Exhibit g.3
SECURITIES LENDING AGENCY AGREEMENT
BETWEEN
BARCLAYS GLOBAL INVESTORS, N.A.
AND
iSHARES, INC. AND iSHARES TRUST
SECURITIES LENDING AGENCY AGREEMENT
AGREEMENT, dated as of _______, 2003, between iShares, Inc., a Maryland
Corporation, and iShares Trust, a Delaware statutory trust (both singly and
together, the "Client"), acting on behalf of the funds listed on Schedule A
hereto and any future series or portfolio of the Client (each fund, a "Lender"),
and Barclays Global Investors, N.A., a national banking association ("BGI").
WHEREAS, the Client is registered as an open-end investment company under
the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Client desires to appoint BGI as its agent for the purpose of
lending securities in the Account (as defined below) as more fully set forth
below; and
WHEREAS, BGI has agreed to act as the Client'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 Lending Agreement.
1.1 "Account" shall mean the custodial account or accounts established and
maintained by the Custodian on behalf of each Lender for the safekeeping of
securities and monies of the Lender from time to time.
1.2 "Approved Investment" shall mean any type of investment permitted under
the Joint Account Procedures attached as Schedule I hereto (the "Procedures")
(which may be amended from time to time to add additional Approved Investments
with the consent of BGI and the Client, or to delete any Approved Investment at
the written direction of the Client).
1.3 "Authorized Person" shall be any officer of the Client and any other
person, whether or not any such person is an officer or employee of the Client,
duly authorized by corporate resolutions of the Board of Trustees of the Client
to give Oral and/or Written Instructions on behalf of the Client, 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 with the consent of BGI and the
Client, or to delete any Borrower at the direction of the Client). Each Borrower
that is an "affiliated person," as defined in the 1940 Act, of any Lender, or an
affiliated person of such affiliated person (each, an "Affiliated Borrower")
shall be identified as such on Schedule II hereto. BGI shall only lend
securities on behalf of the Lenders to such Affiliated Borrowers in accordance
with Section 4.12 of this Agreement.
BGI shall be responsible for monitoring whether a Borrower that was not
previously designated as an Affiliated Borrower becomes an Affiliated Borrower
and shall promptly notify the Client of such Affiliated Borrower and take
appropriate action to either prevent the applicable Lenders from engaging in a
Loan with the Affiliated Borrower, or continue to lend securities to the
Affiliated Borrower in accordance with Section 4.12 of this Agreement.
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
BGI, which is actually received by BGI and signed on behalf of the Client by an
Authorized Person or a person reasonably believed by BGI to be an Authorized
Person.
1.8 "Collateral" shall mean Cash Collateral unless BGI and the Client have
agreed in writing to additional collateral, including Government Securities and
Letters of Credit.
1.9 "Collateral Account" shall mean a segregated account or accounts
established and maintained by the Custodian for the purpose of holding
Collateral and Approved Investments, and interest, dividends and other payments
and distributions received with respect to Collateral and Approved Investments
("Distributions"). A Collateral Account may include a joint account as defined
in the Procedures.
1.10 "Custodian" shall mean Investors Bank & Trust Company, a trust company
organized and existing under the laws of the Commonwealth of Massachusetts.
1.11 "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 Client.
1.12 "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.
1.13 "Earnings Account" shall mean a segregated account established and
maintained by the Custodian for the purpose of receiving any Securities Loan Fee
paid by Borrowers in connection with securities loans hereunder.
1.14 "Letter of Credit" shall mean a clean, unconditional and irrevocable
letter of credit in favor of BGI as agent for the Lender issued by a bank from a
list as may be amended by the parties from time to time, or to delete any bank
at the written direction of the Client.
1.15 "Oral Instructions" shall mean verbal instructions actually received
by BGI from an Authorized Person or from a person reasonably believed by BGI to
be an Authorized Person.
1.16 "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.
1.17 "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.
1.18 "Securities Lending Agreement" shall mean with respect to any
Borrower, the agreement pursuant to which BGI lends securities on behalf of its
customers (including the Lender) to such Borrower as may be amended from time to
time. Attached hereto as Exhibit A are the forms of Securities Lending
Agreements in effect between BGI and the Borrowers as of the date hereof.
1.19 "Securities Loan Fee" shall mean the amount payable by a Borrower to
BGI, as agent for the Lender, pursuant to the applicable Securities Lending
Agreement in connection with Securities loans, if any, collateralized by
Collateral other than Cash Collateral.
1.20 "Security" shall mean any Government Securities, non-U.S. securities,
U.S. 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
2
evidencing or representing any other rights or interests therein, which are
available for lending pursuant to Section 2.2 of this Agreement.
1.21 "Written Instructions" shall mean written communications actually
received by BGI from an Authorized Person or from a person reasonably believed
by BGI 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 BGI 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 Client hereby appoints BGI as its agent to lend
Securities in the Account to Borrowers from time to time as hereinafter set
forth, and BGI hereby accepts appointment as such agent and agrees to so act.
2.2 Securities Subject to Lending. Unless the Client provides otherwise in
a written list given to BGI, all Securities maintained in the Account shall be
available for lending pursuant to this Agreement.
2.3 Securities Lending Agreement. The Lender hereby acknowledges receipt of
a form of Securities Lending Agreement for use with respect to each Borrower.
BGI is hereby authorized to lend Securities in the Account to Borrowers pursuant
to such agreements. BGI shall provide the Client with any proposed material
amendments or changes to such agreements prior to their effectiveness. The
Client may elect, without penalty, to terminate any Borrower from Schedule II if
it opposes the change.
2.4 Loan Opportunities. The Client on behalf of each Lender acknowledges
and agrees that BGI shall have the right to decline to make any loans of
Securities under any Securities Lending Agreement and to discontinue lending
under any Securities Lending Agreement in its sole discretion and without notice
to the Client. The Client on behalf of each Lender agrees that it shall have no
claim against BGI based on, or relating to, loans made for other customers or
for BGI's own account, or loan opportunities refused hereunder, whether or not
BGI has made fewer or more loans for any other customer or for BGI's own account
than for the Lender, and whether or not any loan for another customer or for
BGI's own account, or the opportunity refused, could have resulted in loans made
hereunder.
2.5 Use of Book-Entry System and Depositories. The Client on behalf of each
Lender hereby authorizes BGI 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,
BGI shall identify as belonging to the Lender a quantity of securities in a
fungible bulk of securities shown on BGI'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
commingled in accounts which include assets held by BGI for customers, including
but not limited to accounts in which BGI acts in a fiduciary or agency capacity,
as well as assets held by or on behalf of other clients or participants of the
Book-Entry System or Depository.
3. Representations and Warranties.
3.1 Client's Representations The Client hereby represents and warrants to
BGI, 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 has been approved by the Board of Trustees of the
Client and the Approved Investments have been and will be annually determined to
be in the best interests of shareholders of each Lender; this Agreement is, and
each Securities loan and Approved Investment will be, legally and validly
entered into by the Client on behalf of each Lender, does not, and will not,
violate any statute, regulation, rule, order or, judgment binding on the Lender,
or any provision of the Client's charter or by-laws, or any agreement binding on
the Client or
3
affecting its property, and is enforceable against the Client and each 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 Client or any Lender has and have been duly and properly
authorized to do so;
(c) Each Lender 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 Client
on behalf of each Lender has no present intention to sell any of the Securities
subject to lending. The Client shall promptly add to 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 BGI's Representations BGI hereby represents and warrants to the Client,
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 BGI, does
not and will not, violate any statute, regulation, rule, order or, judgment
binding on BGI, or any provision of BGI's charter or by-laws, or any agreement
binding on BGI or affecting its property, and is enforceable against BGI 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 BGI and all
persons acting on BGI's behalf pursuant to this Agreement have been duly and
properly authorized to do so.
(c) It will comply with all laws, rules and regulations applicable to
the securities lending transactions contemplated by this Agreement.
4. Securities Lending Transactions.
4.l Compliance with Securities Lending Guidelines. BGI hereby acknowledges
receipt of the current Securities Lending Guidelines as approved by the Client's
Board of Trustees. The Client will notify BGI of any changes to the Securities
Lending Guidelines. BGI acknowledges and agrees that it shall only lend
Securities on behalf of the Lenders in accordance with the conditions of the
Securities Lending Guidelines applicable to the Lenders' lending agent.
4.2 Loan Initiation. From time to time BGI may lend Securities to Borrowers
and deliver such Securities against receipt of Collateral in accordance with the
applicable Securities Lending Agreement. If instructed by the Client in writing,
BGI will refrain from lending a particular security or from making loans to a
particular Borrower.
4.3 Receipt of Collateral; Approved Investments.
(a) For each loan hereunder BGI shall (i) initially receive Cash
Collateral equivalent to no less than 102% (105% in the case of loans of foreign
securities denominated in non-U.S. dollars) 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 Lending Agreement), and BGI 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 Investments. BGI shall instruct the Custodian to credit all Collateral,
Approved Investments and Distributions received with respect to
4
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 Lending Agreement, the Lender agrees to pay BGI 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, BGI, and BGI shall not
be required to comply with any instructions of the Lender with respect to the
same.
4.4 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 Custodian. 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
declared payable whether or not it has been received by the Borrower, provided
that any such addition shall be conditional upon the actual receipt of such
non-cash distribution and may be reversed by the Custodian to the extent that
such non-cash distribution is not received.
4.5 Xxxx to Market. BGI 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 Lending
Agreement.
4.6 Collateral Substitutions. BGI shall accept substitutions of Collateral
in accordance with the applicable Securities Lending 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 BGI and the Client,
no other Collateral may be substituted for Cash Collateral. BGI will not accept
Letters of Credit as Collateral hereunder from any Borrower unless the
Securities Lending Agreement with such Borrower provides that in the event of a
material adverse change in the financial condition of any bank issuing a Letter
of Credit that serves as Collateral thereunder, the Borrower will be required to
immediately substitute Cash Collateral or appropriate securities Collateral for
such Letter of Credit.
4.7 Termination of Loans. BGI shall terminate any Securities loan to a
Borrower in accordance with the applicable Securities Lending Agreement as soon
as practicable after:
(a) receipt by BGI of a notice of termination pursuant to the
Securities Lending Agreement;
(b) receipt by BGI of Written Instructions instructing it to
terminate a Securities loan; provided that the Client may require that each
Security must be returned to the Lender by no later than the date which is the
standard settlement date for trades of such Security entered into on the date of
such Written Instruction;
(c) receipt by BGI of Written Instructions deleting the Borrower to
whom such loan was made from Schedule II hereto;
(d) BGI's becoming aware of the occurrence of any default pursuant to
the applicable Securities Lending Agreement requiring termination of such loan;
or
(e) whenever BGI, in its sole discretion, elects to terminate such
loan.
4.8 Securities Loan Fee. BGI shall receive any applicable Securities Loan
Fee paid by Borrowers pursuant to the Securities Lending Agreement and credit
all such amounts received to the Earnings Account.
