SECURITIES LENDING AGENCY AGREEMENT dated as of August 1, 2001 between
XXXXXXXX XXXXXXXXX INSTITUTIONAL FUNDS, an open-end investment company organized
under the laws of the State of Delaware (the "Fund") on behalf of each of the
portfolios listed on the attached Appendix A as such Appendix may be amended
from time to time hereafter (each a "Portfolio" and collectively, the
"Portfolios"), and XXXXX BROTHERS XXXXXXXX & CO., a New York limited partnership
with an office in Boston, Massachusetts ("BBH&CO").
WHEREAS, the Fund has appointed BBH&CO as the custodian of each of the
Portfolios pursuant to a Custodian Agreement dated as of May 1, 1999, as amended
to date (the "Custodian Agreement"); and
WHEREAS, the Portfolios intend to lend securities to securities brokers and
other borrowers which have been or will be approved by the Fund; and
WHEREAS, the Fund intends to appoint BBH&CO as the lending agent for each
of the Portfolios to act as its agent in connection with the securities lending
program and to lend in accordance with operational procedures established by
BBH&CO and which govern securities lending activity by the Portfolios,
hereinafter referred to as "Operational Procedures";
NOW, THEREFORE, in consideration of the premises and agreements contained
herein, the parties hereto, intending to be bound, hereby agree as follows:
1. APPOINTMENT. The Fund hereby appoints BBH&CO as lending agent for the
Portfolios for the purposes set forth herein. BBH&CO hereby accepts such
appointment. BBH&CO is acting solely as a directed agent of the Fund and the
Portfolios hereunder and owes no fiduciary duties to any person with respect to
this Agreement. BBH&CO shall have no duties or responsibilities in respect to
securities lending transactions except those expressly set forth in this
Agreement.
2. AUTHORIZATIONS. The Fund hereby authorizes BBH&CO to act as agent for
each of the Portfolios as set forth in this Section.
2.1 LENDING OF AVAILABLE SECURITIES. The Fund hereby authorizes the
lending of those securities identified in Schedule 1 hereto
("Available Securities") which are held in accounts maintained with
BBH&CO or its subcustodians, or, in the case of third party lending,
either a Portfolio's custodian or subcustodian (each a "Custody
Account").
2.2 LENDING TO APPROVED BORROWERS UNDER APPROVED TERMS. The Fund hereby
authorizes the lending of Available Securities to any one or more of
the institutions prescribed by the Fund and listed on Schedule 2
hereto (each, an "Approved Borrower"). Any such loan shall be on the
terms set forth in Schedule 3 hereof unless the Fund otherwise
authorizes in writing (the terms set forth in Schedules 2 and 3 as
well as any terms otherwise authorized by the Fund in writing,
"Approved Terms").
2.3 AUTHORIZATIONS BY FUND. The Fund hereby authorizes and empowers BBH&CO
to execute in the Fund's name on behalf of a Portfolio all agreements
and documents
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as may be necessary or appropriate in their judgment to carry out the
purposes of this Agreement. It is understood and agreed that BBH&CO is
authorized to supply any information regarding the Fund, a Portfolio
and any loan of securities effected pursuant to an SLA that is
required by this Agreement or under applicable law.
The Fund may, at the request of BBH&CO, approve changes to the Available
Securities, Approved Borrowers or Approved Terms by executing an updated
Schedule 1, 2 or 3 as appropriate and delivering it to BBH&CO.
3. SECURITIES LOAN AGREEMENT. BBH&CO is hereby authorized to execute a
securities loan agreement ("SLA") as a Portfolio's agent on a disclosed basis
with each Approved Borrower. The SLA will be in substantially the form of
Schedule 3 annexed hereto. Subject to the preceding sentence, the Fund hereby
authorizes BBH&CO to revise, without notice to the Fund, the terms of any SLA
with any Approved Borrower as BBH&CO deems necessary or appropriate, in its
discretion, for the effectuation of any transaction contemplated hereby or
thereby. The Fund agrees that it and a Portfolio shall be bound by the terms of
SLA's entered into by BBH&CO with Approved Borrowers with respect to the
Portfolio's participation in the securities lending program as though the Fund
and each Portfolio were itself a party to all of such agreements. The Fund
specifically approves such form of agreement and agrees, upon request, to
promptly furnish or cause to be furnished to BBH&CO the Fund's and a Portfolio's
financial statements to enable BBH&CO to comply with any request therefor by any
Approved Borrower in connection with any SLA. BBH&CO shall negotiate on behalf
of a Portfolio with each Approved Borrower all terms of a securities loan,
including the amounts or fees to be received or paid pursuant to the applicable
SLA. BBH&CO may prepare a transactional confirmation in respect of each loan
effected pursuant to an SLA, setting forth the securities borrowed and the
material terms of the loan, and may transmit the same to the Approved Borrower
in accordance with such SLA. The Fund understands and agrees that the identity
of the Fund and a Portfolio will be disclosed by BBH&CO to the Approved Borrower
in accordance with the SLA.
