EXHIBIT (h.12)
SECURITIES LENDING AGENCY AGREEMENT
BETWEEN
INVESTORS BANK & TRUST COMPANY
AND
PORTFOLIO PARTNERS, INC.
SECURITIES LENDING AGENCY AGREEMENT
AGREEMENT, dated as of May 1, 2002, between Portfolio Partners, Inc.,
on behalf of the Portfolios listed on Schedule A, (the "Lender"), and Investors
Bank & Trust Company, a trust company organized and existing under the laws of
the Commonwealth of Massachusetts (the "Bank").
WHEREAS, the Bank currently acts as custodian for securities held by it
in the Account (as defined below) from time to time on behalf of the Lender; and
WHEREAS, the Lender desires to appoint the Bank as its agent for the
purpose of lending securities in the Account as more fully set forth below; and
WHEREAS, the Bank has agreed to act as the Lender's agent for such
purpose pursuant to the terms hereof;
NOW, THEREFORE, for and in consideration of the mutual promises set
forth herein, the parties hereto agree as follows:
1. Definitions.
Whenever used in this Agreement, unless the context otherwise requires,
the following words shall have the meanings set forth below. Capitalized terms
used but not defined herein shall have the meaning assigned to them in the
applicable Securities Borrowing Agreement.
1.1 "Account" shall mean the custodial account or accounts established
and maintained by the Bank on behalf of the Lender for the safekeeping of
securities and monies received by the Bank from time to time.
1.2 "Approved Investment" shall mean any type of security,
participation or interest in property in which Cash Collateral may be invested
or reinvested, as set forth on Schedule I hereto (which may be amended from time
to time to add additional Approved Investments with the written consent of the
Bank and the Lender, or to delete any Approved Investment at the written
direction of the Lender).
1.3 "Authorized Person" shall be any officer of the Lender and any
other person, whether or not any such person is an officer or employee of the
Lender, duly authorized by corporate resolutions of the Board of Directors or
Trustees, as the case may be, of the Lender to give Oral and/or Written
Instructions on behalf of the Lender, such persons to be designated in a
Certificate which contains a specimen signature of such person.
1.4 "Book-Entry System" shall mean the Federal Reserve/Treasury
book-entry system for receiving and delivering Government Securities (as defined
herein), its successors and nominees.
1.5 "Borrower" shall mean any entity named on Schedule II hereto (as
such Schedule may be amended from time to time to add additional Borrowers with
the written consent of the Bank and the Lender, or to delete any Borrower at the
written direction of the Lender) or any affiliate of such named entity. The
Lender will promptly notify the Bank if at any time:
(a) any potential Borrower which is a broker-dealer registered
under the Securities Exchange Act of 1934 (the "1934 Act"), a broker-dealer
exempted from registration under Section 15(a)(1) of the 1934 Act as a dealer of
exempted Government securities, or a bank, has discretionary authority or
control with respect to the investment of any Securities available for Loan, or
(b) any potential Borrower not described in clause (a) above
is a party who is with respect to the Lender in such a position that a loan
would be considered a conflict of interest under applicable law.
If the Lender provides such notice, the Bank shall take appropriate action to
prevent the Lender from engaging in a Loan with any potential Borrower so
identified by the Lender. The Bank shall be entitled to rely upon such notices
from the Lender (and the absence of such notices) in its operation of this
securities lending program.
1.6 "Cash Collateral" shall mean either fed funds or New York Clearing
House funds, as applicable for a particular loan of Securities.
1.7 "Certificate" shall mean any notice, instruction, schedule or other
instrument in writing, authorized or required by this Agreement to be given to
the Bank, which is actually received by the Bank and signed on behalf of the
Lender by an Authorized Person or a person reasonably believed by the Bank to be
an Authorized Person.
1.8 "Collateral" shall mean Cash Collateral unless the Bank and the
Lender have agreed in writing to additional collateral, including Government
Securities and Letters of Credit.
1.9 "Collateral Account" shall mean a segregated account established
and maintained by the Bank for the purpose of holding Collateral, Cash
Collateral and Approved Investments, interest, dividends and other payments and
distributions received with respect to Collateral and Approved Investments
("Distributions"), and any Securities Loan Fee paid by Borrowers in connection
with Securities loans hereunder.
