extent not included in
the price as quoted, and (c) with respect to Cash Collateral, its amount.
Notwithstanding the foregoing, Lender may dispute any such price, in which case
Lender and Bank will negotiate an adjustment (if appropriate).
19. "Oral Instructions" shall mean verbal instructions actually received
by Bank from an Authorized Person or from a person reasonably believed by Bank
to be an Authorized Person.
20. "Proceeds" shall mean any interest, dividends and other payments and
distributions received by Bank in respect of Collateral and Approved
Investments.
21. "Rebate" shall mean the amount payable by Lender to a Borrower in
connection with Loans at any time collateralized by Cash Collateral.
22. "Receipt" shall mean an advice or confirmation setting forth the terms
of a particular Loan.
23. "Securities Borrowing Agreement" shall mean the agreement pursuant to
which Bank lends securities to a Borrower on behalf of its customers (including
Lender) from time to time.
24. "Securities Loan Fee" shall mean the amount payable by a Borrower to
Bank pursuant to the Securities Borrowing Agreement in connection with Loans
collateralized by Collateral other than Cash Collateral.
25. "Security" shall include Government Securities, common stock and other
equity securities, bonds, debentures, corporate debt securities, notes,
mortgages or other obligations, and any certificates, warrants or other
instruments representing rights to receive, purchase, or subscribe for the same,
or evidencing or representing any other rights or interests therein.
26. "Written Instructions" shall mean written communications actually
received by Bank from an Authorized Person or from a person reasonably believed
by Bank to be an Authorized Person by letter, memorandum, telegram, cable,
telex, telecopy, facsimile, computer, video (CRT) terminal or other on-line
system, or any other method whereby Bank is able to verify with a reasonable
degree of certainty the identity of the sender of such communications or the
sender is required to provide a password or other identification code.
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ARTICLE II
APPOINTMENT OF BANK; SCOPE OF AGENCY AUTHORITY
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1. APPOINTMENT. Subject to the limitations contained in Schedule II
hereto, as such schedule II may be amended by Lender from time to time, Lender
hereby appoints Bank as its agent to lend Securities in the Account to Borrowers
from time to time, except Securities which Lender has advised Bank by Written
Instruction are (a) no longer subject to the representations set forth in
Article III, sub-paragraph (e) hereof, or (b) not to be the subject of a Loan
hereunder. Bank hereby accepts appointment as such agent, agrees to so act, and
further agrees that Lender may deliver Written Instructions described in the
immediately preceding sentence in its discretion from time to time.
2. SECURITIES BORROWING AGREEMENT. Lender hereby acknowledges receipt of
Bank's standard form(s) of Securities Borrowing Agreement and authorizes Bank to
lend Securities in the Account to Borrowers pursuant to agreements substantially
in the form thereof. Bank is hereby authorized to negotiate with each Borrower
the amount of Rebates payable in connection with particular Loans. Bank shall
deliver to Lender a Receipt relating to each Loan.
3. LOAN OPPORTUNITIES. Bank shall treat Lender equitably with other
lenders of like circumstances in making lending opportunities available to it
hereunder, taking into account the demand for specific securities, availability
of securities, types of collateral, eligibility of borrowers, limitations on
investments of cash collateral and such other factors as Bank deems appropriate.
Bank shall nevertheless have the right to decline to make any Loans pursuant to
any Securities Borrowing Agreement and to discontinue lending under any
Securities Borrowing Agreement in its sole discretion and without notice to
Lender.