5
4.9 The Borrower's Financial Condition. Upon request, BGI will make
available to the Lender each of the Borrower's most recent statements that have
been made available to BGI pursuant to the Securities Lending Agreements.
4.10 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 Lending
Agreement.
4.11 BGI's Obligation. Except as specifically set forth herein, or in any
applicable Securities Lending Agreement, BGI 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 Lending Agreement.
4.12 Loans to Affiliated Borrowers. The Client and BGI have obtained an
exemptive order from the Securities and Exchange Commission that permits BGI to
lend securities on behalf of the Lenders to Affiliated Borrowers, provided that
such loans are made in accordance with the conditions and procedures outlined in
the exemptive order. BGI shall only make loans to Affiliated Borrowers in
accordance with such conditions and procedures.
5. Concerning BGI.
5.1 Standard of Care: Indemnification.
(a) It is expressly understood and agreed that in exercising its
rights and performing its obligations hereunder, BGI owes no fiduciary duty to
the Lender. BGI shall not be liable for any costs, expenses, damages,
liabilities or claims (including reasonable attorneys and accountants fees)
incurred by the Lender, except to the extent those costs, expenses, damages,
liabilities or claims result from BGI's material breach of this Agreement or
BGI's negligence, willful misconduct, bad faith, or reckless disregard of its
obligations and duties hereunder.
Neither the Client nor BGI shall have any 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 either party be liable to the other
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 Client on behalf of each Lender agrees to indemnify BGI 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
BGI may sustain or incur or which may be asserted against BGI by reason of or as
a result of any action taken or omitted by BGI in connection with or arising out
of BGI's operating under and in compliance with this Agreement, except those
costs, expenses, damages, liabilities or claims arising out of BGI's negligence,
bad faith, willful misconduct, or reckless disregard of its obligations and
duties hereunder. 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 BGI to be genuine or bearing the signature of
a person or persons reasonably believed by BGI 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) BGI shall indemnify and hold harmless each client, Lender, its
Board of Trustees and its agents and Barclays Global Fund Advisors from any and
all loss, liability, costs, damages, actions, and claims ("Loss") to the extent
that any such Loss arises out of the material breach of this Agreement by or
negligent acts or omissions or willful misconduct of BGI, its officers,
directors or employees or any of its agents or subcustodians in connection with
the securities lending activities undertaken pursuant to this Agreement,
provided that BGI's indemnification obligation with respect to the acts or
omissions of its subcustodians shall not exceed the indemnification provided by
the applicable subcustodian to BGI. The Lender and/or client may obtain
indemnification against losses due to a borrower default from a third party,
including from an affiliate of BGI. BGI is not a party to any such arrangement.
6
5.2 No Obligation to Inquire. Without limiting the generality of the
foregoing, BGI 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.
5.3 Advice of Counsel. BGI may, with respect to questions of law, apply
for and obtain the advice and opinion of counsel which may be counsel to the
Client, provided that the foregoing shall not be deemed to be a waiver by the
Client of any conflict of such counsel.
5.4 No Collection Obligations. BGI 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.
5.5 Pricing Methods. BGI is authorized to utilize any recognized pricing
information service or any other means of valuation specified in the applicable
Securities Lending 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 BGI harmless from and
against any loss or damage suffered or incurred as a result of errors or
omissions of any such Pricing Methods.
5.6 Agent's Fee.
(a) In connection with each Securities loan hereunder, the Lender
shall pay to BGI fifty percent of the net amount earned from securities lending
activities, consisting of income earned on the investment and reinvestment of
cash collateral plus any fees otherwise paid by Borowers. The net amount to be
credited shall be computed after deducting the rebate paid to the Borrowers per
agreement with the Borrowers. BGI will be responsible for all transaction fees
and all other operational costs relating to securities lending activities.
(b) BGI is authorized on a monthly basis to charge the fee owed by
the Lender under this paragraph against the applicable Collateral Account. Such
fee shall be charged and paid at the end of each month.
5.7 Reliance On Certificates and Instructions. BGI 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 BGI and reasonably believed by BGI to be duly
authorized and delivered. The Client agrees to forward to BGI Written
Instructions confirming Oral Instructions in such manner so that such Written
Instructions are received by BGI by the close of business of the same day that
such Oral Instructions are given to BGI. The Client agrees that the fact that
such confirming Written Instructions are not received on a timely basis or that
contrary instructions are received by BGI shall in no way affect the validity or
enforceability of the transactions authorized by the Client. BGI will use
reasonable efforts to report any subsequently received contrary instructions. In
this regard, the records of BGI shall be presumed to reflect accurately any Oral
Instructions given by an Authorized Person or a person reasonably believed by
BGI to be an Authorized Person.
5.8 Disclosure of Account Information. BGI may not disclose or supply any
information regarding the Account unless required by any law or governmental
regulation now or hereafter in effect or requested to do so by Client; provided
that BGI may disclose or supply information regarding the Account as necessary
in the sole discretion of BGI in order to facilitate, effect or continue any
loans hereunder.
5.9 Reports. BGI will furnish the Client and the Lender with reports
relating to loans hereunder and other information requested by the Client and
shall provide such reports to the Client's Board of Trustees upon request or as
required by the Securities Lending Guidelines.
5.10 Force Majeure. Notwithstanding anything to the contrary in this
Agreement, in no event shall a party to this Agreement be liable to the other
party or any third party for losses resulting from (i) any acts of God, fires,
floods, or other disturbances of nature, epidemics, strikes, riots,
nationalization, expropriation, currency restrictions, or insurrection, or (ii)
other happenings or events beyond the reasonable control or anticipation of the
party affected,
7
provided that (A) the affected party has in place appropriate business
resumption procedures, systems and facilities and (B) the affected party uses
its best efforts to avoid or remove the cause of such losses.
5.11 No Implied Duties.
(a) BGI 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 Lending Agreement, and no covenant or
obligation shall be implied against BGI in connection with this Agreement.
(b) Neither the Client nor any Lender shall have any 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 Client or any 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 Client 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 any Lender of any securities held by BGI in the Account from
time to time. The parties agree that this provision does not prohibit the Client
maintaining an agreement with its existing securities lending agent during an
initial transition period to BGI.
7.2 Certificates. The Client agrees to furnish to BGI a new Certificate in
the event that any then 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, BGI 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 BGI, shall be sufficiently given if addressed
to BGI and received by it at its offices at 00 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, XX
00000, Attention: Securities Lending Department, with a copy to: Xxxxxx Xxxxxx,
General Counsel or at such other place as BGI 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 Client shall be sufficiently given if
addressed to the Lender and mailed or delivered toMaster Investment Portfolio or
the Barclays Global Investors Funds, Fund Administration, c/o Barclays Global
Fund Advisors, 00 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,xxxx a copy
to: Legal Department, or at such other place as the Client 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.
8
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 State of New York without regard to
conflict of laws principles thereof.
7.9 No Third Party Beneficiaries. In performing hereunder, BGI is acting
solely on behalf of the Client and, except as specifically provided herein, no
contractual or service relationship shall be deemed to be established hereby
between BGI 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 BGI 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.
7.12 Survival of Indemnification. The indemnifications provided by a party
hereunder shall be a continuing obligation of such party, its successors and
assigns, notwithstanding the termination of any loans hereunder or of this
Agreement.
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.
iSHARES, INC.
By:
------------------------------
Title:
iSHARES TRUST
By:
------------------------------
Title:
BARCLAYS GLOBAL INVESTORS, N.A.
By:
------------------------------
Title:
By:
------------------------------
Title:
9
Schedule A
Lenders
iShares MSCI Austria Index Series
iShares MSCI Australia Index Series
iShares MSCI Belgium Index Series
iShares MSCI Canada Index Series
iShares MSCI France Index Series
iShares MSCI Germany Index Series
iShares MSCI Hong Kong Index Series
iShares MSCI Italy Index Series
iShares MSCI Japan Index Series
iShares MSCI Malaysia Index Series
iShares MSCI Mexico Index Series
iShares MSCI Netherlands Index Series
iShares MSCI Singapore Index Series
iShares MSCI Spain Index Series
iShares MSCI Sweden Index Series
iShares MSCI Switzerland Index Series
iShares MSCI United Kingdom Index Series
iShares Dow Xxxxx U.S. Technology Sector Index Fund
iShares Dow Xxxxx U.S. Financial Sector Index Fund
iShares Dow Xxxxx U.S. Internet Sector Index Fund
iShares Dow Xxxxx U.S. Telecommunications Sector Index Fund
iShares Xxxxxxx 1000 Index Fund
iShares Xxxxxxx 1000 Growth Index Fund
iShares Xxxxxxx 1000 Value Index Fund
iShares Xxxxxxx 2000 Index Fund
iShares Xxxxxxx 3000 Index Fund
iShares S&P 500 Index Fund
iShares S&P 500/BARRA Growth Index Fund
iShares S&P 500/BARRA Value Index Fund
iShares S&P MidCap 400 Index Fund
iShares S&P SmallCap 600 Index Fund
iShares MSCI Taiwan Index Series
iShares MSCI South Korea Index Series
iShares Dow Xxxxx U.S. Healthcare Sector Index Fund
iShares Dow Xxxxx U.S. Industrial Sector Index Fund
iShares Dow Xxxxx U.S. Basic Materials Sector Index Fund
iShares Dow Xxxxx U.S. Chemicals Sector Index Fund
iShares Dow Xxxxx U.S. Consumer Cyclical Sector Index Fund
iShares Dow Xxxxx U.S. Consumer Non-Cyclical Sector Index Fund
iShares Dow Xxxxx U.S. Energy Sector Index Fund
iShares Dow Xxxxx U.S. Financial Services Fund
iShares Dow Xxxxx U.S. Real Estate Sector Index Fund
iShares Dow Xxxxx U.S. Total Market Fund
iShares Dow Xxxxx U.S. Utilities Sector Index Fund
iShares S&P Europe 350 Index Fund
iShares S&P/TSE 60 Index Fund
iShares MSCI EMU Index Series
iShares MSCI Brazil Index Series
iShares Xxxxxxx 2000 Growth Index Fund
iShares Xxxxxxx 2000 Value Index Fund
iShares Xxxxxxx 3000 Growth Index Fund
iShares Xxxxxxx 3000 Value Index Fund
iShares S&P MidCap 400/Barra Growth Index Fund
iShares S&P MidCap 400/Barra Value Index Fund
iShares S&P SmallCap 600/Barra Growth Index Fund
iShares S&P SmallCap 600/Barra Value Index Fund
iShares S&P 100 Index Fund
iShares S&P Global 100 Index Fund
iShares Xxxxx & Steers Realty Majors Index Fund
iShares NASDAQ Biotech Index Fund
iShares Xxxxxxx Xxxxx Technology Index Fund
iShares Xxxxxxx Midcap Growth Index Fund
iShares Xxxxxxx Xxxxxx Index Fund
iShares Xxxxxxx Midcap Value Index Fund
iShares GSTI Multimedia Networking Index Fund
iShares GSTI Semiconductors Index Fund
iShares GSTI Software Index Fund
iShares MSCI EAFE Index Fund
iShares Xxxxxxx Xxxxx Natural Resources Index Fund
iShares S&P Latin America 40 Index Fund
iShares S&P/TOPIX 150 Index Fund
iShares MSCI Pacific ex-Japan Index Fund
iShares S&P Global Energy Index Fund
iShares S&P Global Consumer Staples Index Fund
iShares S&P Global Telecommunications Index Fund
iShares S&P Global Healthcare Index Fund
iShares S&P Global Financials Index Fund
iShares S&P Global Utilities Index Fund
iShares S&P Global Information Technology Index Fund
iShares GS $ InvesTop Corporate Bond Fund
iShares Xxxxxx 1-3 Years Treasury Index Fund
iShares Xxxxxx 20+ Years Treasury Index Fund
iShares Xxxxxx 7-10 Years Treasury Index Fund
Schedule I
iShares, Inc. and iShares Trust
Joint Account Procedures
The Board of Directors of iShares, Inc. and the Board of Trustees of
iShares Trust (the "Boards") (collectively, the "Trusts"), including a majority
of the Directors and Trustees who are not interested persons thereof (the
"Independent Directors and Trustees"), have determined that the following
procedures (the "Procedures") should be maintained in the best interests of each
Fund/Portfolio ("Fund") of the Trusts and its interestholders, and that such
Procedures are reasonably designed to ensure that cash collateral received in
connection with the Funds' securities lending activities ("cash collateral") and
any cash balances that have not been otherwise invested in portfolio securities
("uninvested cash") (cash collateral and uninvested cash, together, "cash
balances") are invested in one or more joint accounts established for the Funds
and other funds advised by Barclays Global Fund Advisors ("BGFA") (collectively,
the "Participants") in accordance with the conditions set forth in the letter
issued by the staff of the Division of Investment Management (the "Staff") of
the Securities and Exchange Commission ("SEC") granting no-action relief in The
Chase Manhattan Bank (pub. avail. July 24, 2001).