1.10 "Depository" shall mean the Depository Trust Company,
Participant's Trust Company, Euroclear, and any other securities depository or
clearing agency (and their respective successors and nominees) authorized under
applicable law or regulation to act as a securities depository or clearing
agency, including any foreign securities depository approved by the Lender.
1.11 "Government Security" shall mean book-entry Treasury securities
(as defined in Subpart 0 of Treasury Department Circular No. 300, 31 C.F.R. 306)
and any other securities issued or fully guaranteed by the United States
government or any agency or instrumentality of the United States government.
1.12 "Letter of Credit" shall mean a clean, unconditional and
irrevocable letter of credit in favor of the Bank as agent for the Lender issued
by a bank named on Schedule III hereto as may be amended from time to time to
add additional banks by the written consent of the parties hereto, or to delete
any Bank at the written direction of the Lender.
1.13 "Oral Instructions" shall mean verbal instructions actually
received by the Bank from an Authorized Person or from a person reasonably
believed by the Bank to be an Authorized Person.
1.14 "Rebate" shall mean the amount payable by the Lender to a Borrower
(as set forth in a Receipt) in connection with Securities loans at any time
collateralized by Cash Collateral.
1.15 "Receipt" shall mean an advice or confirmation setting forth the
terms of a particular loan of Securities hereunder, including, without
limitation, the Collateral with respect to such loan.
1.16 "Securities Borrowing Agreement" shall mean with, respect to any
Borrower, the agreement pursuant to which the Bank lends securities on behalf of
its customers (including the Lender) to such Borrower as may be amended from
time to time.
1.17 "Securities Loan Fee" shall mean the amount payable by a Borrower
to the Bank, as agent for the Lender, pursuant to the applicable Securities
Borrowing Agreement in connection with Securities loans, if any, collateralized
by Collateral other than Cash Collateral.
1.18 "Security" shall mean any Government Securities, non-U.S.
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, which are available for lending pursuant to Section
2.2 of this Agreement.
1.19 "Written Instructions" shall mean written communications actually
received by the Bank from an Authorized Person or from a person reasonably
believed by the 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 the 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.
2. Appointment; Scope of Agency Authority.
2.1 Appointment. The Lender hereby appoints the Bank as its agent to
lend Securities in the Account to Borrowers from time to time as hereinafter set
forth, and the Bank hereby accepts appointment as such agent and agrees to so
act.
2.2 Securities Subject to Lending. Unless the lender provides otherwise
in writing to the Bank, all Securities maintained in the Account shall be
available for lending pursuant to this Agreement.
2.3 Securities Borrowing Agreement. The Lender hereby acknowledges
receipt of a Securities Borrowing Agreement with respect to each Borrower and
authorizes the Bank to lend Securities in the Account to Borrowers pursuant to
such agreements. The Bank shall promptly provide the Lender with copies of any
material amendments or changes to such agreements. The Lender may elect to
terminate any Borrower from Schedule II if it opposes the change.
2.4 Loan Opportunities. The Lender acknowledges and agrees that the
Bank shall have the right to decline to make any loans of Securities under any
Securities Borrowing Agreement and to discontinue lending under any Securities
Borrowing Agreement in its sole discretion and without notice to the Lender. The
Lender agrees that it shall have no claim against the Bank based on, or relating
to, loans made for other customers or for the Bank's own account, or loan
opportunities refused hereunder, whether or not the Bank has made fewer or more
loans for any other customer or for the Bank's own account than for the Lender,
and whether or not any loan for another customer or for the Bank's own account,
or the opportunity refused, could have resulted in loans made hereunder.
2.5 Use of Book-Entry System and Depositories. The Lender hereby
authorizes the Bank on a continuous and on-going basis, to deposit in the
Book-Entry System and any 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 (other than Cash Collateral) and Approved Investments eligible for
deposit in the Book-Entry System or a Depository are transferred to the Account,
the Bank shall identify as belonging to the Lender a quantity of securities in a
fungible bulk of securities shown on the 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 Deposit will be
represented in accounts which include only assets held by the Bank for
customers, including but not limited to accounts in which the Bank acts in a
fiduciary or agency capacity.