4. USE OF BOOK-ENTRY SYSTEM AND DEPOSITORIES. Lender hereby authorizes
Bank on a continuous and on-going basis, to deposit in the Book-Entry System and
the applicable Depositories all Securities eligible for deposit therein and to
utilize the Book-Entry System and Depositories to the extent possible in
connection with its receipt and delivery of Securities, Collateral, Approved
Investments and monies under this Agreement. Where Securities, Collateral and
Approved Investments eligible for deposit in the Book-Entry System or a
Depository are transferred to Lender hereunder, Bank shall identify as belonging
to Lender a quantity of securities in a fungible bulk of securities shown on
Bank's account on the books of the Book-Entry System or the applicable
Depository. Securities, Collateral and Approved Investments deposited in the
Book-Entry System or a Depository will be represented in accounts which include
only assets held by Bank for customers, including but not limited to accounts in
which Bank acts in a fiduciary or agency capacity.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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Lender hereby represents and warrants to Bank, which representations and
warranties shall be deemed to be continuing and to be reaffirmed on any day that
a Loan is outstanding, that:
(a) This Agreement is, and each Loan entered into in accordance with this
Agreement, and each investment or reinvestment of Cash Collateral by
Bank in accordance with Paragraph 2 of Article IV hereof, will be,
legally and validly entered into, does not, and will 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, and is enforceable against Lender in
accordance with its terms, except as may be limited by bankruptcy,
insolvency or similar laws, or by equitable principles relating to or
limiting creditors' rights generally;
(b) The person executing this Agreement and all Authorized Persons acting
on behalf of Lender has and have been duly and properly authorized to
do so;
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(c) If it is lending Securities as principal for its own account it will
not transfer, assign or encumber its interest in, or rights with
respect to, any Loans;
(d) If it is acting as agent for one or more third parties, Lender is
either authorized by virtue of standing instructions or is a fiduciary
with the authority to enter into, execute and bind such third parties
to this Agreement and the Loans effected for such third parties, and
Lender is authorized to make, and makes each of the representations
and warranties set forth in sub-paragraphs (a) through (c) above for
each such third party; and
(e) All Securities in the Account are free and clear of all liens, claims,
security interests and encumbrances and no such Security has been
sold. Lender shall promptly deliver to Bank Written Instructions
identifying any and all Securities which are no longer subject to the
representations contained in this sub-paragraph (e).
ARTICLE IV
SECURITIES LENDING TRANSACTIONS
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1. GENERAL BANK RESPONSIBILITIES. Bank shall enter Loans pursuant to the
Securities Borrowing Agreement and take all actions deemed necessary or
appropriate in order to perform on Lender's behalf thereunder, including
receiving Collateral having a Market Value of not less than the Collateral
Requirement, collecting Distributions, and demanding additional Collateral from
the appropriate Borrowers when the Market Value of Collateral received by Bank
from such Borrowers is less than the then current Market Value of all of the
Loaned Securities. The Bank shall on each Business Day xxxx to market the value
of all Loaned Securities and demand from each Borrower additional Collateral
when the Market Value of Collateral received by Bank from such Borrower is less
than the current Market Value of all Loaned Securities loaned to such Borrower.
Whenever Bank demands additional Collateral pursuant to the foregoing, such
additional Collateral together with the Collateral then held by Bank in
connection with Loans shall have a Market Value of not less than the Collateral
Requirement.
2. APPROVED INVESTMENTS. (a) Bank is hereby authorized and directed,
without obtaining any further approval from Lender, to invest and reinvest all
or substantially all of the Cash Collateral received in any Approved Investment
in accordance with the priorities set forth in Schedule I hereto (which may be
amended from time to time by execution by Lender of a revised Schedule I, I-A or
I-B). If during a Business Day an officer or employee in New York of the
security lending department of Bank obtains actual knowledge that a rating(s) or
an Approved Investment is less than the minimum ratings specified in Schedule I,
Bank shall promptly give notice of such rating(s) to Lender. Bank shall credit
all Collateral, Approved Investments and Proceeds received with respect to
Collateral and Approved Investments to the Collateral Account and xxxx its books
and records to identify Lender's interest therein as appropriate. Bank reserves
the right, in its sole discretion, to liquidate any Approved Investment and
credit the net proceeds to the Collateral Account.
(b) Lender may deliver to Bank Written Instructions from time to time
instructing Bank not to make Approved Investments with particular
financial institutions or issuers.
(c) All Approved Investments shall be for the account and risk of Lender.
To the extent any loss arising out of Approved Investments results in
a deficiency in the amount of Collateral available for return to a
Borrower, Lender agrees to pay Bank on demand cash in an amount equal
to such deficiency.
(d) Except as otherwise provided herein, all Collateral, Approved
Investments and Proceeds credited to the Collateral Account shall be
controlled by, and subject only to the instructions of, Bank, and Bank
shall not be required to comply with any instructions of Lender with
respect to the same, except that if Bank has advised Lender that an
Approved Investment has a rating lower than the rating required by
Schedule I, Bank shall liquidate such Approved Investment upon receipt
of Written or Oral Instruction instructing Bank to do so.