1. One or more joint accounts will be established on behalf of the
Participants as separate accounts into which a Participant may deposit daily
all, or a portion of, its cash balances. BGFA will have sole responsibility for
determining whether a Fund will participate in a joint account and will be
responsible for overseeing the administration of the joint accounts, including
the accounting and control procedures and ensuring the fair treatment of the
joint account Participants. The joint accounts will be subject to the
Participants' custody agreements and will not be distinguishable from any other
accounts maintained by the Participants at the Participants' custodian except
that monies from the Participants will be deposited in the joint accounts on a
commingled basis. The joint accounts will not have separate existences and will
not be separate legal entities. The sole function of the joint accounts will be
to provide a convenient way of aggregating individual transactions, which would
otherwise require separate daily management of the cash balances.
2. Assets in the joint accounts may be invested in one or more of the
following types of investments: (i) repurchase agreements that are
"collateralized fully" as defined in Rule 2a-7 under the Investment Company Act
of 1940, as amended (the "1940 Act"); (ii) interest-bearing or discounted
commercial paper, including U.S. dollar-denominated commercial paper of foreign
issuers; (iii) shares of money market funds managed by BGFA, in accordance with
the SEC exemptive order granted to BGFA (hereafter, "MMF Order");/1/ and (iv)
any other short-term money market instruments that constitute "Eligible
Securities" (as defined in Rule 2a-7) (collectively, "Short-Term
Investments")/2/ by BGFA. Pursuant to the MMF Order, each Fund's uninvested cash
in a joint account may be invested in shares of money market funds managed by
BGFA up to a limit of 25% of such Fund's total assets. Uninvested cash in a
joint account may also be invested in Short-Term Investments that are repurchase
agreements with a remaining maturity of 60 days or less and other Short-Term
Investments with a remaining maturity of 90 days or less, each as calculated in
accordance with Rule 2a-7. Also pursuant to the MMF Order, each Fund's cash
collateral in a joint account may, without limit, be invested in shares of money
market funds managed by BGFA. Cash collateral in a joint account may also be
invested in Short-Term Investments that have a remaining maturity of
----------
/1/ See Master Investment Portfolio, et al., 1940 Act Release Nos. 25135 (Aug.
23, 2001) (notice) and 25158 (Sept. 18, 2001) (order).
/2/ Any repurchase agreements that are entered into through a joint account
shall comply with the terms of 1940 Act Release No. 13005 (Feb. 2, 1983), and
with current and future positions of the SEC or Staff that relate to repurchase
agreements. In the event that the SEC or Staff sets forth positions with respect
to other Short-Term Investments made through the joint accounts, the Short-Term
Investments shall also comply with those positions. Joint Accounts will enter
into overnight "hold-in-custody" repurchase agreements, in which the
counterparty or one of its affiliated persons may have possession of, or control
over, the collateral subject to the agreement, only when cash is received late
in the business day and otherwise would be unavailable for investment.
397 days or less as calculated in accordance with Rule 2a-7. All of the
purchases and sales of Short-Term Investments on behalf of a Fund shall comply
with BGFA's Mutual Fund Securities Lending Joint Account Guidelines (the
"Investment Guidelines")./1/ No Participant will be permitted to invest in a
joint account unless the Short-Term Investments in the joint account will comply
with the investment objective, policies and restrictions of that Participant.
3. All of the assets that are held by the joint accounts will be valued on
an amortized cost basis to the extent permitted by applicable SEC or Staff
releases, rules, letters or orders.
4. Each Fund that values its net assets in reliance on Rule 2a-7 will use
the average maturity of the instruments in the joint account (determined on a
dollar-weighted basis) for the purpose of computing the Fund's average portfolio
maturity with respect to its portion of the assets that are held in the joint
account on that day.
5. To prevent any Participant from using any part of a balance of a joint
account that is credited to another Participant, no Participant will be allowed
to create a negative balance in any joint account for any reason, although each
Participant will be permitted to draw down its entire balance at any time,
provided that BGFA determines that such draw-down would have no significant
adverse impact on any other Participant participating in that joint account.
Each Participant's decision to invest through the joint accounts would be solely
at its option, and no Participant will be obligated to invest in a joint account
or maintain a minimum balance in a joint account. In addition, each Participant
will retain the sole rights of ownership to any of its assets invested in a
joint account, including interest payable on such assets that are invested in
the joint accounts.
6. BGFA will administer the investment of assets in, and the operation of,
the joint accounts as part of its general duties under its advisory or
sub-advisory agreements with the Participants and BGFA will not collect any
additional or separate fees for administering any joint account.
7. The administration of the joint accounts will be within the fidelity
bond coverage required by Section 17(g) of the 1940 Act and Rule 17g-1
thereunder.
8. Each Participant will participate in a joint account on the same basis
as any other Participant in the joint account in conformity with the
Participant's fundamental investment objectives, policies and restrictions.
9. Any Short-Term Investments that are made through a joint account will
satisfy the investment criteria of all of the Participants participating in that
Short-Term Investment.
10. Each Participant's investment in a joint account will be documented
daily on its books and on the books of its custodian. BGFA, each Participant and
each Participant's custodian will maintain records documenting, for any given
day, each Participant's aggregate investment in a joint account and the
Participant's pro rata share of each Short-Term Investment made through such
joint account. BGFA may choose to fulfill its responsibilities under this
section through agreements with the participants' custodians or other service
providers. The records maintained for each Participant will be maintained in
conformity with Section 31 of the 1940 Act and the rules and regulations
promulgated thereunder. Any Participant that is not an investment company
registered under the 1940 Act, and any investment adviser not registered under
the Investment Advisers Act of 1940 that advises a Participant, will make
available to the SEC, upon request, such books and records with respect to such
Participant's participation in the joint accounts.
11. A Participant participating in a joint account will not necessarily
have its cash balances invested in every Short-Term Investment that is made
though the joint account. To the extent that a Participant's cash balances are
applied to a particular Short-Term Investment, however, the Participant will
participate in and own its proportional share of such Short-Term Investment, and
any income earned or accrued thereon, based upon the percentage of the
Short-Term Investment that was purchased with monies that were contributed by
the Participant.
----------
/1/ The Investment Guidelines shall identify the particular types of Short-Term
Investments in which cash balances can be invested and the maximum and minimum
amount of cash or percentages of a Fund's cash balances that can be invested in
each authorized Short-Term Investment.
12. Short-Term Investments that are held in a joint account generally will
not be sold prior to maturity unless: (i) BGFA believes that the investment no
longer presents minimal credit risks; (ii) BGFA believes that the investment no
longer satisfies the investment criteria of all of the Participants
participating in the investment or is otherwise no longer appropriate for all
the Participants; or (iii) in the case of a repurchase agreement, the
counterparty defaults. BGFA may sell any Short-Term Investment (or fractional
portion thereof) on behalf of some or all of the Participants prior to the
maturity of the investment, provided that the cost of such transaction will be
allocated solely to the selling Participants and the transaction will not
adversely affect the other Participants participating in that joint account. In
no case would a sale prior to maturity by less than all of the Participants be
permitted if the sale would reduce the principal amount or yield that is
received by the other Participants in the joint account, or otherwise adversely
affect the other Participants. Each Participant in a joint account will be
deemed to have consented to the sale and partition of the investments in the
joint account.
13. Short-Term Investments that are held through a joint account with
remaining maturities of more than seven days, as calculated pursuant to Rule
2a-7, will be considered to be illiquid and subject to the restriction that a
Fund may not invest more than 15% or, in the case of a money market Fund, more
than 10% (or, in either case, such other percentage as set forth by the SEC from
time to time) of its net assets in illiquid securities, and any similar
restrictions set forth in the Fund's investment restrictions and policies, if
BGFA cannot sell the instrument, or the Fund's fractional interest in such
instrument, pursuant to the preceding condition.
14. If the joint accounts are established by a custodian that is not a
Participant's regular custodian and the Participant wishes to participate in the
joint accounts, the Participant must appoint such custodian as a sub-custodian
for the limited purposes of: (i) receiving and disbursing cash balances and cash
collateral; (ii) holding any Short-Term Investments; and (iii) holding any
collateral received from a transaction that is effected through a joint account.
A Participant that so appoints such a subcustodian will take all necessary
action to authorize the sub-custodian as its legal custodian, including any
actions that are required under the 1940 Act.
15. Each Trust's Board, including a majority of the Independent Directors
and Trustees, will make and approve such changes as it deems necessary to ensure
that these Procedures are followed. In addition, each Board will determine, no
less frequently than annually, that the joint accounts have been operated in
accordance with these Procedures, and will permit a Fund to continue to
participate in the joint accounts only if the Board, including a majority of the
Independent Directors and Trustees, determines that there is a reasonable
likelihood that the Fund and its shareholders will benefit from the Fund's
continued participation.
Mutual Fund Securities Lending Joint Account Guidelines
(MFSLJA # 596741)
General
The Mutual Fund Securities Lending Joint Account acts as a securities lending
cash collateral vehicle for BGFA advised '40 Act funds./1/ The Joint Account
seeks to provide participant funds with a high level of income while preserving
capital and liquidity, by investing in high quality short-term securities.