3. Representations and Warranties.
3.1 Lender's Representations The Lender hereby represents and warrants
to the Bank, which representations and warranties shall be deemed to be
continuing and to be reaffirmed on any day that a Securities loan hereunder is
outstanding, that:
(a) This Agreement and the use of the Approved Investments has
been approved and will be reapproved annually by the Board of Directors/Trustees
of the Lender as being in the best interests of shareholders of the Lender; this
Agreement is, and each Securities loan and Approved Investment will be, legally
and validly entered into by the Lender, does not, and will not, violate any
statute, regulation, rule, order or, judgment binding on the Lender, or any
provision of the Lender's charter or by-laws, or any agreement binding on the
Lender or affecting its property, and is enforceable against the 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 the Lender has and have been duly and properly
authorized to do so;
(c) It is lending Securities as principal for its own account
and it will not transfer, assign or encumber its interest in, or rights with
respect to, any securities loans;
(d) All Securities subject to lending pursuant to Section 2.2
of this Agreement are free and clear of all liens, claims, security interests
and encumbrances, no such Security subject to lending has been sold and the
Lender has no present intention to sell any of the Securities subject to
lending. The Lender shall promptly delete from the list referenced in Section
2.2 hereof any and all Securities which are no longer subject to the
representations contained in this sub-paragraph (d).
3.2 Bank's Representations The Bank hereby represents and warrants to
the Lender, which representations and warranties shall be deemed to be
continuing and to be reaffirmed on any day that a Securities loan hereunder is
outstanding, that:
(a) This Agreement is legally and validly entered into by the
Bank, does not and will not, violate any statute, regulation, rule, order or,
judgment binding on the Bank, or any provision of the Bank's charter or by-laws,
or any agreement binding on the Bank or affecting its property, and is
enforceable against the Bank 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; and
(b) The person executing this Agreement on behalf of the Bank
and all persons acting on the Bank's behalf pursuant to this Agreement have been
duly and properly authorized to do so.
4. Securities Lending Transactions.
4.l Loan Initiation. From time to time the Bank may lend Securities to
Borrowers and deliver such Securities against receipt of Collateral in
accordance with the applicable Securities Borrowing Agreement. The Bank shall
deliver to the Lender a Receipt in connection with each loan made hereunder,
prior to settlement of such loan.
4.2 Receipt of Collateral; Approved Investments.
(a) For each loan hereunder the Bank shall (i) initially
receive Cash Collateral equivalent to no less than 102% of the market value of
the securities lent and (ii) thereafter shall request on a daily basis as
necessary additional Collateral, which for Cash Collateral shall be an amount
such that the value of the Cash Collateral in no event be equivalent to less
than 100% of the market value of the Securities lent (as determined in
accordance with the applicable Securities Borrowing Agreement), and the Bank is
hereby authorized and directed, without obtaining any further approval from the
Lender, to invest and reinvest all or substantially all of the Cash Collateral
received in any Approved Investment. The Bank shall credit all Collateral,
Approved Investments and Distributions received with respect to Collateral and
Approved Investments to the Collateral Account and xxxx its books and records to
identify the Lender's ownership thereof as appropriate.
(b) All Approved Investments shall be for the account and risk
of the 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 pursuant to the Securities Borrowing Agreement, the Lender agrees to
pay the Bank on demand cash in an amount equal to such deficiency.
(c) Except as otherwise provided herein, all Collateral,
Approved Investments and Distributions credited to the Collateral Account shall
be controlled by, and subject only to the instructions of, the Bank, and the
Bank shall not be required to comply with any instructions of the Lender with
respect to the same.
4.3 Distributions on Loaned Securities. Except as provided in the next
sentence, all interests, dividends, and other distributions paid with respect to
loaned Securities shall be credited to the Lender's account on the date such
amounts are delivered by the Borrower to the Bank. Any non-cash distribution on
loaned Securities which is in the nature of a stock split or a stock dividend
shall be added to the applicable loan (and shall be considered to constitute
loaned Securities) as of the date such non-cash distribution is received by the
Borrower.
4.4 Marks to Market. The Bank shall on each Business Day xxxx to market
in U.S. dollars the value of all Securities loaned hereunder and accordingly
receive and release Collateral in accordance with the applicable Securities
Borrowing Agreement.