(e) Bank shall not purchase any Approved Investment from an entity
identified by Lender as an affiliate in Written Instructions actually
received by Bank.
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3. TERMINATION OF LOANS. (a) Bank shall terminate any Loan as soon as
practicable after:
(i) receipt by Bank of a notice of termination from a Borrower;
(ii) receipt by Bank of Oral or Written Instructions to do so;
(iii) receipt by Bank of Written Instructions instructing it to delete the
Borrower to whom such Loan was made from the list referred to in
Article I, paragraph 6 hereof;
(iv) receipt by Bank of Written Instructions described in Paragraph I of
Article II hereof advising that the Loaned Security is no longer
subject to the representations contained in Article III,
sub-paragraph (e) hereof; or is not to be the subject of a Loan
hereunder;
(v) receipt by Bank of notice or Written Instructions advising that an
Event of Default (as defined in the Securities Borrowing Agreement)
has occurred and is continuing beyond any applicable grace period;
(vi) whenever Bank, in its sole discretion, elects to terminate such Loan;
or
(vii) termination of this Agreement.
Unless otherwise agreed between Bank and Lender, Bank will ensure that if
it receives on a Business Day prior to 12:30 p.m. N.Y. time Oral or Written
Instructions to terminate a Loan, Bank shall send a notice on the same Business
Day to Borrower terminating such Loan and requiring Borrower to return the
Loaned Securities within the standard settlement time for trades in the
particular Loaned Security (never to exceed 5 Business Days) beginning on the
date Bank is required to send a notice of termination. If the Oral or Written
Instructions to terminate a Loan are received by Bank on a Business Day after
12:30 p.m. N.Y. time but prior to 2:00 p.m., Bank shall use reasonable care to
send the notice of termination to Borrower on the same date Bank received such
Oral or Written Instructions; if such Oral or Written Instructions are received
after 2:00 p.m. Bank need not send to Borrower a notice terminating the Loan
until the next Business Day.
(b) Upon termination of any Loan (which shall be effected according to the
standard settlement time for trades in the particular Loaned Security,
never to exceed 5 Business Days) and receipt from the Borrower of the
Loaned Securities and any Distributions then due, Bank shall return to
the Borrower such amount of Collateral as is required by the
Securities Borrowing Agreement and pay the Borrower any Rebates then
payable.
(c) In order for Bank to timely settle the sale of Loaned Securities, it
shall be Lender's responsibility to ensure prompt notification to Bank
regarding any such sale specifying the settlement date therefor. If
Lender provides such prompt notification to Bank, Bank shall pay to
Lender an amount equal to any interest expense incurred by Lender
which is directly attributable to the failure of a Borrower to return
Loaned Securities on or prior to the settlement date of such sale
specified in such notification.
1. GUARANTEE AND SUBROGATION. (a) If as a result of an Act of Insolvency
or for any other reason a Borrower fails to return any Loaned Securities or any
other Distributions due when required, Bank shall take all actions which it
deems necessary or appropriate to liquidate Approved Investments and Collateral
in connection with Loans to such Borrower and, unless advised by Lender to the
contrary, shall make a reasonable effort for two Business Days (the "Replacement
Period") to apply the proceeds thereof to the purchase of Securities identical
to the Loaned Securities and non-cash Distributions (or the equivalent thereof
in the event of a reorganization or recapitalization of the issuer) not returned
(collectively, "Replacement Securities") and to the payment of any cash
Distributions then due. If during the Replacement Period the Collateral
liquidation proceeds are insufficient to replace any of the Loaned Securities
and any Distributions then due, Bank shall, subject to satisfaction of Lender's
obligations under paragraph 2(c) of this Article, pay such additional amounts as
are necessary to make such replacement or payment. Purchases of Replacement
Securities by Bank shall be made only in such markets, in such manner and upon
such terms as Bank shall consider appropriate in its reasonable discretion.