Volatility/Maturity
.. Cash collateral in the Joint Account must be invested in short-term
investments that have a remaining maturity of 397 days or less, as defined by
rule 2a-7./2/
.. Maintain dollar-weighted average maturity of not more than 90
days./3/
Credit Quality/Diversification
.. Securities approved for investment must be "Eligible Securities", as
defined under Rule 2a-7.
.. Not more than 5% of assets may be invested in a single issuer (at time of
acquisition), except for government securities./4/
.. Not more than 25% of assets may be invested in any given industry except for
U.S. government obligations and banks (defined as U.S. banks, foreign
branches of U.S. banks and U.S. branches of foreign banks)./5/
.. Not more than 5% of assets may be invested in repurchase agreements with a
single counter-party./6/
.. FX/Derivatives: No FX or derivatives transactions are allowed./7/
.. Not more than 10% of assets may be invested in external money market mutual
funds, except for BGFA managed money market mutual funds. External money
market funds must be approved by the Global Credit Group, and are held to a
5% issuer diversification limit. Money market funds will be considered as
overnight investments for the purpose of weighted average maturity
calculations, and minimum liquidity requirements.
.. Up to 100% of the Joint Account's assets may be invested in one or a
combination of BGFA managed money market funds. BGFA managed money market
mutual funds will be considered an overnight investment for the purpose of
weighted average maturity calculations, and minimum liquidity requirements.
Liquidity
.. The Joint Account must hold 10% of its assets in investments that mature
the following business day./8/
.. The Joint Account will not invest in illiquid securities. As defined in the
Joint Account Procedures, illiquid securities are short-term investments with
a remaining maturity of more than seven days that cannot be sold by BGFA.
----------
/1/ Although the MIP, BGI Funds, iShares Trust and iShares Inc. Joint Account
Procedures ("Joint Account Procedures") approve the use of a joint account for a
participant funds' uninvested cash and cash collateral, the Mutual Fund
Securities Lending Joint Account ("Joint Account") will be used only for cash
collateral reinvestment.
/2/ This is a requirement of the Joint Account Procedures.
/3/ This is not a requirement of the Joint Account Procedures but added as a
measure of cash investment management prudence.
/4/ See footnote number 3.
/5/ See footnote number 3.
/6/ See footnote number 3.
/7/ See footnote number 3.
/8/ See footnote number 3.
Eligible Investments:
Assets in the Joint Accounts may be invested in one or more of the following
types of investments: (i) repurchase agreements that are "collateralized fully"
as defined in Rule 2a-7 under the Investment Company Act of 1940, as amended
(the "1940 Act"); (ii) interest-bearing or discounted commercial paper,
including U.S. dollar-denominated commercial paper of foreign issuers; (iii)
shares of money market funds managed by BGFA, in accordance with the SEC
exemptive order granted to BGFA (hereafter, "MMF Order")/1/; and (iv) any other
short-term money market instruments that constitute "Eligible Securities" (as
defined in Rule 2a-7) (collectively, "Short-Term Investments")/2/ by BGFA.
----------
/1/ See Master Investment Portfolio, et al., 1940 Act Release Nos. 25135 (Aug.
23, 2001) (notice) and 25158 (Sept. 18, 2001) (order)
/2/ Any repurchase agreements that are entered into through a joint account
shall comply with the terms of 1940 Act Release No. 13005 (Feb. 2, 1983), and
with current and future positions of the SEC or Staff that relate to repurchase
agreements. In the event that the SEC or Staff sets forth positions with respect
to other Short-Term Investments made through the joint accounts, the Short-Term
Investments shall also comply with those positions. Joint Accounts will enter
into overnight "hold-in-custody" repurchase agreements, in which the
counterparty or one of its affiliated persons may have possession of, or control
over, the collateral subject to the agreement, only when cash is received late
in the business day and otherwise would be unavailable for investment.
Schedule II
Approved Borrowers
------------------
[An Asterisk Denotes an Approved "Affiliated Borrower"]
Abbey National Securities Inc.
ABN AMRO Inc.
AIG Financial Securities Corp.
Banc Of America Securities LLC
Barclays Capital Inc.*
Bear Xxxxxxx & Co., Inc.
Bear Xxxxxxx Securities Corp.
BNP Paribas Securities Corp
CIBC World Markets Corp
Citadel Trading Group LLC
Credit Suisse First Boston Corp
Deutsche Banc Alex. Xxxxx Inc
Dresdner Kleinwort Xxxxxxxxxxx Securities LLC
Fortis Investment Services LLC
Xxxxxxx Xxxxx & Co.
Greenwich Capital Markets Inc.
HSBC Securities (Usa) Inc
ING Barings Inc.
XX Xxxxxx Securities Inc
JPMorgan Chase Bank
Xxxxxx Brothers Inc.
Maple Securities U.S.A. Inc.
Xxxxxxx Xxxxx Government Securities
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Xxxxxx Xxxxxxx & Co., Inc.
MS Securities Services, Inc.
Xxxxxxxxx & Xxxxxx L.L.C.
Nomura Securities International Inc.
Paloma Securities L.L.C.
Paloma Securities LLC (Sub Guarantor)
Xxxxxxx Xxxxx Barney Inc.
XX Xxxxx Securities Corp
UBS Painewebber Inc
UBS Warburg LLC
Wachovia Bank, N.A.
Wachovia Securities Inc.
--------------------------------------
Telephone 000 000 0000
Facsimile 000 000 0000
Exhibit A
PERFORMANCE THROUGH INNOVATION
(Form of Securities Lending Agreements ------------------------------
for US Securities) BARCLAYS GLOBAL INVESTORS
DATE
BORROWER
ADDRESS
Ladies and Gentlemen:
This letter agreement (the "Agreement") sets forth the agreement between
Barclays Global Investors, N.A. ("BGI"), as agent or trustee for various agency
or trust accounts specified in Appendix A hereto (each such account, a "Lender")
and the above addressee ("Borrower") which shall hereafter govern all securities
lending transactions between the parties hereto involving securities traded on
exchanges in the United States. This Agreement shall be deemed a separate
agreement between Borrower and each Lender. Each Lender is acting by and through
BGI, not in its individual capacity but acting solely in its capacity as agent
or trustee of such Lender. Accordingly, Borrower and each Lender hereby agree as
follows:
1. Loan of Securities. Lender, in its sole discretion, may from time to
time lend securities to Borrower at Borrower's request. If Lender decides to
make such a loan, it shall deliver to Borrower certificates representing the
securities loaned in form for good delivery or shall direct that the securities
loaned be credited to Borrower's account at The Depository Trust Company or, in
the case of U.S. Treasury securities, in the Federal Reserve book-entry system.
(Each security loaned to Borrower is hereinafter called a "Security" and
collectively the "Securities"). Each such loan shall be evidenced by appropriate
receipts or notifications customary in such transactions.
2. Collateral. On receipt of the Securities, Borrower shall deliver to the
Lender no later than the close of the same business day (as defined in paragraph
20 hereof) collateral in an amount equal to at least 102% of the market value of
the Securities and which consists of cash, and/or securities issued or
guaranteed by the United States government or its agencies or instrumentalities.
(The amount of any such cash or other collateral plus the aggregate of all
additional amounts deposited by Borrower with Lender pursuant to paragraph 4
hereof and invested by the Lender pursuant to paragraph 7 hereof and less the
aggregate of all amounts released by Lender pursuant to paragraph 4 hereof are
called the "Collateral"). The market value of the Securities (including
Government Securities and Debt Securities, as defined below) and of any
securities accepted by the Lender as Collateral shall be determined on the basis
of the last reported sales prices on the principal national securities exchange
on which the Securities or such securities accepted as Collateral are traded or,
if not so traded, as reasonably determined by Lender. However, if the Securities
are securities which are issued or guaranteed by the United States government or
its agencies ("Government Securities") or are debt obligations of corporations,
including bonds, debentures, notes, certificates or other evidence of
indebtedness ("Debt Securities"), Borrower shall deliver Collateral in an amount
equal to at least 102% of the market value of the Government Securities or Debt
Securities plus the interest accrued on such Securities. The Collateral shall
secure all obligations of Borrower to Lender hereunder, and Lender, in addition
to all its other rights with respect thereto under this Agreement shall have a
continuing security interest in and lien upon, or title to, the Collateral and
shall have a right of set-off with respect to all obligations of Borrower to
Lender whether arising under this Agreement or otherwise. Borrower represents
and warrants that it has the unqualified right to sell, transfer, assign or
pledge the collateral which will become Collateral and that such collateral,
upon delivery to Lender will be free of any lien, claim or encumbrance.
Barclays Global Investors
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Post: X.X. Xxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
3. Letters of Credit. Borrower may request that Lender accept in lieu of
Collateral an irrevocable standby letter of credit ("Letter of Credit") issued
by a bank acceptable to Lender, and in a form and substance satisfactory to
Lender. If a Letter of Credit is accepted by Lender, Borrower agrees that at any
time Lender may by notice to Borrower require that Borrower, on the business day
following the date of delivery of such notice, substitute Collateral consisting
of cash for the Letter of Credit. Prior to the expiration of any Letter of
Credit supporting Borrower's obligations hereunder, Borrower shall, no later
than 10:30 a.m. New York time on the tenth business day prior to the date such
Letter of Credit expires, obtain an extension of the expiration of such Letter
of Credit or replace such Letter of Credit by providing Lender with a substitute
Letter of Credit in an amount at least equal to the amount of the Letter of
Credit for which it is substituted.
4. Marking to Market.
(a) If, at any time as of the close of business on any business day, the
aggregate amount of the Collateral or the amount of the Letter of Credit does
not equal or exceed 102% of the aggregate market value of the Securities
(determined in the manner provided in paragraph 2 hereof which shall include in
the case of Government Securities or Debt Securities accrued interest), Borrower
shall increase the amount of the Collateral or the Letter of Credit by
delivering to Lender, no later than the close of business on the next business
day, cash collateral or other collateral acceptable to Lender, or an amendment
to the Letter of Credit if acceptable to Lender, in an amount sufficient to
cause the aggregate amount of Collateral or the amount of the Letter of Credit,
as the case may be, to be an amount equal to at least 102% of the market value
of the Securities plus, in the case of Government Securities or Debt Securities,
accrued interest.
(b) If, at the close of business on any business day, the amount of
Collateral shall exceed 102% of the market value of the Securities plus, in the
case of Government Securities or Debt Securities, accrued interest, Lender
shall, upon demand by Borrower, release to Borrower, no later than the close of
business on the business day following such demand, the amount of Collateral
which exceeds 102% of the then market value of the Securities plus, in the case
of Government Securities or Debt Securities, accrued interest.
5. Termination of Loan.
(a) Borrower may terminate a loan of any Securities by (i) giving prior
notice to Lender no later than 10:30 a.m. New York time on the business day on
which Borrower intends to return the Securities to Lender and (ii) delivering
such Securities to Lender.