4.5 Collateral Substitutions. The Bank shall accept substitutions of
Collateral in accordance with the applicable Securities Borrowing Agreement and
shall credit all such substitutions to the Collateral Account, provided however
that unless other Collateral has been mutually agreed upon in writing by the
Bank and the Lender, no other Collateral may be substituted for Cash Collateral.
4.6 Termination of Loans. The Bank shall terminate any Securities loan
to a Borrower in accordance with the applicable Securities Borrowing Agreement
as soon as practicable after:
(a) receipt by the Bank of a notice of termination pursuant to
the Securities Borrowing Agreement;
(b) receipt by the Bank of Written Instructions instructing it
to terminate a Securities loan;
(c) receipt by the Bank of Written Instructions deleting the
Borrower to whom such loan was made from Schedule II hereto;
(d) upon the Bank's becoming aware of the occurrence of any
default pursuant to the applicable Securities Borrowing Agreement requiring
termination of such loan; or
(e) whenever the Bank, in its sole discretion, elects to
terminate such loan.
4.7 Securities Loan Fee. The Bank shall receive any applicable
Securities Loan Fee paid by Borrowers pursuant to the Securities Borrowing
Agreement and credit all such amounts received to the Collateral Account.
4.8 The Borrower's Financial Condition. The Bank has delivered to the
Lender each of the Borrower's most recent statements that have been made
available to the Bank pursuant to the Securities Borrowing Agreements. The Bank
shall promptly deliver to the Lender all statements and financial information
subsequently delivered to the Bank and required to be furnished to the Bank
under the Securities Borrowing Agreements.
4.9 Transfer Taxes and Necessary Costs. All transfer taxes and
necessary costs with respect to the transfer of the loaned Securities by the
Lender to the Borrower and the Borrower to the Lender upon the termination of
the loan shall be paid by the Borrower in accordance with the applicable
Securities Borrowing Agreement.
4.10 Remedies Upon Default.
(a) If at the time of a default by a Borrower with respect to
a loan hereunder (within the meaning of the applicable Securities Borrowing
Agreement) some or all of the loaned Securities under such loan have not been
returned by the Borrower, subject to the terms of this Agreement, the Bank shall
indemnify Lender against the failure of the Borrower as follows. The Bank shall
purchase a number of Securities of the same issuer and class as the loaned
Securities equal to the number of such unreturned loaned Securities
("Replacement Securities"), to the extent that such Replacement Securities are
available on the open market. Such Replacement Securities shall be purchased by
applying the proceeds of the Collateral with respect to such loan to the
purchase of such Replacement Securities. Subject to Lender's obligations
pursuant to Sections 5.3 and 5.7 hereof, if and to the extent that such proceeds
are insufficient or the Collateral is unavailable, the purchase of such
Replacement Securities shall be made at the Bank's expense.
(b) If and to the extent that the Bank is unable or, in its
sole discretion, unwilling to purchase Replacement Securities pursuant to
Paragraph (a) hereof, the Bank shall credit to the Lender's account an amount
equal to the Market Value of the unreturned loaned Securities for which
Replacement Securities are not purchased, determined as of the last day on which
(1) the Bank was required to make a demand for additional Collateral from the
Borrower and (2) the Bank failed to make such demand or such demand did not
result in the delivery of such additional Collateral.
(c) Any credits required under Paragraph (b) hereof shall be
made by application of the proceeds of the Collateral (if any) that remains
after the purchase of Replacement Securities pursuant to Paragraph (a). If and
to the extent that the Collateral is unavailable or the value of the proceeds of
the remaining Collateral is less than the value of the sum of the credits
required to be made under Paragraph (b), such credits shall be made at the
Bank's expense.
(d) If after application of Paragraphs (a) through (c) hereof,
additional Collateral remains or any previously unavailable Collateral becomes
available or any additional amounts owed by the Borrower with respect to such
loan are received from the Borrower, the Bank shall apply the proceeds of such
Collateral or such additional amounts first to reimburse itself for any amounts
expended by the Bank pursuant to Paragraphs (a) through (c) above, and then to
credit to the Lender's account all other amounts owed by the Borrower to Lender
with respect to such loan under the applicable Securities Borrowing Agreement.