Replacement Securities shall be credited to the Account upon receipt by Bank. If
Bank is unsuccessful in purchasing any Replacement Securities during the
Replacement Period, the proceeds of the liquidation of Approved Investments and
Collateral pursuant hereto shall be credited to the Account, and Bank shall,
subject to satisfaction of Lender's obligations under Paragraph 2(c) of this
Article, credit to the Account cash in an amount (if any) equal to (X) the
Market Value of the Loaned Securities and Distributions not returned, minus (Y)
the Collateral liquidation proceeds, such
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calculation to be made on the date of such credit. If following such crediting
Lender purchases Replacement Securities within five Business Days of such
crediting in the principal market, if any, in which the Securities regularly
trade, or from any dealer who from time to time is an Approved Borrower under
this Agreement or a similar agreement with Bank, the price paid by Lender on
settlement of such purchase shall be deemed the Market Value for purposes of the
prior sentence, and Bank shall adjust its credit to the Account accordingly. If
Lender is unsuccessful in so purchasing any Replacement Securities during such
five Business Day period following such crediting, Bank shall promptly purchase
Replacement Securities upon its receipt from Lender of the following: (i)
Written Instructions directing Bank to make such purchase, (ii) an amount equal
to any unsatisfied demands previously made by the Bank pursuant to Paragraph
2(c) of this Article, and (iii) an amount equal to the sum of (A) the Collateral
liquidation proceeds credited to the Account and (B) any additional amounts
credited to the Account pursuant to the second preceding sentence of this
Paragraph, exclusive of cash Distributions not returned. In addition to any
other amounts payable pursuant to this Paragraph 4(a), Bank shall pay to Lender
the following amounts that are directly attributable to the failure of a
Borrower to return any Loaned Securities and/or Distributions when required: (i)
any interest expense incurred by Lender, (ii) any buy-in-costs or buy-in
expenses actually incurred, and (iii) the loss incurred by Lender on any
cancelled sale of Loaned Securities and/or Distributions.
(b) Lender understands and agrees that, notwithstanding preceding
Paragraph 4(a), if a Borrower fails to return Loaned Securities or any
Distributions for reasons other than an Act of Insolvency, Bank may,
in its reasonable discretion, elect not to liquidate Approved
Investments and such Approved Investments shall continue to be subject
to Paragraph 2(c) of this Article. Bank shall be responsible to Lender
for the Market Value of the Loaned Securities and Distributions as of
the settlement date specified by Bank in its notice of termination in
accordance with the Securities Borrowing Agreement, and, except to the
extent caused by Lender's failure to provide Bank prompt notification
pursuant to Paragraph 3(c) of Article IV, in addition, Bank shall pay
to Lender the following amounts that are directly attributable to the
failure of a Borrower to return any Loaned Securities and/or
Distributions when required: (i) any interest expense incurred by
Lender, (ii) any buy-in-costs or buy-in-expenses actually incurred,
and (iii) the loss incurred by Lender on any cancelled sale of Loaned
Securities and/or Distributions.
(c) Lender agrees, without the execution of any documents or the giving of
any notice, that Bank is and will remain subrogated to all of Lender's
rights under the Securities Borrowing Agreement or otherwise (to the
extent of any credit pursuant to Paragraphs 4(a) or 4(b) of this
Article), including but not limited to, Lender's rights with respect
to Loaned Securities and Distributions, and Collateral, Approved
Investments and Proceeds. Lender agrees to execute and deliver to Bank
such documents as Bank may require and to otherwise fully cooperate
with Bank to give effect to its rights of subrogation hereunder.
(d) Bank shall have no obligation to take any actions pursuant to
Paragraphs 4(a) or 4(b) of this Article if it believes that such
action will violate any applicable statute, regulation, rule, order or
judgment. Furthermore, except as expressly provided in Paragraphs 4(a)
and 4(b) of this Article, Bank shall have no other liability to Lender
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 Securities Borrowing
Agreement.
(e) Either party may terminate the provisions of Paragraphs 4(a) or 4(b)
of this Article with respect to any Borrower at any time by delivery
of a notice to the other party specifying a termination date not
earlier then the date of receipt of such notice by the other party. No
such termination shall be effective with respect to then existing
rights or obligations of either party under this Paragraph 4 or
outstanding Securities Loans hereunder. Following any such termination
with respect to a Borrower, Bank shall not make any further Loans to
such Borrower.
(f) Bank may offset any amounts payable by Lender under this Agreement
against amounts payable by Bank under paragraph 4(a) or 4(b) of this
Article.