(b) In addition to its right to terminate any or all loans pursuant to
paragraph 9 hereof, Lender may terminate a loan of any Securities by notice to
the Borrower given at anytime. Within three business days after notice of
termination from Lender to Borrower (or within one business day if the
Securities are Government Securities), the Borrower shall deliver the Securities
to Lender, and Lender shall return to Borrower the Collateral or the Letter of
Credit less amounts due and owing to Lender pursuant to this Agreement provided
that Borrower is not in default under this Agreement. Such return of Securities
shall constitute a settlement payment.
6. Dividends, Distributions, etc. Lender shall be entitled to receive and
retain all distributions made on or with respect to the Securities to the full
extent it would be so entitled if the Securities loaned had not been lent to
Borrower, including, without limitation, all cash and stock dividends, interest
distributions, and rights to purchase or receive additional securities or other
property. If any such distribution shall be made to, or received by, Borrower,
it shall receive such distribution in trust for Lender and shall promptly remit
the same, with all necessary endorsements, to Lender. Lender hereby waives the
right to vote the Securities during the term of the loan.
7. Use of Collateral. BGI may transfer all or any portion of the
Collateral, and hold and apply any Letter of Credit, among the various accounts
for which it is acting as agent or trustee hereunder as necessary to assure that
the obligations of Borrower to each such account are adequately secured, and may
use or invest the Collateral as it may see fit. The income earned on the
Collateral shall be shared by Lender and Borrower as they may from time to time
agree. In the event that non-cash collateral is used as a part of the Collateral
or a Letter of Credit is delivered to Lender, Lender shall be entitled to a fee
in an amount as shall be agreed upon from time to time by Lender and Borrower.
The sole obligation of Lender with respect to the Collateral shall be to return
as much of the Collateral to Borrower as Borrower may be entitled pursuant to
paragraph 5 hereof upon the termination of the loan which the Collateral
secures.
8. Borrower's Representations as to Financial Condition.
(a) Prior to the making of the first loan hereunder, Borrower shall
furnish Lender with a copy of the most recent available audited statement of
Borrower's financial condition and a copy of the most recent available unaudited
statement of Borrower's financial condition if more recent than such audited
statement. The request by Borrower for each loan hereafter made shall constitute
a representation by Borrower that there has been no material adverse change in
its financial condition that has not been disclosed to Lender since the date of
the most recent financial statement furnished to Lender.
(b) Borrower represents and warrants to Lender that it is either (i) a
broker-dealer registered under the Securities Exchange Act of 1934, as amended
(the "Act"), (ii) exempt from registration under Section 15(a)(1) of the Act as
a dealer in Government securities (as defined in Section 3(a)(12) of the Act or
(iii) a bank subject to U.S. federal or state supervision.
9. Event of Default by Borrower. All outstanding loans of Securities
between Lender and Borrower shall be terminated immediately upon the happening
of any one or more of the following events and without any notice by Lender:
(a) If Borrower fails to deliver Securities to Lender on the date for
return of Securities as provided in paragraph 5 hereof.
(b) If Borrower shall fail to deliver (i) the initial Collateral or Letter
of Credit required by paragraph 2 or 3 hereof, (ii) any additional Collateral or
amendment to a Letter of Credit as required by paragraph 4 hereof, or (iii) a
new or extended Letter of Credit, in form and substance satisfactory to Lender,
or other substitute Collateral acceptable to Lender, not later than 10:30 a.m.
New York time on the tenth business day before the expiration date of any Letter
of Credit.
(c) If Borrower shall fail to pay the amount of any interest,
dividend or other distribution as required by paragraph 6 hereof.
(d) If Borrower shall fail to substitute Collateral consisting of cash for
a Letter of Credit as required by paragraph 3 hereof.
(e) If Borrower shall fail to conform or comply with any other provision
hereof and such failure shall continue for more than five days after notice from
Lender.
(f) If Borrower, or any affiliate of Borrower, or any bank which has
issued a Letter of Credit as Collateral under this Agreement ("Issuing Bank")
shall make a general assignment for the benefit of creditors, or shall admit in
writing to its inability to pay its debts as they become due, or shall file a
petition in bankruptcy or shall be adjudicated as bankrupt or insolvent, or
shall file a petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation, or shall seek consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of it or any material part of
its property.
(g) If Borrower, or any affiliate of Borrower, shall have been suspended
or expelled from membership or participation in any national securities exchange
or association or other self-regulatory organization or if it is suspended from
dealing in securities by any governmental agency or if any petition is filed
against Borrower, or any affiliate of Borrower, or an Issuing Bank in any court
or before any agency alleging the bankruptcy or insolvency of Borrower, or any
affiliate of Borrower, or an Issuing Bank, or seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, or the
appointment of a receiver or trustee of all or a portion of the Borrower's
property, the property of any affiliate of Borrower or the property of an
Issuing Bank.
(h) If a final judgment for the payment of money in excess of $1 million
shall be rendered against Borrower, and, within 60 days after the entry thereof,
such judgment shall not have been discharged or execution thereof stayed pending
appeal, or if, within 60 days after the expiration of any such stay, such
judgment shall not have been discharged.
(i) If an event of default with respect to Borrower shall have occurred
under any securities lending arrangement between Borrower and BGI, as trustee or
agent for any of its trust or agency accounts.
10. Remedies of Lender.
(a) Upon any default as set forth in paragraph 9 hereof, Lender shall have
such rights as are granted to it under any Letter of Credit and as to Collateral
all of the rights and remedies of a secured party under Article 9 of the
California Uniform Commercial Code and as otherwise provided by law, and, in
addition, may, at its sole option, either:
(i) purchase securities identical to the Securities in a commercially
reasonable manner and apply all or any part of the Collateral or proceeds
of any Letter of Credit to the purchase price thereof, or
(ii) by notice to Borrower, sell any or all Securities to Borrower, at
a price equal to their value as of the close of business on the business
day next preceding the date of delivery of such notice, and apply all or
any part of the Collateral or proceeds of any Letter of Credit against the
amount owing to it in respect of such sale.
In case either remedy specified in (i) or (ii) is exercised, the
obligation of Borrower to return such Securities shall terminate.
(b) If an event of default relates solely to an Issuing Bank under
paragraph 9(f) or 9(g) hereof, Lender in its discretion may elect to permit
Borrower to remedy the default by substituting Collateral consisting of cash for
the Letter of Credit of the Issuing Bank. Such cash must be delivered to Lender
in immediately available funds by the close of business on the business day
Lender notifies Borrower of its election. If such cash Collateral is not
delivered as required by this paragraph, Lender may exercise any of the remedies
provided for by this paragraph 10 as though no election had been made.
11. Event of Default by Lender. The following shall constitute Events of
Default by Lender:
(a) If Lender shall fail to deliver Securities to Borrower in accordance
with paragraph 1 hereof.
(b) If Lender fails to release to Borrower such portion of the Collateral
as Borrower shall have demanded and to which Borrower shall be entitled pursuant
to paragraph 4(b) hereof.
(c) If Lender fails to return the Collateral or any Letter of Credit given
as Collateral under this Agreement to Borrower as provided in paragraph 5(b)
hereof.
(d) If Lender fails to pay the amount of any interest, dividend or other
distribution as required by paragraph 6(b) hereof and such failure shall
continue for more than one business day after notice from Borrower thereof.
(e) If Lender fails to credit Borrower's account with that portion of the
income earned on the Collateral, if any, to which Borrower may be entitled in
accordance with the agreement of the parties as provided by paragraph 7 hereof.
(f) If Lender shall make a general assignment for the benefit of
creditors, or shall admit in writing to its inability to pay its debts as they
become due, or shall file a petition in bankruptcy or shall be adjudicated as
bankrupt or insolvent, or shall file a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, or shall seek
consent to or acquiesce in the appointment of any trustee, receiver or
liquidator of Lender or any material portion of Lender.
(g) If any petition is filed against Lender in any court or before any
agency alleging the bankruptcy or insolvency of Lender or seeking any
reorganization, dissolution or similar relief under any present or future
statute, law or regulation, or the appointment of a receiver or trustee of all
or a portion of Lender's property.
(h) If Lender shall fail to conform or comply with any other provision
hereof and such failure shall continue for more than five days after notice from
Borrower.
12. Remedies of Borrower. Upon any default as set forth in paragraph 11
hereof, and in addition to any other remedies available to Borrower under this
Agreement or applicable law, Borrower may, by notice to Lender, treat the
Securities as having been purchased by Borrower from Lender at a price (the
"Sale Price") equal to the value of such Securities as of the close of business
on the business day next preceding the date of delivery of such notice. Upon
receipt of notice under this paragraph 12, Lender may exercise all rights
granted to Lender under any Letter of Credit given in lieu of Collateral under
this Agreement, and Lender may apply all or any part of the Collateral
(including the proceeds of any such Letter of Credit) to the Sale Price owed to
it. If Borrower elects to purchase the Securities as specified in this
paragraph, Lender's obligation to return the Collateral shall terminate. Nothing
in this paragraph relieves Borrower of its obligation to pay to Lender fees and
other amounts as specified in paragraph 13.
13. Other Amounts Owing. No application of Collateral or of the proceeds of
any Letter of Credit as provided in paragraph 10 or paragraph 12 shall in any
way release Borrower from its obligation to pay to Lender all of the following,
which shall be payable by Borrower, together with interest thereon at the rate
charged on the termination date by Xxxxx Fargo Bank, National Association, at
its principal office in San Francisco, California, as its prime rate for
domestic (United States) commercial loans in effect on such date, from the dates
such amounts are payable until payment in full has been made:
(a) all amounts owing pursuant to paragraph 6;
(b) the excess, if any, of the cost of any securities purchased under
paragraph 10(a)(i) or of the sale price of any Securities sold to Borrower under
paragraph 10(a)(ii) over the amount of Collateral or proceeds of the related
Letter of Credit with respect thereto:
(c) brokerage commissions, attorneys' fees and expenses and all other
costs of collection.
In the event Borrower exercises its remedies under paragraph 12 hereof,
Lender shall return to Borrower the excess, if any, of the value of the
Collateral over the total of the Sale Price and any other fees owed by Borrower
to Lender.
14. POSSIBLE LACK OF PROTECTION UNDER SIPA. WITHOUT WAIVING ANY RIGHTS
GIVEN TO LENDER HEREUNDER, LENDER ACKNOWLEDGES THAT PROVISIONS OF THE SECURITIES
INVESTOR PROTECTION ACT OF 1970 MAY NOT PROTECT LENDER WITH RESPECT TO
SECURITIES LOAN TRANSACTIONS, AND, THEREFORE, THE COLLATERAL DELIVERED TO LENDER
MAY CONSTITUTE THE ONLY SOURCE OF SATISFACTION OF BORROWER'S OBLIGATION IN THE
EVENT BORROWER FAILS TO RETURN THE SECURITIES.
15. Transfer Taxes and Costs. All transfer taxes and necessary costs with
respect to the transfer of the Securities either by Lender to Borrower or by
Borrower to Lender, shall be paid by Borrower. If Lender shall incur any loss by
reason of Borrower's failure to pay all said taxes and costs as may be due,
Lender shall be entitled to receive the same from Borrower and may retain an
amount of the Collateral sufficient to satisfy its claim against Borrower in
respect to said taxes and costs.