4. LOAN OF SECURITIES. During the term of any securities loan, a Portfolio
shall permit the loaned securities to be transferred, pursuant to a SLA, into
the name of and voted (where applicable) by an Approved Borrower. BBH&CO is
authorized in its discretion to terminate any securities loan entered into with
an Approved Borrower without prior notice to the Fund, subject to the conditions
of the relevant SLA. The Fund may itself instruct BBH&CO to terminate any loan
on any date, subject to the conditions of the relevant SLA. BBH&CO agrees to
comply with any such instruction.
4.1 LIMITS ON RETURN OF LOANED SECURITIES. The Fund acknowledges that,
under the applicable SLA, Approved Borrowers will not be required to
return loaned securities immediately upon receipt of notice from
BBH&CO terminating the applicable loan, but instead will be required
to return such loaned securities within such period of time following
such notice which is equal to the earlier of (i) the standard
settlement period for trades of the loaned securities entered into on
the date of such notice in the principal market therefor, or (ii) five
Business Days (as defined in the SLA) from the giving of such notice.
4.2 RECALL OF LOANED SECURITIES. Upon receiving a notice from the Fund
that Available Securities which have been lent to an Approved Borrower
should no longer be considered Available Securities (whether because
of the sale of such
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securities or otherwise), BBH&CO shall (a) notify promptly thereafter
the Approved Borrower which has borrowed such securities that the loan
of such securities is terminated and that such securities are to be
returned within the time specified by the applicable SLA, or (b)
otherwise cause to be delivered, at its discretion, an equivalent
amount of such security if such amount is available to be loaned from
assets of other clients participating in BBH&CO's securities lending
program, to the Portfolio.
4.3 NOTIFICATION OF SALES OF LOANED SECURITIES. The Fund hereby
acknowledges its obligation to BBH&CO, as applicable, to provide
notification of any sale of securities which are out on loan by the
close of business, in the principal market therefor, on trade date of
such sale.
5. LOAN COLLATERAL. For each loan of securities, the Approved Borrower
shall pledge as collateral the following items: (a) cash in U.S. dollars or
foreign currency; (b) securities issued or fully guaranteed by the United States
government or any agencies or instrumentalities thereof; or (c) irrevocable
performance letters of credit issued by banks approved by the Fund on the
attached Schedule 4 (which may from time to time be updated in writing)
(collectively, "Collateral") having an initial market value (as determined by
BBH&CO pursuant to the applicable SLA) at least equal to the market value of the
loaned securities (as determined pursuant to the applicable SLA).
5.1 RECEIPT OF COLLATERAL. In respect of the commencement of any loan,
BBH&CO shall instruct the Approved Borrower to transfer to BBH&CO the
required Collateral (except for letters of credit which shall be
transferred to and received, held and administered by BBH&CO as
provided above). Collateral will be received from an Approved Borrower
prior to or simultaneous with delivery of securities loaned. If the
Approved Borrower does not provide Collateral to BBH&CO, as previously
agreed, then BBH&CO will cancel the corresponding loan instruction
prior to delivery.
5.2 HOLDING AND ADMINISTRATION OF COLLATERAL. All Collateral consisting of
cash and securities shall be received, held and administered by BBH&CO
(as set forth in Operational Procedures) for the benefit of a
Portfolio in the applicable Custody Account or other account
established for the purpose of holding Collateral. Collateral
consisting of cash shall be placed in an investment listed in the
attached Schedule 5 ("Permitted Investments") in accordance with
Section 7 hereof. Collateral consisting of letters of credit shall be
received, held and administered by BBH&CO for the benefit of a
Portfolio in accordance with the terms of this Agreement and
particularly of this Section 5.2.
5.2.1 MAINTENANCE OF COLLATERAL MARGIN. In respect of loans of
securities entered into on behalf of a Portfolio, BBH&CO will
value on a daily basis, in accordance with the applicable SLA,
the loaned securities and all Collateral and, where
applicable, BBH&CO shall, in accordance with the provisions of
the applicable SLA, request the Approved Borrower to deliver
sufficient additional Collateral to the Portfolio to satisfy
the applicable margin requirement. If, as a result of
marking-to-market, Collateral is required to be returned to
the Approved Borrower under the
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SLA, BBH&CO will timely return such Collateral to the Approved
Borrower. BBH&CO is authorized in respect of any securities
loan or loans to consent to any adjustment in the amount
available to be drawn under any letter of credit in order to
satisfy any requirement under an SLA to return excess
Collateral to Approved Borrower as a result of
marking-to-market.
5.2.2 SUBSTITUTION OF COLLATERAL. The Fund acknowledges and agrees
that, pursuant to any SLA, BBH&CO may permit an Approved
Borrower to substitute Collateral, which is of the type
specified in Section 5 hereto, during the term of any loan so
long as the required margin in respect of such loan continues
to be satisfied at the time of such substitution.