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ARTICLE V
CONCERNING BANK
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1. STANDARD OF CARE; REIMBURSEMENT. (a) Except as provided in Paragraph
1(b) of this Article, Bank shall not be liable for any costs, expenses, damages,
liabilities or claims (including attorneys' and accountants' fees) incurred by
Lender, except those costs, expenses, damages, liabilities or claims arising out
of the negligence or willful misconduct of Bank, its directors, officers,
employees, affiliates or agents. Actions taken or omitted in reliance upon Oral
or Written Instructions, any Certificate, or upon any information, order,
indenture, stock certificate, power of attorney, assignment, affidavit or other
instrument delivered by Lender to Bank hereunder and reasonably believed by Bank
to be genuine or bearing the signature of a person or persons reasonably
believed to be authorized to sign, countersign or execute the same as an
Authorized Person, shall be presumed to have been taken or omitted in good
faith. Bank shall have no obligation hereunder for costs, expenses, damages,
liabilities or claims (including attorneys' and accountants' fees), which are
sustained or incurred by reason of any action or inaction by the Book-Entry
System or any Depository or their respective successors or nominees. Except as
otherwise expressly provided in Paragraph 4 of Article IV, in no event shall
either party be liable to the other 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.
(b) In the event Bank fails to invest any Cash Collateral that is timely
received, or fails to reinvest any Cash Collateral, and such failure
is not caused by circumstances described in Paragraph 12 of this
Article, Bank shall be liable to Lender for each day during which such
failure persists for an amount of liquidated damages equal to the
difference between the average money market rate as reasonably
determined by Bank minus the Rebate.
(c) Subject to sub-paragraph (a) of this Paragraph 1, Bank agrees to
reimburse Lender and to hold it harmless from and against any and all
costs, expenses, damages, liabilities or claims, including reasonable
fees and expenses of counsel, which Lender may sustain or incur or
which may be asserted against Lender by reason or as a result of, or
arising out of, any breach by Bank of this Agreement, provided,
however, that Bank shall not indemnify Lender for any costs, expenses,
liabilities or claims, including fees and expenses of counsel, arising
out of Lender's negligence or willful misconduct. The foregoing shall
be a continuing obligation of Bank, its successors and assigns,
notwithstanding the termination of any Loans hereunder or of this
Agreement.
(d) Subject to the exclusion of special, indirect and consequential
damages contained in sub-paragraph (a) of this Paragraph 1, Lender
agrees to reimburse Bank and to hold it harmless from and against any
and all costs, expenses, damages, liabilities or claims, including
reasonable fees and expenses of counsel, which Bank may sustain or
incur or which may be asserted against Bank by reason or as a result
of, or arising out of, any breach by Lender of this Agreement,
including, without limitation, any representation or warranty of
Lender being untrue, provided, however, that Lender shall not
indemnify Bank for any costs, expenses, liabilities or claims,
including fees and expenses of counsel, arising out of Bank's
negligence or willful misconduct. The foregoing shall be a continuing
obligation of Lender, its successors and assigns, notwithstanding the
termination of any Loans hereunder or of this Agreement.
2. NO OBLIGATION TO INQUIRE. Without limiting the generality of the
foregoing, Bank shall be under no obligation to inquire into, and shall not be
liable for, the validity of the issue of any Securities, Collateral or Approved
Investments held in the Account or Collateral Account, or the legality or
propriety of any Loans hereunder.
3. RELIANCE ON BORROWERS' STATEMENTS, REPRESENTATIONS AND WARRANTIES.
Provided that it acts with reasonable care, Bank shall be entitled to rely upon
the most recently available audited and unaudited statements of financial
condition and representations and warranties made by Borrowers, and Bank shall
not be liable for any loss or damage suffered as a result of any such reliance.
4. ADVANCES; SECURITY INTEREST. (a) Bank may, in its sole discretion,
advance funds to Lender in order to pay to Borrowers any Rebates or to return to
Borrowers Cash Collateral to which they are entitled.
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(b) Lender agrees to repay Bank on demand the amount of any advance plus
accrued interest at a rate per annum (based on a 360-day year for the
actual number of days involved) not to exceed the fed funds rate as
publicly announced to be in effect from time to time, such rate to be
adjusted on the effective date of any change in such fed funds rate.