(e) Lender agrees, without the execution of any documents or
the giving of any notice, that the Bank is and will remain subrogated to all of
Lender's rights under the Securities Borrowing Agreement or otherwise,
including, but not limited to, Lender's rights with respect to loaned
Securities, distributions and Collateral, and Approved Investments. 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 Bank's rights of
subrogation hereunder.
4.11 Bank's Obligation. Except as specifically set forth herein, or in
any applicable Securities Borrowing Agreement, the Bank shall have 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.
5. Concerning the Bank.
5.1 Standard of Care: Indemnification.
(a) It is expressly understood and agreed that in exercising
its rights and performing its obligations hereunder, the Bank owes no fiduciary
duty to the Lender. The Bank shall not be liable for any costs, expenses,
damages, liabilities or claims (including attorneys and accountants fees)
incurred by the Lender, except those costs, expenses, damages, liabilities or
claims arising out of the Bank's negligence, willful misconduct, bad faith, or
reckless disregard of its obligations and duties hereunder. The Bank shall have
no obligation hereunder for costs, expenses, damages, liabilities or claims
(including reasonable 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. In no event shall the
Bank be liable for special, punitive or consequential damages, arising under or
in connection with this Agreement, even if previously informed of the
possibility of such damages.
(b) The Lender agrees to indemnify the 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 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 or arising
out of the Bank's operating under and in compliance with this Agreement, except
those costs, expenses, damages, liabilities or claims arising out of the Bank's
negligence, bad faith, willful misconduct, or reckless disregard of its
obligations and duties hereunder. The foregoing indemnity shall be a continuing
obligation of the Lender, its successors and assigns, notwithstanding the
termination of any loans hereunder or of this Agreement. Actions taken or
omitted in reasonable reliance upon Oral or Written Instructions, any
Certificate, or upon any information, order, indenture, stock certificate, power
of attorney, assignment, affidavit or other instrument reasonably believed by
the Bank to be genuine or bearing the signature of a person or persons
reasonably believed by the 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, shall be presumed to have been taken or omitted in good faith.
(c) The Bank agrees to indemnify the 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 the Lender may
sustain or incur or which may be asserted against the Lender to the extent
arising out of the Bank's negligence, bad faith, willful misconduct, or reckless
disregard of its obligations and duties hereunder.
5.2 No Obligation to Inquire. Without limiting the generality of the
foregoing, the Bank shall be under no obligation to inquire into, and shall not
be liable for, the validity of the issue of any Securities at any time held in
the Account or Approved Investments held in the Collateral Account, or the
legality or propriety of any loans of Securities to Borrowers.
5.3 Advances, Overdrafts and Indebtedness; Security Interest.
(a) The Bank may, in its sole discretion, advance funds on
behalf of the Lender in order to pay to Borrowers any Rebates or to return to
Borrowers Cash Collateral to which they are entitled pursuant to the Securities
Borrowing Agreement. The Bank may also, in its sole discretion and as a matter
of bookkeeping convenience, credit the Account with interest, dividends or other
distributions payable on Securities prior to its actual receipt of final payment
therefor and the Lender agrees that such bookkeeping credits may also be
reflected on its books, and otherwise, as "immediately available" or "same day"
funds or by some similar characterization. Notwithstanding any such credit or
characterization, all such credits shall be conditional upon the Bank's actual
receipt of final payment and may be reversed by the Bank to the extent that
final payment is not received. If the Bank, in its sole discretion, permits the
Lender to use funds credited to the Account prior to receipt by the Bank of
final payment thereof, the Lender shall nonetheless, continue to bear the risk
of, and liability for, the Bank's non receipt of final payment in full.
(b) The Lender agrees to repay the Bank on demand the amount
of any advance or credit described in Section 5.3(a) above or any other amount
owed by the Lender hereunder plus accrued interest at a rate per annum (based on
a 360-day year for the actual number of days involved) as agreed to by the
parties from time to time. In order to secure repayment of any credit, advance,
overdraft or other indebtedness of the Lender to the Bank arising hereunder, the
Lender hereby agrees that the Bank shall have a continuing lien and security
interest, to the extent of any such amounts owing, in and to all assets now or
hereafter held in the Account and the Collateral Account, which is then in the
Bank's possession or control or in the possession or control of any third party
acting on the Bank's behalf. In this regard, the Bank shall be entitled to
charge any amounts owed to the Bank hereunder against any balance of account
standing to the credit of the Lender on the Bank's books and, without limiting
the foregoing, to all the rights and remedies of a pledgee under common law and
a secured party under the Massachusetts Uniform Commercial Code and/or any other
applicable laws and/or regulations as then in effect.