5.2.3 RETURN OF COLLATERAL. Upon termination of the loan, BBH&CO
shall instruct the Approved Borrower to return the loaned
securities to the applicable Custody Account. BBH&CO will
instruct any subcustodian, if applicable, to accept such
return delivery of loaned securities. BBH&CO shall monitor the
return of loaned securities. Once BBH&CO has confirmed
settlement of the return of the loaned securities, BBH&CO
shall effect, on behalf of a Portfolio, the redemption of any
Permitted Investment, if applicable, and effect the return of
Collateral due the Approved Borrower in accordance with the
Approved Borrower's transfer instructions with respect
thereto.
6. INCOME, CORPORATE ACTIONS AND SUBSTITUTE PAYMENTS. Income, corporate
actions and Substitute Payments (as defined in Sections 6.1 and 6.2) shall be
dealt with as provided in this Section 6.
6.1 INCOME AND RELATED PAYMENTS TO BORROWER. Where Collateral consists of
securities and the Approved Borrower, pursuant to an SLA, is due to
receive an amount equal to the interest or distribution declared
("Collateral Substitute Payment") in respect of such Collateral during
the term of the related securities loan, BBH&CO shall promptly remit
or cause to be remitted such Collateral Substitute Payment on behalf
of a Portfolio to the Approved Borrower in accordance with such
Approved Borrower's instructions. BBH&CO shall likewise remit, or
cause to be remitted, to any Approved Borrower the applicable Cash
Collateral Fee (as defined in the SLA) when due in accordance with the
Approved Borrower's instructions.
6.2 INCOME AND RELATED PAYMENTS TO FUND. BBH&CO shall instruct each
Approved Borrower which is a party to a SLA to remit any payment
in-lieu-of the interest or distribution declared on loaned securities
("Loan Substitute Payment") which is (i) denominated in a currency
other than U.S. dollars and (ii) denominated in U.S. dollars when the
Loan Substitute Payment is not automatically distributed to the BBH&CO
depository account on behalf of a Portfolio by the applicable
depository, and BBH&CO shall receive, hold and administer the same,
for the account of the Portfolio. BBH&CO shall also instruct each
Approved Borrower which is a party to an SLA to remit any other fees
payable on loaned securities to
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BBH&CO for the account of a Portfolio, and BBH&CO shall receive, hold
and administer the same for the account of the Portfolio.
6.3 CORPORATE ACTIONS AND PROXY RIGHTS. The Fund acknowledges that, with
respect to securities which are out on loan over the applicable record
date for such action, unless otherwise agreed hereto, it will not be
entitled to (i) participate in any dividend reinvestment program; (ii)
receive stock in an optional cash/stock dividend plan; or (iii) vote
any proxies. Corporate actions will otherwise be processed in
accordance with the SLA and the Operational Procedures.
7. INVESTMENT OF CASH COLLATERAL. Pursuant to the SLA, the Fund shall have
the right to invest cash Collateral received in respect of any loan, subject to
an obligation, upon the termination of the loan, to return to the borrower the
amount of cash initially pledged (as adjusted for any interim marks-to-market).
7.1 COLLATERAL INVESTMENT DIRECTION. The Fund hereby authorizes and
directs BBH&CO to cause to be invested, on a Portfolio's behalf and at
the sole risk of the Fund and such Portfolio, all Collateral in the
form of cash by effecting purchase and sales and/or subscriptions and
redemptions of such Collateral in any Permitted Investment set forth
on Schedule 5 hereto (which may from time to time be updated in
writing by the Fund). BBH&CO shall, where applicable, send timely
instructions to the transfer agent of the Permitted Investment with
respect to any cash transfers required to be completed in conjunction
with any subscription or redemption in a Permitted Investment.
7.2 COLLATERAL INVESTMENT RISK. Any such investment shall be at the sole
risk of the Fund and a Portfolio. Any income or gains and losses from
investing and reinvesting any cash Collateral delivered by an Approved
Borrower pursuant to an SLA shall be at the Fund's and the Portfolio's
risk, and the Fund agrees that to the extent any such losses reduce
the amount of cash below the amount required to be returned to the
Approved Borrower upon the termination of any loan (including any Cash
Collateral Fee), the Fund will, on demand of BBH&CO, immediately pay
or cause to be paid to such Approved Borrower an equivalent amount in
cash.
8. STATEMENTS. BBH&CO will provide to the Fund (i) upon request, a daily
statement of activity setting forth information relating to loaned securities,
marks-to-market and termination and (ii) on or about the 7th (seventh) Business
Day of each month, a statement indicating for the preceding calendar month the
securities lent by a Portfolio, the value of such securities, the identity of
the Approved Borrowers, the nature and amount of Collateral pledged or delivered
as security for the loaned securities, the income received (or loss incurred)
from the daily investment of cash Collateral, the amounts of any fees or
payments paid with respect to each loan and such other information as the
parties hereto may agree to from time to time. For purposes hereof, "Business
Day" means any day on which BBH&CO is open for business in Boston,
Massachusetts. BBH&CO (unless otherwise instructed by the Fund) shall instruct
any Approved Borrower to remit directly to BBH&CO, as applicable, all amounts
and fees due a Portfolio pursuant to any loan of securities, which BBH&CO shall
in turn pay to the Portfolio.