In order to secure repayment of any advance of Lender arising
hereunder, Lender hereby agrees that Bank shall have a continuing lien
and security interest in and to all assets now or hereafter held in
the Collateral Account (held on Lender's behalf). In this regard, Bank
shall be entitled to all the rights and remedies of a pledgee under
common law and a secured party under the New York Uniform Commercial
Code and/or any other applicable laws and/or regulations as then in
effect.
5. ADVICE OF COUNSEL. Bank may, with respect to questions of law, apply
for and obtain the advice and opinion of counsel and shall be fully protected
with respect to anything done or omitted by it in good faith in conformity with
such advice or opinion.
6. NO COLLECTION OBLIGATIONS. Bank shall be under no obligation or duty
to take action to effect collection of, or be liable for, any amounts payable in
respect of Securities or Approved Investments if such Securities or Approved
Investments are in default, or if payment is refused after due demand and
presentation.
7. PRICING SERVICES. Bank is authorized to utilize any nationally
recognized pricing information service in order to perform its valuation
responsibilities with respect to Loaned Securities, Collateral and Approved
Investments. Lender shall have the right to dispute any such price, and Lender
and Bank shall negotiate an adjustment (if appropriate).
8. AGENT'S FEE. For its performance as Lender's agent in making and
administering Loans, Lender shall pay to Bank a fee, accrued daily, equal to 30%
of the sum of all interest, dividends and other distributions earned from
Approved Investments net of Rebates paid by Bank to relevant Borrowers and net
of brokerage commissions, if any, incurred in making Approved Investments, and
including any amounts paid to Lender as liquidated damages by Bank pursuant to
Paragraph 1(b) of this Article. Bank is authorized, on a monthly basis, to
charge its fees against the Collateral Account. In the event that on a calendar
month basis the amount of such interest, dividends and other distributions
earned from Approved Investments are, net of brokerage commissions incurred in
making Approved Investments, less than the amount of any Rebate owed any
Borrower, Bank and Lender shall pay, respectively, 30% and 70% of such
deficiency.
9. RELIANCE ON CERTIFICATES AND INSTRUCTIONS. Bank shall be entitled to
rely upon any Certificate, Written or Oral Instruction actually received by Bank
and reasonably believed by Bank to be duly authorized and delivered. Lender
agrees to forward to Bank Written Instructions confirming Oral Instructions in
such manner so that such Written Instructions are received by Bank by the close
of business of the same day that such Oral Instructions are given to Bank.
Lender and Bank agree that the fact that such confirming Written Instructions
are not received or that contrary instructions are received by Bank shall in no
way affect the validity or enforceability of (a) the transactions authorized by
Lender by Oral Instructions, or (b) any obligation of Bank to act upon Oral
Instructions under the terms of this Agreement (to the extent that contrary Oral
or Written Instructions are not received by Bank). In this regard, the records
of Bank shall be presumed to reflect accurately any Oral Instructions given by
an Authorized Person or a person believed by Bank to be an Authorized Person.
10. DISCLOSURE OF ACCOUNT INFORMATION. It is understood and agreed that
Bank is authorized to supply any information regarding the Account or Collateral
Account which is required by any statute, regulation, rule or order now or
hereafter in effect. If Bank is required to provide any such information to any
person, Bank shall use its best efforts to notify Lender in advance in order to
permit Lender to raise any reasonable objection to disclosure that may be
available to it.
11. STATEMENTS. Bank will at least monthly furnish Lender with statements
relating to Loans hereunder, which statements shall include such information as
Lender may reasonably request.
12. FORCE MAJEURE. Bank shall not be responsible or liable for any failure
or delay in the performance of its obligations under this Agreement arising out
of or caused, directly or indirectly, by circumstances beyond its control,
including without limitation, acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; epidemics; riots; interruptions, loss
or malfunctions of utilities, transportation, computer (hardware or
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software) or communications service; accidents; labor disputes; acts of civil or
military authority; governmental actions; or inability to obtain labor,
material, equipment or transportation.
13. NO IMPLIED DUTIES. Bank shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement, and no covenant or obligation shall be implied against Bank
in connection with this Agreement.
ARTICLE VI
TERMINATION
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This Agreement may be terminated at any time by either party upon delivery
to the other party of a written notice specifying the date of such termination,
which shall be not less than 90 days after the date of receipt of such notice.
Notwithstanding any such notice, this Agreement shall continue in full force and
effect with respect to all Loans outstanding on the date of termination.