(c) The rights of the Bank and the obligations of the Lender
under this Section are absolute and unconditional whether or not the Bank would
be entitled to indemnification pursuant to Section 5.l(b) hereof.
(d) For all purposes of this Agreement, payment with respect
to a transaction will not be "final" until the Bank shall have received
immediately available funds which under applicable law or rule are irreversible,
which are not subject to any security interest, levy or other encumbrance, and
which are specifically applicable, or deemed by the Bank to be specifically
applicable, to such transaction. A debit by the Bank to any other account of the
Lender maintained by the Bank or to an account of any third party to whom or for
whose account Securities have been delivered shall not constitute final payment
to the extent that such debit creates an overdraft or does not otherwise result
in the receipt by the Bank of immediately available, irreversible and
unencumbered funds.
5.4 Advice of Counsel The 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.
5.5 No Collection Obligations. The Bank shall be under no obligation or
duty to take action to effect collection of 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.
5.6 Pricing Methods. The Bank is authorized to utilize any recognized
pricing information service or any other means of valuation specified in the
applicable Securities Borrowing Agreement ("Pricing Methods") in order to
perform its valuation responsibilities with respect to loaned Securities,
Collateral and Approved Investments, and the Lender agrees to hold the Bank
harmless from and against any loss or damage suffered or incurred as a result of
errors or omissions of any such Pricing Methods.
5.7 Agent's Fee. In connection with each Securities loan hereunder the
Lender shall pay to the Bank a fee equal to 30% of (a) net realized income
derived from Approved Investments, plus (b) any Securities Loan Fee paid or
payable by the Borrower, minus (c) any Rebate paid by the Bank to the Borrower.
The Bank is authorized, on a monthly basis, to charge its fee and any other
amounts owed by the Lender hereunder against the Account and/or Collateral
Account.
5.8 Reliance On Certificates and Instructions. The Bank shall be
entitled to rely upon any Certificate, any information contained on any Schedule
hereto as may be amended in accordance with the terms hereof, and Written or
Oral Instruction actually received by the Bank and reasonably believed by the
Bank to be duly authorized and delivered. The Lender agrees to forward to the
Bank Written Instructions confirming Oral Instructions in such manner so that
such Written Instructions are received by the Bank by the close of business of
the same day that such Oral Instructions are given to the Bank. The Lender
agrees that the fact that such confirming Written Instructions are not received
on a timely basis or that contrary instructions are received by the Bank shall
in no way affect the validity or enforceability of the transactions authorized
by the Lender. The Bank will use reasonable efforts to report any subsequently
received contrary instructions. In this regard, the records of the Bank shall be
presumed to reflect accurately any Oral Instructions given by an Authorized
Person or a person reasonably believed by the Bank to be an Authorized Person.
5.9 Disclosure of Account Information. It is understood and agreed that
the Bank is authorized to supply any information regarding the Account which is
required by any law or governmental regulation now or hereafter in effect.
5.10 Statements. The Bank will at least daily furnish the Lender with
statements relating to loans hereunder.
5.11 Force Majeure. The 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 acts of God, earthquakes,
fires, floods, storms or other disturbances of nature, epidemics, strikes,
riots, nationalization, expropriation, currency restrictions, acts of war, civil
war or terrorism, insurrection, nuclear fusion, fission or radiation, the
interruption, loss or malfunction of utilities, transportation, the
unavailability of energy sources and other similar happenings or events except
as results from the Bank's own gross negligence.
5.12 No Implied Duties.
(a) The Bank shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement and in the applicable Securities Borrowing Agreement, and no
covenant or obligation shall be implied against the Bank in connection with this
Agreement.
(b)The Lender 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 the
Lender in connection with this Agreement.
6. Termination. 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 60 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 of Securities outstanding on the
date of termination.
7. Miscellaneous.
7.1 Exclusivity. The 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 the Lender of any securities held by the Bank in the
Account from time to time.
7.2 Certificates. The Lender agrees to furnish to the 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, the Bank shall
be fully protected in acting upon Oral Instructions or signatures of the present
Authorized Persons.