9. SIPC COVERAGE. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THE
SECURITIES INVESTOR PROTECTION ACT OF 1970 MAY NOT PROTECT THE
5
FUND WITH RESPECT TO THE SECURITIES LOAN TRANSACTION AND THAT, THEREFORE, THE
COLLATERAL DELIVERED BY AN APPROVED BORROWER TO THE FUND MAY CONSTITUTE THE ONLY
SOURCE OF SATISFACTION OF THE OBLIGATION OF THE APPROVED BORROWER IN THE EVENT
THE APPROVED BORROWER (OR ITS AGENT) FAILS TO RETURN THE SECURITIES.
10. FUND INFORMATION. The Fund covenants and agrees to promptly furnish to
BBH&CO any information regarding the Fund and a Portfolio which is necessary to
effect transactions on behalf of the Portfolio including, but not limited to,
restrictions it wishes to impose with respect to the acceptance of forms of
collateral or lending to any Approved Borrower(s) or any limitations imposed
pursuant to any applicable law, regulation, authority, charter, by-law, statute
or other instrument.
11. TAX TREATMENT. The Fund acknowledges that the tax treatment of
Substitute Payments may differ from the tax treatment of the interest or
dividend to which such payment relates and that the Fund has made its own
determination as to the tax treatment of any securities loan transactions
undertaken pursuant to this Agreement and of any dividends, distributions,
remuneration or other funds received hereunder. The Fund also acknowledges that,
to the extent that either the Fund or the Approved Borrower is a non-U.S.
resident, BBH&CO may be required to withhold tax on amounts payable to or by a
Portfolio pursuant to a securities loan and may at any time claim from the Fund
any shortfall in the amount BBH&CO so withheld.
12. RESPONSIBILITY OF BBH&CO. Subject to the requirements of applicable
law, BBH&CO shall not be liable with respect to any losses incurred by the Fund
and a Portfolio in connection with this securities lending program or under any
provision hereof, except to the extent that such losses result from its gross
negligence or willful misconduct in the performance of its duties under this
Agreement. BBH&CO shall not be liable for losses, costs, expenses or liabilities
caused by or resulting from the acts or omissions of the Fund, a Portfolio or of
any agent or third party custodian of the Fund or a Portfolio. BBH&CO shall not
be responsible for any special, punitive, indirect or consequential damages,
whether or not BBH&CO has been apprised of the likelihood of such damages.
13. FUND INDEMNITY. The Fund hereby indemnifies BBH&CO (which, for purposes
of this paragraph shall include their respective officers, directors, partners,
managers, employees and agents) from and against any and all claims, damages,
liabilities, losses, costs or expenses (including the fees and expenses of
counsel) incurred, suffered or sustained by BBH&CO, which directly or indirectly
arise from performance of this Agreement or any transaction effected pursuant to
an SLA, except to the extent that such claims, damages, liabilities, losses,
costs or expenses were caused solely by the negligence or willful misconduct of
BBH&CO. This indemnity shall survive the termination of this Agreement and the
resignation or removal of BBH&CO as agent.
14. SECURITY INTEREST. The Fund hereby grants a lien and security interest
(each a "Security Interest") to BBH&CO in its interest in any and all property
now or hereafter held on behalf of the Portfolios in any custody account or
clearance or settlement account maintained with BBH&CO or to which this
Agreement relates, said Security Interests to secure payment and performance of
any indebtedness or other liability the Portfolios incur to BBH&CO, including
(without limitation) reimbursement of any payment made under this Agreement in
advance of the receipt of good funds for account of a Portfolio, as the case may
be, in respect of any securities
6
lending transaction hereunder ("Securities Lending Obligations"); BBH&CO's
security interests granted hereunder as security for Securities Lending
Obligations of the Portfolios to BBH&CO in respect of any securities lending
transaction hereunder shall rank pari passu with any Security Interest granted
by the Fund to BBH&CO under the Custodian Agreement. In the event that the
custody account is held with a third party custodian, the Fund shall undertake
to notify said custodian of the Security interest and shall take all reasonable
steps to secure the perfection of the same.
15. REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to
each other that (i) it has due authority to enter into and perform this
Agreement and any transactions contemplated thereby; (ii) the execution and
performance of this Agreement and any transaction contemplated thereby has been
duly authorized by all necessary action, corporate or otherwise, and does not
and will not violate any law, regulation, charter, by-law or other instrument,
restriction or provision applicable to it; and (iii) this Agreement constitutes
such party's legal, valid and binding obligation enforceable in accordance with
its terms. In addition, the Fund represents that: (a) any loan authorized
hereunder and the performance of this Agreement in respect of such loan is
authorized by the prospectus and other constitutive documents of the Fund and
the Portfolios (including any limits as to the aggregate amount of authorized
lending under such documents); and (b) as to any securities lent at any time and
from time to time on behalf of a Portfolio, the Fund and the Portfolio shall be
the owner thereof with clear title thereto and no lien, charge or encumbrance
upon such securities shall exist.