ARTICLE VII
MISCELLANEOUS
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1. EXCLUSIVITY. Lender agrees that it shall not enter into any other
agreement with any third party whereby such third party is permitted to make
loans on behalf of Lender of Securities held by Bank from time to time, until
after Lender has given a notice to Bank terminating this Agreement.
2. CERTIFICATES. Lender agrees to furnish to Bank a new Certificate in
the event that any present Authorized Person ceases to be an Authorized Person
or in the event that any other Authorized Persons are appointed and authorized.
Until such new Certificate is received, Bank shall be fully protected in acting
upon Oral Instructions or signatures of the present Authorized Persons.
3. NOTICES. (a) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to Bank, shall be sufficiently given if
addressed to Bank and received by it at its offices at 00 Xxx Xxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Securities Lending Division, or at such
other place as Bank may from time to time designate in writing.
(b) Any notice or other instrument in writing, authorized or required by
this Agreement to be given to Lender shall be sufficiently given if
addressed to Lender and received by it at its office at 0000 Xxxxxxxx
Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000 Attention: Chief Counsel, or
at such other place as Lender may from time to time designate in
writing.
4. CUMULATIVE RIGHTS AND NO WAIVER. Each and every right granted to a
party hereunder or under any other document delivered hereunder or in connection
herewith, or allowed it by law or equity, shall be cumulative and may be
exercised from time to time. No failure on the part of a party to exercise, and
no delay in exercising, any right will operate as a waiver thereof, nor will any
single or partial exercise by a party of any right preclude any other or future
exercise thereof or the exercise of any other right.
5. SEVERABILITY. In case any provision in or obligation under this
Agreement, other than Lender's obligation with respect to Approved Investments
contained in Paragraph 2(c) of Article IV hereof or Bank's obligations under
Paragraphs 4(a) and (b) of Article IV hereof, shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations shall not in any way be affected or
impaired thereby, and if any provision, other than Lender's obligation with
respect to Approved Investments contained in Paragraph 2(c) of Article IV hereof
or Bank's obligations under Paragraphs 4(a) and (b) of Article IV hereof is
inapplicable to any person or circumstances, it shall nevertheless remain
applicable to all other persons and circumstances.
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6. ENTIRE AGREEMENT; AMENDMENTS. This Agreement represents the entire
understanding of the parties hereto with regard to the subject matter contained
herein and may not be amended or modified in any manner except by a written
agreement executed by both parties, except that Schedules I (including Schedules
I-A and I-B thereto) and II may be amended by Lender executing a revised
schedule I, I-A, I-B or II, as the case may be, and such amendment shall become
effective upon receipt by Bank of such executed revised schedule.
7. SUCCESSORS AND ASSIGNS. This Agreement shall extend to and shall be
binding upon the parties hereto, and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by either party
without the written consent of the other. Bank may not delegate or assign any of
its duties hereunder without the written consent of Lender.
8. GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF IMMUNITY; JURY TRIAL
WAIVER. This Agreement shall be construed in accordance with the laws of the
State of New York, without regard to conflict of laws principles thereof. Lender
hereby consents to the jurisdiction of a state or federal court situated in New
York City, New York in connection with any dispute arising hereunder. 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 irrevocably agrees not
to claim, and it hereby waives, such immunity. Each party hereby waives its
right to a trial by jury.
9. NO THIRD PARTY BENEFICIARIES. In performing hereunder, Bank is acting
solely on behalf of Lender and no contractual or service relationship shall be
deemed to be established hereby between Bank and any other person.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
11. SIPA NOTICE. THE PROVISIONS OF THE SECURITIES INVESTOR PROTECTION ACT
OF 1970 MAY NOT PROTECT LENDER WITH RESPECT TO LOANS HEREUNDER AND, THEREFORE,
THE COLLATERAL DELIVERED TO BANK AS AGENT FOR LENDER MAY CONSTITUTE THE ONLY
SOURCE OF SATISFACTION OF A BORROWER'S OBLIGATION IN THE EVENT SUCH BORROWER
FAILS TO RETURN THE LOANED SECURITIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officers, thereunto duly authorized, as
of the day and year first above written.
THE GCG TRUST
By:
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Name: Xxxxxxxxxxx X. Xxxxxx
Title: Treasurer
THE BANK OF NEW YORK
By:
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Name:
Title:
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