16. Notices, Deliveries, etc. All notices, deliveries and payments
pursuant hereto shall be sufficient if in writing and delivered (by courier or
personal delivery), or mailed by registered or certified mail, to the party
entitled to receive such notice, delivery or payment at the following addresses:
If to Lender: Barclays Global Investors, N.A.
as agent or trustee
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Securities Lending Group
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Borrower: Company
Address
City, State, Zip
Attn:
Phone:
Fax:
or to such other address as either party may furnish in writing to the other
party. Notices may also be given by facsimile, provided that such notices shall
be promptly confirmed orally by the sending party. Demands and notices pursuant
to paragraphs 4 and 5 may be given orally, confirmed in writing. Notice given by
courier or personal delivery, or by registered or certified mail, shall be
effective upon receipt, and all notices given orally or by facsimile shall be
effective when made.
17. Purpose of Loan/Status of Borrower. Borrower represents to and warrants
to Lender (1) that the Securities borrowed by it are being used only for lawful
purposes and (2) that it is either (i) a bank subject to federal or state
supervision, (ii) a broker-dealer registered under the Securities Exchange Act
of 1934, as amended (the "Act"), or (iii) exempt from registration under Section
15(a)(1) of the Act as a dealer in Government Securities.
18. Indemnification. Borrower agrees to indemnify and hold harmless Lender
from any and all damages, losses, costs and expenses (including reasonable
attorneys' fees but excluding damages, losses, costs and expenses caused by the
gross negligence of Lender) that it may incur or suffer arising in any way out
of (a) the use by Borrower of Securities loaned to Borrower under this
Agreement, (b) the failure of Borrower to return the Securities or (c) the
enforcement of this Agreement or any Letter of Credit or in the protection,
preservation or enforcement of Lender's rights in connection with any of the
Collateral.
19. Miscellaneous.
(a) This Agreement and the rights of the parties hereunder shall not be
assignable by either party without the prior written consent of the other party.
Subject to the foregoing, this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns. This Agreement shall not be changed except by an instrument in writing
signed by each of the parties hereto.
(b) For purposes of this Agreement a "business day" shall be defined as
the regular business hours of any day on which the U.S. Federal Reserve Bank of
New York, the Depository Trust Company, Borrower and Lender are open for
business.
20. Governing Law.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
(b) Each party irrevocably submits to the non-exclusive jurisdiction of
any United States Federal or New York State court sitting in New York City with
respect to any suit, action or proceeding ("Proceeding") related to this
Agreement and waives any objection that it may have at any time to the laying of
venue of any Proceeding brought in any such court, waives any claim that any
such Proceeding ahs been brought in any inconvenient forum and further waives
the right to object, with respect to any such Proceeding, that such court does
not have jurisdiction over such party.
(c) Each party hereto irrevocably waives any right that it may have to
trial by jury in any Proceeding.
[21. Service of Process. The Borrower hereby irrevocably designates,
appoints, authorizes and empowers as its agent for service of process, [Name,
Address of Process Agent] [CT Corporation System, at its offices currently
located at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000] (the "Process Agent")], to
accept and acknowledge for and on behalf of the Borrower service of any and all
process, notices or other documents that may be served in any Proceeding. Such
designation and appointment shall be irrevocable until all of Borrower's
obligations hereunder have been satisfied in full in accordance with the
provisions thereof. The Borrower covenants
and agrees that it shall take any and all reasonable action, including the
execution and filing of any and all documents, that may be necessary to continue
the foregoing designations and appointments in full force and effect and to
cause the Process Agent to continue to act in such capacity. The Borrower
consents to process being served in any suit, action or Proceeding by serving a
copy thereof upon the Process Agent in the manner provided for notices in
paragraph 16. Nothing in this paragraph shall affect the right of any party to
serve process in any manner permitted by law.]
[22. Termination of Existing Securities Lending Agreement. As of the date
of this Agreement:
(a) The securities lending agreement between the parties dated [
] and any amendment thereto (together, the "Existing Securities
Lending Agreement") shall terminate save for those provisions therein which are
expressed or intended to survive the termination thereof.
(b) All securities loans then outstanding under the Existing Securities
Lending Agreement shall be deemed to be securities loans under this Agreement
and all Collateral and Letters of Credit accepted by Lender under the Existing
Securities Lending Agreement shall be deemed to be Collateral and Letters of
Credit under this Agreement.
(c) This Agreement shall amend, restate and supercede in its entirety and
replace the Existing Securities Lending Agreement; provided, however, that the
execution and delivery of this Agreement shall not (a) operate as a waiver of
any right, power or remedy of the Lender or Borrower under the Existing
Securities Lending Agreement, except to the extent expressly waived in this
Agreement, or (b) extinguish or impair any obligations of the Lender or Borrower
under the Existing Securities Lending Agreement except to the extent any such
obligation is actually satisfied by Lender or Borrower.]
This Agreement by be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
If the foregoing correctly expresses our agreement, please confirm the same
by signing and returning the enclosed copy whereupon this letter shall become a
binding agreement as of the date appearing above.
BARCLAYS GLOBAL INVESTORS, N.A. as
trustee or agent for the entities
listed on Appendix A hereto
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
Accepted and agreed to on this ________ day of _______________, 200_________.
BORROWER
By:
------------------------------
Name:
Title:
--------------------------------------
Telephone 000 000 0000
Facsimile 000 000 0000
Exhibit A
PERFORMANCE THROUGH INNOVATION
(Form of Securities Lending Agreements ------------------------------
for US Securities) BARCLAYS GLOBAL INVESTORS
Date
BORROWER
ADDRESS
Ladies and Gentlemen:
This letter agreement (the "Agreement") sets forth the agreement
between Barclays Global Investors, N.A. ("BGI"), as agent or trustee for various
agency or trust accounts specified in Appendix A hereto (each such account, a
"Lender"), and the above addressee ("Borrower") which shall hereafter govern all
securities lending transactions between the parties hereto involving securities
traded on exchanges in the countries specified on Appendix A (each a "Specified
Country"). This Agreement shall be deemed to be a separate agreement between the
Borrower and each Lender. Each Lender is acting by and through BGI not in its
individual capacity but solely in its capacity as agent or trustee of each
Lender. Accordingly, Borrower and each Lender hereby agree as follows:
1. Loan of Securities. Lender, in its sole discretion, may from time
to time lend securities to Borrower at Borrower's request. If Lender
decides to make such a loan, it shall require that Borrower deliver to
it Collateral (in such manner and amount as defined in paragraph 2)
for such loan. After Lender has received such Collateral, Lender shall
transfer to Borrower the Securities loaned. Such transfer shall be
effected by Lender in the Specified Country relevant to the loaned
Securities at the time agreed to by Lender and Borrower after the
receipt of the Collateral by Lender. All transfers of Securities or
Collateral hereunder shall be by (i) physical delivery of certificates
representing the Securities loaned in good delivery form, (ii)
transfer on the books of a clearing organization, or (iii) such other
means as Borrower and Lender may agree. For the purposes of this
Agreement, "clearing organization" shall mean The Depository Trust
Company, or, if agreed to by Borrower and Lender, such other clearing
agency at which Borrower (or Borrower's agent) or Lender (or Lender's
agent) maintain accounts, or a book-entry system maintained by a
Federal Reserve Bank. (Each security loaned to Borrower is hereinafter
called a "Security" and collectively the "Securities"). Each such loan
shall be evidenced by appropriate receipts or notifications customary
in such transactions.
2. Collateral. Collateral for a loan made by Lender to Borrower shall
consist of cas, or if acceptable to Lender, cash and/or securities
issued or guaranteed by the United States government or its agencies
or instrumentalities in an amount equal to at least 105% of the market
value of the Securities. (The amount of any such cash or other
collateral plus the aggregate of all additional amounts deposited by
Borrower with Lender pursuant to paragraph 4 hereof plus amounts
received on investments made by Lender pursuant to paragraph 7 hereof
and less the aggregate of all amounts released by Lender pursuant to
paragraph 4 hereof is called the "Collateral"). The market value of
the Securities (including Debt Securities, as defined below) and of
any securities accepted by Lender as Collateral shall be determined on
the basis of the last reported sales prices on the principal
securities exchange on which the Securities or such securities
accepted as Collateral are traded or, if not so traded, as reasonably
determined by Lender. However, if the Securities are obligations of
the Specified Country government or its agencies or are debt
obligations of the Specified Country corporations, including bonds,
debentures, notes, certificates or other evidence of indebtedness
("Debt Securities"), Borrower shall deliver Collateral in an amount
equal to 105% of the market value of the Debt Securities plus the
Barclays Global Investors
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Post: X.X. Xxx 0000
Xxx Xxxxxxxxx, XX 00000-00000.
interest accrued on such Debt Securities. The Collateral shall secure
all obligations of Borrower to Lender hereunder, and Lender, in
addition to all its other rights with respect thereto under this
Agreement shall have a continuing security interest in and lien upon,
or title to, the Collateral and shall have right of set-off with
respect to all Collateral as to all obligations of Borrower to Lender
whether arising under this Agreement or otherwise. Borrower represents
and warrants that it has the unqualified right to sell, transfer,
assign or pledge the collateral which will become Collateral and that
such collateral, upon delivery to Lender, will be free of any lien,
claim or encumbrance.
3. Letters of Credit. Borrower may request that Lender accept in lieu
of Collateral an irrevocable standby letter of credit ("Letter of
Credit") issued by a bank acceptable to Lender, and in form and
substance satisfactory to Lender. If a Letter of Credit is accepted by
Lender, Borrower agrees that at any time Lender may by notice to
Borrower require that Borrower, on the U.S. Business Day following the
date of delivery of such notice, substitute Collateral consisting of
cash for the Letter of Credit. Prior to the expiration of any Letter
of Credit supporting Borrower's obligations hereunder, Borrower shall,
no later than 10:30 a.m. New York time on the tenth U.S. Business Day
prior to the date such Letter of Credit expires, obtain an extension
of the expiration of such Letter of Credit or replace such Letter of
Credit by providing Lender with a substitute Letter of Credit in an
amount at least equal to the amount of the Letter of Credit for which
it is substituted.
4. Marking to Market.
(a) If, at any time as of the close of business on any Specified
Country Business Day (as defined in paragraph 20 hereof), the
aggregate amount of the Collateral or the amount of a Letter of Credit
does not equal or exceed 105% of the aggregate market value of the
Securities loaned relevant to such Specified Country (determined in
the manner provided in paragraph 2 hereof), plus, in the case of Debt
Securities, accrued interest, Borrower shall, upon demand by Lender,
increase the amount of the Collateral or the Letter of Credit by
delivering to Lender cash collateral or other collateral acceptable to
Lender, or an amendment to the Letter of Credit if acceptable to
Lender, in an amount sufficient to cause the aggregate amount of
Collateral or the amount of the Letter of Credit, as the case may be,
to equal at least 105% of the market value of the Securities plus, in
the case of Debt Securities, accrued interest. Borrower shall deliver
such additional Collateral, or such amendment by 1:00 p.m. New York
time on the U.S. Business Day next following the Specified Country
Business Day on which the market value of the Collateral or the amount
of a Letter of Credit does not equal or exceed 105% of the market
value of the Securities plus, in the case of Debt Securities, accrued
interest.