16. NON-EXCLUSIVITY OF AGENCY SERVICE AND SIMILAR MATTERS. The Fund
acknowledges that BBH&CO, acting on behalf of other accounts, may effect
transactions with or for the same institutions to which loans of securities may
be made hereunder, which transactions may give rise to potential conflict of
interest situations. The Fund further acknowledges that BBH&CO may engage in
securities lending transactions as agent for other lenders. Lending
opportunities among borrowers shall be allocated at the discretion of BBH&CO in
an equitable manner.
17. FORCE MAJEURE. BBH&CO 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
software) or communications service; accidents; labor disputes; acts of civil or
military authority; governmental actions; or inability to obtain labor,
material, equipment or transportation. Without limiting the foregoing, BBH&CO
shall not be responsible for economic, political or investment risks incurred
through a Portfolio's participation in this securities lending program.
18. RELIANCE ON FUND COMMUNICATIONS. BBH&CO shall be entitled to
conclusively rely upon any certification, notice or other communication
(including by telephone (if promptly confirmed in writing), telex, facsimile,
telegram or cable) reasonably believed by it to be genuine and correct and to
have been signed or sent by or on behalf of an approved person ("Approved
Person") of the party sending such certification, notice or other communication.
Set forth in Schedule 6 hereto is a list of Approved Persons for each of the
parties hereto, which list may be amended by any party from time to time upon
notice to the other parties. No provision of this Agreement shall require BBH&CO
to expend or risk its own funds in the performance of its duties hereunder.
BBH&CO reserves the right to notify the Fund of any restrictions (self-imposed
or otherwise) concerning its activities worldwide. BBH&CO shall each have the
right
7
to consult with counsel with respect to their respective rights and duties
hereunder and shall not be liable for actions taken or not taken in reliance on
such advice.
19. COMPENSATION. The basis of BBH&CO's compensation for their activities
hereunder and in respect of any loan is set forth in Schedule 7 and 7A hereto.
BBH&CO shall notify the Fund, on or about the 7th (seventh) Business Bay of each
month, of the amount of fees due BBH&CO hereunder and, promptly upon receipt of
such notice, the Fund shall effect the requisite payment to BBH&CO in
immediately available funds of U.S. dollars.
20. TERMINATION. This Agreement may be terminated at the option of any of
the parties and shall be effective upon delivery of written notice to the other
parties hereto or on such date as the written notice shall provide; provided
that the Fund's indemnification shall survive any such termination. The Fund may
remove BBH&CO as lending agent, with or without cause. Such removal shall be
effective upon delivery of written notice to the party being removed.
21. ACTION ON TERMINATION. It is agreed that (a) upon receipt of notice of
termination, no further loans shall be made hereunder by BBH&CO and (b) BBH&CO
shall, within a reasonable time after termination of this Agreement, terminate
any and all outstanding loans. The provisions hereof shall continue in full
force and effect in all other respects until all loans have been terminated and
all obligations satisfied as herein provided.
22. NOTICES. All notices, demands and other communications hereunder shall
be in writing and delivered or transmitted (as the case may be) by registered
mail, facsimile, telex, courier, or be effected by telephone promptly confirmed
in writing and delivered or transmitted as aforesaid, to the intended recipient
in accordance with Schedule 8 hereto. Notices shall be effective upon receipt.
23. GOVERNING LAW AND JURISDICTION. This agreement shall be governed by and
construed in accordance with the laws of the State of New York without reference
to conflict of law provisions thereof. The parties hereto hereby irrevocably
consent to the exclusive jurisdiction of (and waive dispute of venue in) the
courts of the State of New York and the federal courts located in New York City
in the Borough of Manhattan.
24. AMENDMENT AND EFFECT. This Agreement shall not be modified or amended
except by an instrument in writing signed by the parties hereto. This Agreement
supersedes any other agreement between the parties hereto concerning loans of
securities owned by the Portfolios. This Agreement shall not be assigned by any
party without the prior written consent of the other parties. This Agreement may
be executed in several counterparts each of which shall be an original and all
of which shall constitute one and the same. This Agreement constitutes the
entire understanding of the parties hereto with respect to the subject matter
hereof.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed in its name and behalf as of the day and year first set forth above.
XXXXXXXX XXXXXXXXX INSTITUTIONAL FUNDS, ON
BEHALF OF EACH OF THE PORTFOLIOS LISTED ON
THE ATTACHED APPENDIX A, AS SUCH APPENDIX
MAY BE AMENDED FROM TIME TO TIME HEREAFTER,
AS FUND
By
------------------------------------------
Name:
Title:
XXXXX BROTHERS XXXXXXXX & CO. AS AGENT
By
------------------------------------------
Name:
Title:
9
APPENDIX A
PORTFOLIOS
Xxxxxxxx Xxxxxxxxx Convertible Fund
Xxxxxxxx Xxxxxxxxx Emerging Countries Series
Xxxxxxxx Xxxxxxxxx Global Blue Chip Fund
Xxxxxxxx Xxxxxxxxx Global Health Care Fund
Xxxxxxxx Xxxxxxxxx Global Technology Fund
Xxxxxxxx Xxxxxxxxx High Quality Bond Fund
Xxxxxxxx Xxxxxxxxx High Yield Bond Fund
Xxxxxxxx Xxxxxxxxx International Core Growth Fund
Xxxxxxxx Xxxxxxxxx International Small Cap Growth Fund
Xxxxxxxx Xxxxxxxxx International Structured Fund
Xxxxxxxx Xxxxxxxxx Large Cap Growth Fund
Xxxxxxxx Xxxxxxxxx Latin America Fund
Xxxxxxxx Xxxxxxxxx Mid Cap Growth Fund
Xxxxxxxx Xxxxxxxxx Mini Cap Growth Fund
Xxxxxxxx Xxxxxxxxx Pacific Rim Fund
Xxxxxxxx Xxxxxxxxx Short Intermediate Fixed Income Fund
Xxxxxxxx Xxxxxxxxx Small Cap Growth Fund
Xxxxxxxx Xxxxxxxxx Small Cap Value Fund
Xxxxxxxx Xxxxxxxxx Southeast Asia Fund Ltd.
Xxxxxxxx Xxxxxxxxx Value Fund
Xxxxxxxx Xxxxxxxxx Worldwide Growth Fund
10
SCHEDULE 1
AVAILABLE SECURITIES
All Securities held in custody at BBH
11
SCHEDULE 2
APPROVED BORROWERS
Barclays Capital Inc.
Bear, Xxxxxxx Securities Corp.
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxxx, Sachs & Co.
ING Barings Corp.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
MS Securities Services Inc.
Xxxxxxx Xxxxx Barney Inc.
XX Xxxxx Securities Corporation
UBS Warburg LLC
12
SCHEDULE 3
FORM OF SECURITIES LOAN AGREEMENT
13
SCHEDULE 4
List of Approved
Issuers of Letters of Credit
N/A
14
SCHEDULE 5
PERMITTED INVESTMENTS
FOR CASH COLLATERAL
Prime Obligations Fund (Institutional Shares)
Prime Cash Obligations Fund (Institutional Shares)
15
SCHEDULE 6
LIST OF APPROVED PERSONS
For the Fund: For the Agent:
Such persons so designated Xxxxxxxxx X. Xxxxxxx
by the Fund from time to time Xxxxxx X. Xxxxxxx
as Authorized Persons under the Custodian Xxxxxxx X. Xxxxx
Agreement Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxx
16
SCHEDULE 7
FEES
For each cash collateralized loans effected hereunder, 25% of the difference
between (i) the income earned on the investment of cash Collateral held with
respect to such loan (after deduction of any custody, investment, management or
related fees) and (ii) the Cash Collateral Fee (as defined in the applicable
SLA) paid to the borrower in respect of such loan.
For each non-cash collateralized loan effected hereunder, 25% of the Loan Fee
(as defined in the applicable SLA) paid by the borrower with respect to such
loan.
In addition, for each loan described above and effected hereunder, a transaction
charge as set forth in Schedule 7A hereto shall apply to a delivery of a loan
and the return of a loan.
17
SCHEDULE 8
NOTICES
If to the Fund:
Address: 000 Xxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Agent:
Address: 00 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
18
FIRST AMENDMENT TO SECURITIES LENDING AGENCY AGREEMENT
This First Amendment to Securities Lending Agency Agreement is dated as
of October , 2002 by and between Xxxxxxxx Xxxxxxxxx Institutional Funds, an
open-end investment company (the "Fund") acting on behalf of each of the
portfolios listed on the attached Appendix A (each a "Portfolio" and
collectively, the "Portfolios") and Xxxxx Brothers Xxxxxxxx & Co. ("BBH").
Whereas pursuant to a Securities Lending Agency Agreement dated as of
August 1, 2001 by and between BBH and the Fund on behalf of each Portfolio, as
amended to date (the "Agreement"), BBH has been appointed its lending agent for
the purpose of lending securities to approved borrowers on behalf of the Fund
acting on behalf of each Portfolio;
Whereas the Fund and BBH have agreed to make certain modifications in
the terms of the Agreement to remove certain Portfolios and to accept certain
new Approved Borrowers and Approved Persons, each under the Agreement;
Now therefore, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties hereby agree to amend the
Agreement as follows:
I. AMENDMENT TO THE AGREEMENT
The Agreement is hereby amended by deleting Appendix A and Schedules 2
and 6 thereto, each in its entirety and substituting therefor Appendix A and
Schedules 2 and 6 attached hereto.
II. MISCELLANEOUS
1. Other than as amended hereby, all terms and provisions of the Agreement
are hereby ratified and affirmed as of the date hereof and are hereby extended
to give effect to the terms hereof.
2. By signing below where indicated, the Fund on behalf of each Portfolio
hereby ratifies and affirms each of the representations and warranties set forth
in the Agreement and confirms that each representation and warranty remains true
and correct as of the date hereof.
3. Upon receipt by BBH of a fully executed copy of this First Amendment,
this First Amendment shall be deemed to be executed as an instrument under seal
and governed by such laws as provided in Section 23 of the Agreement. This First
Amendment may be executed in original counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
First Amendment.
XXXXX BROTHERS XXXXXXXX & CO.