7.3 Notices.
(a) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to the Bank, shall be sufficiently given
if addressed to the Bank and received by it at its offices at 000 Xxxxxxxxx
Xxxxxx, X.X. Xxx 0000, Xxxxxx, Xxxxxxxxxxxxx 00000-0000, Attention: Securities
Lending Department, , with a copy to: Xxxx X. Xxxxx, General Counsel or at such
other place as the 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 the Lender shall be sufficiently given
if addressed to the Lender and mailed or delivered to it at its offices at 000
Xxxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000, or at such other place as the Lender may
from time to time designate in writing.
7.4 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.
7.5 Severability. In case any provision in or obligation under this
Agreement 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 is
inapplicable to any person or circumstances, it shall nevertheless remain
applicable to all other persons and circumstances.
7.6 Amendments. This Agreement may not be amended or modified in any
manner except by a written agreement executed by both parties.
7.7 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.
7.8 Governing Law; Consent to Jurisdiction. This Agreement shall be
construed in accordance with the laws of the Commonwealth of Massachusetts
without regard to conflict of laws principles thereof. The Lender hereby
consents to the jurisdiction of a state or federal court situated in Boston,
Massachusetts in connection with any dispute arising hereunder.
7.9 No Third Party Beneficiaries. In performing hereunder, the Bank is
acting solely on behalf of the Lender and no contractual or service relationship
shall be deemed to be established hereby between the Bank and any other person.
7.10 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.
7.11 SIPA Notice. THE PROVISIONS OF THE SECURITIES INVESTOR PROTECTION
ACT OF 1970 MAY NOT PROTECT THE LENDER WITH RESPECT TO LOANS HEREUNDER AND,
THEREFORE, THE COLLATERAL DELIVERED TO THE BANK AS AGENT FOR THE LENDER MAY
CONSTITUTE THE ONLY SOURCE OF SATISFACTION OF A BORROWER'S OBLIGATION IN THE
EVENT SUCH BORROWER FAILS TO RETURN THE LOANED SECURITIES.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officers, thereunto duly authorized and
their respective corporate seals to be hereunto affixed, as of the day and year
first above written.
PORTFOLIO PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
----------------------------
Title: President
INVESTORS BANK & TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Title: Managing Director
SCHEDULE I
APPROVED INVESTMENTS
BANK OBLIGATIONS:
Bank Obligations with Domestic and Foreign Banks including Offshore Time
Deposits. All Banks obligations will have a short term rating of XXX-0,
X-0, or P-1 from Xxxxxxxx Bankwatch, S & P or Moody's at time of purchase.
MONEY MARKET FUNDS
Institutional Money Market Funds with assets greater than $500 million,
including, without limitation, the Merrimac Cash Fund series of Merrimac
Funds*.
REPURCHASE AGREEMENTS
Collateral held by IBT or a third party subcustodian. Collateralized at a
minimum of 102%. Eligible Collateral includes US Government, Mortgage Backed
Securities, Commercial Paper (A-1 or P-1) & US Corporate Bonds (Investment
Grade)) with the following brokers.
ABN AMRO
Bear Xxxxxxx & Co, Inc
CS First Boston Corporation
Xxxxxxx Xxxxx & Co.
Xxxxxx Brothers, Inc.
X.X. Xxxxxx Securities, Inc.
Xxxxxxx Xxxxx Government Securities.
Xxxxxx Xxxxxxx & Co. Inc.
PaineWebber, Inc
Prudential Securities, Inc
UBS Securities. Inc
COMMERCIAL PAPER
Must be rated A-1 by S&P or P-1 by Moodys at time of purchase.
CORPORATE BOND
Must have a Short Term rating of rated A-1 by S&P or P-1 by Moodys or
have a Long Term Rating of Investment Grade at time of purchase.
UNSECURED PROMISSORY NOTES (MASTER NOTES)
Must have a rating or Parental rating of A-1 by S&P or P-1 by Moodys at
time of purchase.
INSURANCE FUNDING AGREEMENTS
Must have a minimum Issuers Claim Paying Ability rating of A by S&P or
A by Duff and Xxxxxx at time of purchase. Must be putable back to the
issuer within 90 days.
GENERAL
ALL INVESTMENTS WILL BE US DOLLAR DENOMINATED.