(b) If, at the close of business on any Specified Country Business
Day, the amount of Collateral shall exceed 105% of the market value of
the Securities loaned relevant to such Specified Country plus, in the
case of Debt Securities, accrued interest, Lender shall, upon demand
by Borrower, release to Borrower, as soon as practicable after the
close of business on the Specified Country Business Day following
receipt of such demand, the amount of Collateral which exceeds 105% of
the then market value of the Securities plus, in the case of Debt
Securities, accrued interest.
5. Termination of Loan.
(a) Borrower may terminate a loan of any Securities by (i) giving
prior notice of such termination to Lender no later than 2:00 p.m. New
York time on the U.S. Business Day next preceding the relevant
Specified Country Business Day on which Borrower intends to return the
Securities to Lender and (ii) delivering such Securities to Lender.
(b) In addition to its right to terminate any or all loans pursuant to
paragraph 9 hereof, Lender may terminate a loan of any Securities by
giving notice to Borrower on any U.S. Business Day. Any termination
date established by any such notice shall be a date no earlier than
the standard settlement date for the Securities in the relevant
Specified Country, but not later than five Specified Country Business
Days after notice of termination from Lender to Borrower ("Termination
Date"). On the Termination Date or at the time specified in Borrower's
notice to Lender, pursuant to paragraph 5(a) hereof, Borrower shall
deliver the Securities to Lender.
(c) As soon as practicable after Lender verifies the redelivery of
such Securities to Lender, Lender (following termination of a loan by
either Borrower or Lender under this paragraph 5) shall return to
Borrower the Collateral or the Letter of Credit less any amounts due
and owing to Lender pursuant to this Agreement, provided that Borrower
is not in default under this Agreement. Such return of Securities
shall constitute a settlement payment.
6. Dividends, Distributions, etc.
(a) Lender shall be entitled to receive and retain all
distributions made on or with respect to the Securities to the
full extent it would be so entitled if the Securities loaned had
not been lent to Borrower, including, without limitation, all
cash ("Cash Distributions") and stock dividends, interest
distributions, and rights to purchase or receive additional
securities or other property ("Non-cash Distributions"). Borrower
shall pay to Lender within one U.S. Business Day of the payable
date of a Cash Distribution the amount of such Cash Distribution,
whether or not Borrower shall have received such payment from the
issuer of the Security. When a Non-cash Distribution is declared
for the benefit of holders of a Security as of a specified date,
pending the payable date Lender shall treat the declared Non-cash
Distribution as Securities and Borrower shall deliver Collateral
with respect to the declared Non-cash Distribution to Lender in
accordance with paragraphs 2 and 4 hereof. If Lender shall agree,
Borrower may continue after payable date to treat a Non-cash
Distribution as Securities loaned to Borrower pursuant to
paragraph 1. Any payment of cash from Borrower to Lender under
this paragraph 6 shall be made as Lender shall instruct in the
currency specified by Lender. Lender hereby waives the right to
vote the Securities during the term of the Loan. For purpose of
this paragraph 6, the term "payable date" shall have the meaning
that is customary with respect to securities traded on exchanges
in the Specified Country.
(b) In the event that Borrower takes instructions from Lender
relating to a mandatory or optional corporate action, Borrower must adhere to
those instructions and cannot return the borrowed security during the period
imposed by Lender. In the event that a return is made without the approval of
Lender, Borrower will be liable for any losses, expenses or other costs related
to the corporate action.
7. Use of Collateral. BGI may transfer all or any portion of the
Collateral, and hold and apply any Letter of Credit, among the
various accounts for which it is acting as agent or trustee
hereunder as necessary to assure that the obligations of Borrower
to each such account are adequately secured, and may use or
invest the Collateral as it may see fit. The income earned on the
Collateral shall be shared by Lender and Borrower as they may
from time to time agree. In the event that non-cash Collateral is
used as a part of the Collateral or a Letter of Credit is
delivered to Lender, Lender shall be entitled to a fee in an
amount as shall be agreed upon from time to time by Lender and
Borrower. The sole obligation of Lender with respect to the
Collateral shall be to return as much of the Collateral to
Borrower as Borrower may be entitled pursuant to paragraph 5
hereof upon the termination of the loan which the Collateral
secures.
8. Borrower's Representations as to Financial Condition. Prior to
the making of the first loan hereunder, Borrower shall furnish
Lender with a copy of the most recent available audited statement
of Borrower's financial condition and a copy of the most recent
available unaudited statement of Borrower's financial condition
if more recent than such audited statement. The request by
Borrower for each loan hereafter made shall constitute a
representation by Borrower that there has been no material
adverse change in its financial condition that has not been
disclosed to Lender since the date of the most recent financial
statement furnished to Lender.
9. Event of Default by Borrower. All outstanding loans of Securities
between Lender and Borrower shall be terminated immediately upon
the happening of any one or more of the following events and
without any notice by Lender:
(a) If Borrower fails to deliver Securities to Lender on the
date for return of Securities as provided in paragraph 5
hereof.
(b) If Borrower shall fail to deliver (i) the initial Collateral
or Letter of Credit required by
paragraph 2 or 3 hereof (ii) any additional Collateral or
amendment to a Letter of Credit as required by paragraph 4
hereof, or (iii) a new or extended Letter of Credit, in form
and substance satisfactory to Lender, or other substitute
Collateral acceptable to Lender, not later than 10:30 a.m.
New York time on the tenth U.S. Business Day before the
expiration date of any Letter of Credit.
(c) If Borrower shall fail to pay the amount of any interest,
dividend or other distribution as required by paragraph 6
hereof.
(d) If Borrower shall fail to substitute Collateral consisting
of cash for a Letter of Credit as required by paragraph 3
hereof.
(e) If Borrower shall fail to conform or comply with any other
provision hereof and such failure shall continue for more
than five days after notice from Lender.
(f) If Borrower, or any affiliate of Borrower, or any bank which
has issued a Letter of Credit as Collateral under this
Agreement ("Issuing Bank") shall make a general assignment
for the benefit of creditors, or shall admit in writing to
its inability to pay its debts as they become due, or shall
file a petition in bankruptcy or shall be adjudicated as
bankrupt or insolvent, or shall file a petition seeking any
reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present
or future statute, law or regulation, or shall seek, consent
to or acquiesce in the appointment of any trustee, receiver
or liquidator for it or all or any material part of its
property.
(g) If Borrower, or any affiliate of Borrower, shall have been
suspended or expelled from membership or participation in
any national securities exchange or association or other
self-regulatory organization or if it is suspended from
dealing in securities by any governmental agency or if any
petition is filed against Borrower, or any affiliate of
Borrower, or an Issuing Bank in any court or before any
agency alleging the bankruptcy or insolvency of Borrower, or
any affiliate of Borrower, or an Issuing Bank, or seeking
any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present
or future statute, law or regulation, or the appointment of
a receiver or trustee of all or a portion of Borrower's
property, the property of any affiliate of Borrower or the
property of an Issuing Bank.
(h) If a final judgment for the payment of money in excess of $1
million shall be rendered against Borrower, and, within 60
days after then entry thereof, such judgment shall not have
been discharged or execution thereof stayed pending appeal,
or if, within 60 days after the expiration of any such stay,
such judgment shall not have been discharged.
(i) If an event of default with respect to Borrower shall have
occurred under any securities lending arrangement between
Borrower and BGI, as trustee or agent for any of its trust
or agency accounts.
10. Remedies of Lender.
(a) Upon any default as set forth in paragraph 9 hereof, Lender
shall have such rights as are granted to it under any Letter
of Credit and as to Collateral all of the rights and
remedies of a secured party under Article 9 of the
California Uniform Commercial Code and as otherwise provided
by law, and, in addition, may, at its sole option, either:
(i) purchase securities identical to the Securities in a
commercially reasonable manner and apply all or any
part of the Collateral or proceeds of any Letter of
Credit to the purchase price thereof, or
(ii) by notice to Borrower, sell any or all Securities to
Borrower, at a price equal to their value as of the
close of business on the Specified Country Business Day
next preceding the date of the delivery of such notice
and apply all or any part of the Collateral or proceeds
of any Letter of Credit against the amount owing to it
in respect of such sale.
In case either remedy specified in (i) or (ii) is exercised,
the obligation of Borrower to return such Securities shall
terminate.
(b) If an event of default relates solely to an Issuing Bank
under paragraph 9(f) or (g) hereof, Lender, in its discretion,
may elect to permit Borrower to remedy the default by
substituting Collateral consisting of cash for the Letter of
Credit of the Issuing Bank. Such cash must be delivered to Lender
in immediately available funds by the close of business on the
U.S. Business Day Lender notifies Borrower of its election. If
such cash Collateral is not delivered as required by this
paragraph, Lender may exercise any of the remedies provided for
by this paragraph 10 as though no election had been made.
11. Event of Default by Lender. The following shall constitute Events
of Default by Lender:
(a) If Lender shall fail to deliver Securities to Borrower
in accordance with paragraph 1 hereof.
(b) If Lender fails to release to Borrower such portion of
the Collateral as Borrower shall have demanded and to which
Borrower shall be entitled pursuant to paragraph 4(b)
hereof.
(c) If Lender fails to return the Collateral or any Letter
of Credit given as Collateral under this Agreement to
Borrower as provided in paragraph 5(b) hereof.
(d) If Lender fails to credit Borrower's account with that
portion of the income earned on the Collateral, if any, to
which Borrower may be entitled in accordance with the
agreement of the parties as provided by paragraph 7 hereof.
(e) If Lender shall make a general assignment for the
benefit of creditors, or shall admit in writing to its
inability to pay its debts as they become due, or shall file
a petition in bankruptcy or shall be adjudicated as bankrupt
or insolvent, or shall file a petition seeking any
reorganization arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present
or future statute, law or regulation, or shall seek consent
to or acquiesce in the appointment of any trustee, receiver
or liquidator of Lender or any material portion of Lender.
(f) If any petition is filed against Lender in any court or
before any agency alleging the bankruptcy or insolvency of
Lender or seeking any reorganization, dissolution or similar
relief under any present or future statute, law or
regulation, or the appointment of a receiver or trustee of
all or a portion of Lender's property.
(g) If Lender shall fail to conform or comply with any other
provision hereof and such failure shall continue for more
than five days after notice from Borrower.
12. Remedies of Borrower. Upon any default as set forth in
paragraph 11 hereof, and in addition to any other remedies
available to Borrower under this Agreement or applicable law,
Borrower may, by notice to Lender, treat the Securities as having
been purchased by Borrower from Lender at a price (the "Sale
Price") equal to the value of such Securities as of the close of
business on the Specified Country Business Day next preceding the
date of delivery of such notice. Upon receipt of notice under
this paragraph 12, Lender may exercise all rights granted to
Lender under any Letter of Credit given in lieu of Collateral
under this Agreement, and Lender may apply all or any part of the
Collateral (including the proceeds of any such Letter of Credit)
to the Sale Price owed to it. If Borrower elects to purchase the
Securities as specified in this paragraph, Lender's obligation to
return the Collateral shall terminate. Nothing in this paragraph
relieves Borrower of its obligation to pay to Lender fees and
other amounts as specified in paragraph 13.