AS AGENT
By:
----------------------------
Name:
Title:
XXXXXXXX XXXXXXXXX INSTITUTIONAL FUNDS, on behalf of each
Of the Portfolios listed on the attached Appendix A
AS FUND
By:
----------------------------
Name:
Title:
APPENDIX A
PORTFOLIOS
Xxxxxxxx Xxxxxxxxx Convertible Fund
Xxxxxxxx Xxxxxxxxx Emerging Countries Fund
Xxxxxxxx Xxxxxxxxx Global Select Fund
Xxxxxxxx Xxxxxxxxx Global Health Care Fund
Xxxxxxxx Xxxxxxxxx Global Technology Fund
Xxxxxxxx Xxxxxxxxx High Yield Bond Fund
Xxxxxxxx Xxxxxxxxx International Core Growth Fund
Xxxxxxxx Xxxxxxxxx International Growth Opportunities Fund
Xxxxxxxx Xxxxxxxxx International Structured Fund
Xxxxxxxx Xxxxxxxxx U.S. Large Cap Select Growth Fund
Xxxxxxxx Xxxxxxxxx Value Opportunities Fund
Xxxxxxxx Xxxxxxxxx Large Cap Value Fund
Xxxxxxxx Xxxxxxxxx Worldwide Growth Fund
SCHEDULE 2
APPROVED BORROWERS
ABN AMRO Incorporated
Barclays Capital Inc.
Bear, Xxxxxxx & Co. Inc.
Bear, Xxxxxxx Securities Corp.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
Xxxxxxx, Sachs & Co.
HSBC Securities (USA) Inc.
ING Financial Markets LLC
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
MS Securities Services Inc.
Xxxxxxx Xxxxx Barney Inc.
XX Xxxxx Securities Corporation
UBS PaineWebber Inc.
UBS Warburg LLC
SCHEDULE 6
LIST OF APPROVED PERSONS
For the Fund: For the Agent:
Such persons so designated Xxxxxxxxx X. Xxxxxxx
by the Fund from time to time Xxxxxx X. Xxxxxxx
As Authorized Persons under the Custodian Xxxx X. XxXxxx
Agreement Xxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxx
SECOND AMENDMENT TO SECURITIES LENDING AGENCY AGREEMENT
This Second Amendment to Securities Lending Agency Agreement is dated
as of April 1, 2003 by and between Xxxxxxxx Xxxxxxxxx Institutional Funds, an
open-end investment company (the "Fund") acting on behalf of each of the
portfolios listed on the attached Appendix A (each a "Portfolio" and
collectively, the "Portfolios") and Xxxxx Brothers Xxxxxxxx & Co. ("BBH").
Whereas pursuant to a Securities Lending Agency Agreement dated as of
August 1, 2001 by and between BBH and the Fund on behalf of each Portfolio, as
amended to date (the "Agreement"), BBH has been appointed its lending agent for
the purpose of lending securities to approved borrowers on behalf of the Fund
acting on behalf of each Portfolio;
Whereas the Fund and BBH have agreed to make certain modifications in
the terms of the Agreement to reflect such changes together with such other
modifications as the parties have agreed;
Now therefore, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties hereby agree to amend the
Agreement as follows:
I. AMENDMENT TO THE AGREEMENT
The Agreement is hereby amended by (i) deleting Schedule 7 thereto in
its entirety and substituting therefor Schedule 7 attached hereto and (ii)
deleting Schedule 7A in its entirety.
II. MISCELLANEOUS
1. Other than as amended hereby, all terms and provisions of the Agreement are
hereby ratified and affirmed as of the date hereof and are hereby extended to
give effect to the terms hereof.
2. By signing below where indicated, the Fund on behalf of each Portfolio
hereby ratifies and affirms each of the representations and warranties set forth
in the Agreement and confirms that each representation and warranty remains true
and correct as of the date hereof.
3. Upon receipt by BBH of a fully executed copy of this Second Amendment,
this Second Amendment shall be deemed to be executed as an instrument under seal
and governed by such laws as provided in Section 23 of the Agreement. This
Second Amendment may be executed in original counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same Second Amendment.
XXXXX BROTHERS XXXXXXXX & CO.
AS AGENT
By:
----------------------------
Name:
Title:
XXXXXXXX XXXXXXXXX INSTITUTIONAL FUNDS, on behalf of each
Of the Portfolios listed on the attached Appendix A
AS FUND
By:
----------------------------
Name:
Title:
APPENDIX A
PORTFOLIOS
Xxxxxxxx Xxxxxxxxx Convertible Fund
Xxxxxxxx Xxxxxxxxx Emerging Countries Fund
Xxxxxxxx Xxxxxxxxx Global Select Fund
Xxxxxxxx Xxxxxxxxx High Yield Bond Fund
Xxxxxxxx Xxxxxxxxx International Core Growth Fund
Xxxxxxxx Xxxxxxxxx International Growth Opportunities Fund
Xxxxxxxx Xxxxxxxxx International Structured Fund
Xxxxxxxx Xxxxxxxxx U.S. Large Cap Select Growth Fund
Xxxxxxxx Xxxxxxxxx Value Opportunities Fund
Xxxxxxxx Xxxxxxxxx Large Cap Value Fund
Xxxxxxxx Xxxxxxxxx Worldwide Growth Fund
SCHEDULE 7
COMPENSATION TO AGENT
CREDITS TO FUND
1. COMPENSATION OF AGENT
For each cash collateralized loan effected hereunder, 25% of the difference
between (i) the income earned on the investment of cash Collateral held with
respect to such loan (after deduction of any custody, investment, management or
related fees) and (ii) the Cash Collateral Fee (as defined in the applicable
SLA) paid to the borrower in respect of such loan.
For each non-cash collateralized loan effected hereunder, 25% of the Loan Fee
(as defined in the applicable SLA) paid by the borrower with respect to such
loan.
In addition, for each loan described above and effected hereunder, a transaction
charge as set forth in Schedule 7A hereto shall apply to a delivery of a loan
and the return of a loan.
2. CREDITS TO THE FUND
For each cash collateralized loan effected hereunder, 75% of the difference
between (i) the income earned on the investment of cash Collateral held with
respect to such loan (after deduction of any custody, investment, management or
related fees) and (ii) the Cash Collateral Fee (as defined in the applicable
SLA) paid to the borrower in respect of such loan.
For each non-cash collateralized loan effected hereunder, 75% of the Loan Fee
(as defined in the applicable SLA) paid by the borrower with respect to such
loan.
Such amounts shall be available as credits to the Fund to defray certain Fund
expenses including but not limited to:
custody fees and expenses
fund accounting & admin fees and expenses
transfer agent fees and expenses
professional fees shareholder
reporting fees and expenses
registration fees
insurance
investment advisory fees and expenses
transaction charges
Such credits shall be administered pursuant to Proper Instructions on behalf of
the Funds.
THIRD AMENDMENT TO SECURITIES LENDING AGENCY AGREEMENT
This Third Amendment to Securities Lending Agency Agreement is dated as of
May , 2003 by and between Xxxxxxxx Xxxxxxxxx Institutional Funds, an open-end
investment company (the "Fund") acting on behalf of each of the portfolios
listed on the attached Appendix A (each a "Portfolio" and collectively, the
"Portfolios") and Xxxxx Brothers Xxxxxxxx & Co. ("BBH").
Whereas pursuant to a Securities Lending Agency Agreement dated as of
August 1, 2001 by and between BBH and the Fund on behalf of each Portfolio, as
amended to date (the "Agreement"), BBH has been appointed its lending agent for
the purpose of lending securities to approved borrowers on behalf of the Fund
acting on behalf of each Portfolio;
Whereas the Fund has requested, and BBH has agreed, to make certain
modifications to the terms of the Agreement to permit certain new Portfolios to
appoint BBH as their lending agent under the Agreement.
Now therefore, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties hereby agree to amend the
Agreement as follows:
I. AMENDMENT TO THE AGREEMENT
--------------------------
The Agreement is hereby amended by deleting Appendix A thereto in its
entirety and substituting therefor Appendix A attached hereto.
II. MISCELLANEOUS
-------------
1. Other than as amended hereby, all terms and provisions of the Agreement are
hereby ratified and affirmed as of the date hereof and are hereby extended to
give effect to the terms hereof.
2. By signing below where indicated, the Fund on behalf of each Portfolio
hereby ratifies and affirms each of the representations and warranties set forth
in the Agreement and confirms that each representation and warranty remains true
and correct as of the date hereof.
3. Upon receipt by BBH of a fully executed copy of this Third Amendment, this
Third Amendment shall be deemed to be executed as an instrument under seal and
governed by such laws as provided in Section 23 of the Agreement. This Third
Amendment may be executed in original counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
Third Amendment.
XXXXX BROTHERS XXXXXXXX & CO.
AS AGENT
By:____________________________
Name:
Title:
XXXXXXXX XXXXXXXXX INSTITUTIONAL FUNDS, on behalf of each
of the Portfolios listed on the attached Appendix A
AS FUND
By:____________________________
Name:
Title:
APPENDIX A
Portfolios
----------
Xxxxxxxx Xxxxxxxxx Convertible Fund
Xxxxxxxx Xxxxxxxxx Emerging Countries Fund
Xxxxxxxx Xxxxxxxxx Global Select Fund
Xxxxxxxx Xxxxxxxxx High Yield Bond Fund
Xxxxxxxx Xxxxxxxxx International Core Growth Fund
Xxxxxxxx Xxxxxxxxx International Growth Opportunities Fund
Xxxxxxxx Xxxxxxxxx International Structured Fund
Xxxxxxxx Xxxxxxxxx U.S. Large Cap Select Growth Fund
Xxxxxxxx Xxxxxxxxx Value Opportunities Fund
Xxxxxxxx Xxxxxxxxx Large Cap Value Fund
Xxxxxxxx Xxxxxxxxx Worldwide Growth Fund
Xxxxxxxx Xxxxxxxxx U.S. Equity Growth Fund
Xxxxxxxx Xxxxxxxxx Emerging Growth Fund
Xxxxxxxx Xxxxxxxxx Growth Discovery Fund