THE FINAL MATURITY FOR ANY SECURITY/ISSUE WILL BE LESS THAN ONE YEAR. ALL
INVESTMENTS WILL BE IN COMPLIANCE WITH INVESTMENT COMPANY ACT OF 1940.
ALL INVESTMENTS WILL MEET THE MINIMUM APPLICABLE CREDIT RATING ASSOCIATED WITH
EACH FUND AT TIME OF PURCHASE.
By:
----------------------------------
Title:
-------------------------------
Date:
--------------------------------
--------
* The Bank acts as investment adviser to and serves as custodian, administrator
and transfer agent of the Merrimac Funds.
SCHEDULE II
APPROVED BORROWERS
Bank of America Securities LLC
Bear, Xxxxxxx Securities Corp.
Credit Suisse First Boston Corporation (includes DLJ Securities Corp.)
Deutsche Bank Xxxx Xxxxx. (1)
Xxxxxxx, Sachs & Co. (2)
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Inc.
Xxxxxx Xxxxxxx & Co. (includes Xxxxxx Xxxxxxx Securities Services Inc.) (3)
Prudential Securities, Inc.
Xxxxxxx Xxxxx Barney Inc. (4)
UBS (includes UBS Warburg and UBS PaineWebber, Inc.) (5)
THE BANK MAY NOT LEND SECURITIES OF THE LENDER TO ING-BARINGS LLC, a borrower
approved by Investors Bank & Trust for Securities Lending, but ineligble for all
funds listed in Schedule A of this Agreement.
(1) The Bank may not lend securities of the PPI Xxxxxxx International Growth
Portfolio to Deutsche Bank Securities Inc.
(2) The Bank may not lend securities of the PPI Goldman Capital Portfolio to
Xxxxxxx Xxxxx & Co.
(3) The Bank may not lend securities of the ING Xxx Xxxxxx Xxxxxxxx Portfolio to
Xxxxxx Xxxxxxx & Co.
(4) The Bank may not lend securities of the PPI Salomon Brothers Capital
Portofolio or PPI Salomon Brothers Investors Value Portfolio to Xxxxxxx
Xxxxx Xxxxxx, Inc.
(5) The Bank may not lend securities of the PPI Xxxxxxx Tactical Asset
Allocation Portfolio to UBS.
By:
----------------------------------
Title:
-------------------------------
Date:
--------------------------------
SCHEDULE III
LETTER OF CREDIT BANKS
[To be Determined]
Schedule A
PPI MFS Emerging Equities Portfolio
PPI MFS Research Growth Portfolio
PPI MFS Capital Opportunities Portfolio
PPI Xxxxxxx International Growth Portfolio
PPI X. Xxxx Price Growth Equity Portfolio
PPI Goldman Capital Growth Portfolio
PPI Salomon Brothers Capital Portfolio
PPI OpCap Balanced Value Portfolio
PPI Xxxxxxx Tactical Asset Allocation Portfolio
PPI DSI Enhanced S&P Index Portfolio
PPI Salomon Brothers Investors Value Portfolio
PPI Xxxxx Growth Portfolio
PPI Xxxxx Aggressive Growth Portfolio
ING JPMorgan Mid Cap Value
ING Baron Small Cap Growth
ING Xxx Xxxxxx Xxxxxxxx
ING MFS Global Growth
ING PIMCO Total Return
ING American Century Small Cap Value
Bank of America Securities LLC
Bear, Xxxxxxx Securities Corp.
Credit Suisse First Boston Corporation (includes DLJ Securities Corp.)
Deutsche Bank Securities Inc. (includes BT Xxxx Xxxxx Inc.)
Xxxxxxx, Sachs & Co.
Xxxxxx Brothers Inc.
XX Xxxxxx Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Inc.
Xxxxxx Xxxxxxx & Co. (includes Xxxxxx Xxxxxxx Securities Services Inc.)
Prudential Securities, Inc.
Xxxxxxx Xxxxx Barney Inc.
UBS (includes Warburg Xxxxxx Xxxxx Inc. and PaineWebber, Inc.)
By:
----------------------------------
Title:
-------------------------------
Date:
--------------------------------
SCHEDULE III
LETTER OF CREDIT BANKS
[To be Determined]