13. Other Amounts Owing. No application of Collateral or of the
proceeds of any Letter of Credit as provided in paragraph 10 or
paragraph 12 shall in any way release Borrower from its
obligation to pay to Lender all of the following, which shall be
payable by Borrower together with interest thereon at the rate
announced from time to time by Xxxxx Fargo Bank, National
Association, at its principal office in San Francisco,
California, as its prime rate for domestic (United States)
commercial loans in effect on such date, from the dates such
amounts are payable until payment in full has been made:
(a) all amounts owing pursuant to paragraph 6;
(b) the excess, if any, of the cost of any securities
purchased under paragraph 10(a)(i) or of the sale price of
any Securities sold to Borrower under paragraph 10(a)(ii)
over the amount of Collateral or proceeds of the related
Letter of Credit with respect thereto;
(c) brokerage commissions, attorneys' fees and expenses and
all other costs of collection.
In the event Borrower exercises its remedies under paragraph 12
hereof, Lender shall return to Borrower the excess, if any, of
the value of the Collateral over the total of the Sale Price and
any other fees owed by Borrower to Lender.
14. POSSIBLE LACK OF PROTECTION UNDER SIPA. WITHOUT WAIVING ANY
RIGHTS GIVEN TO LENDER HEREUNDER, LENDER ACKNOWLEDGES THAT
PROVISIONS OF THE SECURITIES INVESTOR PROTECTION ACT OF 1970 MAY
NOT PROTECT LENDER WITH RESPECT TO SECURITIES LOAN TRANSACTIONS,
AND, THEREFORE, THE COLLATERAL DELIVERED TO LENDER MAY CONSTITUTE
THE ONLY SOURCE OF SATISFACTION OF BORROWER'S OBLIGATION IN THE
EVENT BORROWER FAILS TO RETURN THE SECURITIES.
15. Transfer Taxes and Costs. All transfer taxes and necessary
costs with respect to the transfer of the Securities either by
Lender to Borrower or by Borrower to Lender, shall be paid by
Borrower. If Lender shall incur any loss by reason of Borrower's
failure to pay all said taxes and costs as may be due, Lender
shall be entitled to receive the same from Borrower and may
retain an amount of the Collateral sufficient to satisfy its
claim against Borrower in respect to said taxes and costs.
16. Notices, Deliveries, etc. All notices, deliveries and
payments pursuant hereto shall be sufficient if in writing and
delivered (by courier or personal delivery), or mailed by
registered or certified mail, to the party entitled to receive
such notice, delivery or payment at the following addresses:
If to Lender: Barclays Global Investors, N.A.
as agent or trustee
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Securities Lending Group
Phone: (000) 000-0000
Fax: (000) 000-0000
If to Borrower: Company
Address
Attn:
Phone:
Fax:
or to such other address as either party may furnish in writing
to the other party. Notices may also be given by facsimile,
provided that such notices shall be promptly confirmed orally by
the sending party. Demands and notices pursuant to paragraphs 4
and 5 may be given orally confirmed in writing or confirmed by
the acceptance of the agreed charge to the transferee's account.
Notice given by courier or personal delivery or by registered or
certified mail shall be effective upon receipt, and all notices
given orally or by facsimile shall be effective when made.
17. Purpose of Loan/Status of Borrower. Borrower represents to
and warrants to Lender (1) that the Securities borrowed by it are
being used only for lawful purposes and (2) that it is either (i)
a bank subject to U.S. federal or state supervision, (ii) a
broker-dealer registered under the Securities Exchange Act of
1934, as amended (the "Act"), or (iii) exempt from registration
under Section 15(a)(1) of the Act as a dealer in Government
Securities.
18. Indemnification. Borrower agrees to indemnify and hold
harmless Lender from any and all damages, losses, costs and
expenses (including reasonable attorneys' fees but excluding
damages, losses, costs and expenses caused by the gross
negligence of Lender) that it may incur or suffer arising in any
way out of (a) the use by Borrower of Securities loaned to
Borrower under this Agreement or (b) the failure of Borrower to
return the Securities or (c) the enforcement of this Agreement or
any Letters of Credit or in the protection, preservation or
enforcement of Lender's rights in connection with any of the
Collateral.
19. Miscellaneous
(a) This Agreement and the rights of the parties hereunder shall
not be assignable by either party without the prior written
consent of the other party. Subject to the foregoing, this
Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns.
This Agreement shall not be changed except by an instrument in
writing signed by each of the parties hereto.
(b) Lender and/or Borrower may from time to time appoint agents
for the purpose of carrying out all or a portion of their
respective custodial responsibilities under this Agreement. To
the extent that Lender or Borrower has notified the other party
in writing of the name and address of such agent, delivery and
redelivery of Securities loaned under this Agreement may be
effectuated through such agent.
(c) For purposes of this Agreement, with respect to any loan
hereunder, a "Specified Country Business Day" shall be defined as
a day on which regular trading occurs in the principal market for
the loaned Securities subject to such loan, and in no event shall
a Saturday or Sunday be considered a Specified Country Business
Day
(d) For purposes of this Agreement a "U.S. Business Day" shall be
defined as the regular business hours of any day on which the
U.S. Federal Reserve Bank of New York, the Depository Trust
Company, Borrower and Lender are open for business.
20. Governing Law.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
(b) Each party irrevocably submits to the non-exclusive
jurisdiction of any United States Federal or New York State court
sitting in New York City with respect to any suit, action or
proceeding ("Proceeding") related to this Agreement and waives
any objection that it may have at any time to the laying of venue
of any Proceeding brought in any such court, waives any claim
that any such Proceeding ahs been brought in any inconvenient
forum and further waives the right to object, with respect to any
such Proceeding, that such court does not have jurisdiction over
such party.
(c) Each party hereto irrevocably waives any right that it may
have to trial by jury in any Proceeding.
[21. Service of Process. The Borrower hereby irrevocably
designates, appoints, authorizes and empowers as its agent for
service of process, [Name, Address of Process Agent] [CT
Corporation System, at its offices currently located at 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000] (the "Process Agent")], to
accept and acknowledge for and on behalf of the Borrower service
of any and all process, notices or other documents that may be
served in any Proceeding. Such designation and appointment shall
be irrevocable until all of Borrower's obligations hereunder have
been satisfied in full in accordance with the provisions thereof.
The Borrower covenants and agrees that it shall take any and all
reasonable action, including the execution and filing of any and
all documents, that may be necessary to continue the foregoing
designations and appointments in full force and effect and to
cause the Process Agent to continue to act in such capacity. The
Borrower consents to process being served in any suit, action or
Proceeding by serving a copy thereof upon the Process Agent in
the manner provided for notices in paragraph 16. Nothing in this
paragraph shall affect the right of any party to serve process in
any manner permitted by law.]
[22. Termination of Existing Securities Lending Agreement. As of
the date of this Agreement:
(a) The securities lending agreement between
the parties dated [ ___________ ] and any amendment thereto (together, the
"Existing Non-US Securities Lending Agreement") shall terminate save for those
provisions therein which are expressed or intended to survive the termination
thereof.
(b) All securities loans then outstanding under the Existing
Non-US Securities Lending Agreement shall be deemed to be
securities loans under this Agreement and all Collateral and
Letters of Credit accepted by Lender under the Existing Non-US
Securities Lending Agreement shall be deemed to be Collateral and
Letters of Credit under this Agreement.
(c) This Agreement shall amend, restate and supercede in its
entirety and replace the Existing Non-US Securities Lending
Agreement; provided, however, that the execution and delivery of
this Agreement shall not (a) operate as a waiver of any right,
power or remedy of the Lender or Borrower under the Existing
Non-US Securities Lending Agreement, except to the extent
expressly waived in this Agreement, or (b) extinguish or impair
any obligations of the Lender or Borrower under the Existing
Non-US Securities Lending Agreement except to the extent any such
obligation is actually satisfied by Lender or Borrower.]
This Agreement by be executed and delivered in counterparts (including by
facsimile transmission), each of which will be deemed an original.
If the foregoing correctly expresses our agreement, please confirm the same
by signing and returning the enclosed copy whereupon this letter shall become a
binding agreement as of the date appearing above.
BARCLAYS GLOBAL INVESTORS, N.A.
as trustee or agent for the
entities listed on Appendix A
hereto
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
Accepted and agreed to on this____________ day of___________________, 2002.
BORROWER
By:
----------------------------
Name:
Title:
Appendix A
1) Specified Countries. Each of the following countries shall
constitute a "Specified Country" under the terms of the Agreement:
Australia, Austria, Belgium, Denmark, Finland, France, Germany, Hong Kong,
Italy, Japan, Netherlands, New Zealand, Norway, Singapore, Spain, Sweden,
Switzerland, South Africa and the United Kingdom.
2) Modifications to Agreement.
a. Paragraph 5(a) of the Agreement is solely modified in the instances
where Australia and New Zealand are Specified Countries. After the word
"Lender" in line 4 thereof, when Australia is the Specified Country, the
following shall be inserted "; provided, however, that with respect to
Securities to be returned, Borrower will not terminate a loan of such
Securities from the ex-date minus 5 Specified Country Business Days
through the record date plus 1 Specified Country Business Day." and when
New Zealand is the Specified Country, " provided, however, that with
respect to any Securities to be returned, Borrower will not terminate a
loan of such Securities from the ex-date minus 8 Specified Country
Business Days through the ex-date."
b. Where South Africa is a Specified Country, the current Paragraph 15
is renumbered "15(a)", and the following Paragraph 15(b) is added:
"(b) In relation to any Securities issued or traded in South Africa
that are ordinarily subject to Un-certificated Securities Tax
(UST) , in accordance with the South African Un-certificated
Securities Tax Act 44 1998, or Stamp Duty, in accordance with the
South African Stamp Duties Act 77 1968, the Borrower undertakes
that the transaction
- will not exceed 12 months in duration
- is undertaken solely for the purpose of allowing the borrower to
settle a sale of identical securities
In the event that actions by the borrower result in the transaction
failing to meet the conditions laid down for an exemption from UST
or Stamp Duty the borrower hereby undertakes to account for and
make payment of such taxes for both the original transfer of
securities and any subsequent return. Further the borrower will
also satisfy any fines or levies made by the South African
authorities as a result of such failure and produce evidence on
request of the payment of such taxes and any other relevant
amount."
3) Accounts
To be delivered from time to time by Lender.
Please confirm your agreement with these terms by having a duly authorized
officer sign below.
BARCLAYS GLOBAL INVESTORS, N.A.,
as Trustee or Agent for the
entities listed on Appendix A to
the Agreement
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
Accepted and agreed to on this ___ day of __________, 200_.
BORROWER
By:
--------------------------
Name:
Title:
