EX-99.B8B
Exhibit 24(b)8
SECURITIES LENDING AGREEMENT ("Lending Agreement"), dated as
of , 1996 between ("Lender"), having its
principal place of business at , and The
Chase Manhattan Bank, N.A. ("Chase"), having its principal place of
business at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
It is hereby agreed as follows:
Section 1 - Definitions
Unless the context clearly requires otherwise, the following words
shall have the meanings set forth below when used herein:
a. "Account" shall mean the securities account established and
maintained by Chase on behalf of Lender pursuant to, as the case may be,
a separate custody agreement or a separate directed trust agreement
("Agreement") between Chase and Lender, which Agreement provides, inter
alia, for the safekeeping of Securities received by Chase from time to
time on behalf of Lender.
b. "Agreement" shall have the meaning assigned thereto in
Section 1(a) hereof.
c. "Authorized Investment" shall mean any type of instrument,
security, participation or other property in which Cash Collateral may
be invested or reinvested, as described in Section 5(f) hereof and
Appendix 4 hereto (and as such Appendix may be amended from time to time
by written agreement of the parties).
d. "Authorized Person" shall mean, except to the extent that
Chase is advised to the contrary by Proper Instruction, any person who
is authorized to give instructions to Chase pursuant to the Agreement
and any mandates given to Chase in connection with such Agreement. An
Authorized Person shall continue to be so until such time as Chase
receives Proper Instructions that nay such person is no longer an
Authorized Person.
e. "Borrower" shall mean an entity listed on Appendix 1 hereto,
other than an entity which Chase shall have been instructed to delete
from list pursuant to Written Instructions and as such Appendix may be
amended in accordance with Section 4(b) hereof.
f. "Business Day" shall have the meaning assigned thereto in
the applicable MSLA.
g. "Buy-in" shall have the meaning assigned thereto in Section
7(c) hereof.
h. "Cash Collateral" shall mean fed funds, New York Clearing
House Association funds and such non-U.S. currencies as may be pledged
by a Borrower in connection with a particular Loan.
i. "Collateral" shall have the meaning assigned thereto in the
applicable MSLA, together with Cash Collateral.
j. "Collateral Account" shall mean, as the case may be, an
account maintained by Chase with itself, with any Depository or with any
Triparty Institution and designated as a Collateral Account for the
purpose of holding any one or more of Collateral, Authorized
Investments, and Proceeds in connection with Loans hereunder.
k. "Collateral Amount" shall have the meaning assigned thereto
in Section 5(c) hereof.
l. "Collateral Criterion" shall have the meaning assigned
thereto in Section 5(c) hereof.
m. "Depository" shall mean: (1) the Depository Trust Company,
the Participants' Trust Company and any other securities depository or
clearing agency (and each of their respective successors and nominees)
registered with the U.S. Securities and Exchange Commission or
registered with or regulated by the applicable foreign equivalent
thereof or otherwise able to act as a securities depository or clearing
agency, (ii) any transnational depository, (iii) the Federal Reserve
book-entry system for the receiving and delivering of U.S. Government
Securities, and (iv) any other national system for the receiving and
delivering of that country's government securities.
n. "Difference" shall have the meaning assigned thereto in
Section 7(c) hereof.
o. "Distributions" shall have the meaning assigned thereto in
Section 3(b)(v) hereof.
p. "Dollars" shall have the meaning assigned thereto in Section
7(b) hereof.
q. "Due Date" shall have the meaning assigned thereto in
Section 7(b) hereof.
r. "Insolvency Event" shall have the meaning assigned thereto
in Section 7(b) hereof.
s. "Letter of Credit" shall have the meaning assigned thereto
in the applicable MSLA and be issued by a bank listed on Appendix 2
hereto (as such list may be amended by Chase from time to time on notice
to Lender), other than a bank deleted from such list pursuant to Written
Instruction.
t. "Loan" shall mean a loan of Securities hereunder and under
the applicable MSLA.
u. "Loan Fee" shall mean the amount payable by a Borrower to
Chase pursuant to the applicable MSLA in connection with Loans
collateralized other than by Cash Collateral.
v. "Market Value" shall have the meaning assigned thereto in
the applicable MSLA.
w. "MSLA" shall mean a master securities lending agreement
between Chase and a Borrower, pursuant to which Chase as agent lends
securities on behalf of its customers (including Lender) from time to
time. A copy of Chase's standard form of MSLA, including the
international addendum thereto, is annexed as Appendix 3.
x. "Net Assets" shall have the meaning assigned thereto in
Section 8 hereof.
y. "Net Realized Income" shall have the meaning thereto in
Section 8 hereof.
z. "Oral Instructions" shall have the meaning assigned thereto
in Section 10 hereof.
aa. "Proceeds" shall mean interest, dividends and other
payments and Distributions received by Chase in connection with
Authorized Investments.
bb. "Proper Instructions" shall mean Oral Instructions and
Written Instructions.
cc. "Rebate" shall mean the amount payable by Chase on behalf
of Lender to a Borrower in connection with Loans collateralized by Cash
Collateral.
dd. "Return Date" shall have the meaning assigned thereto in
Section 7(c) hereof.
ee. "Securities" shall mean government securities (including
U.S. Government Securities), equity securities, bonds, debentures, other
corporate debt securities, notes, mortgages or other obligations, and
any certificates, warrants or other instruments representing rights to
receive, purchase, or subscribe for the same, or evidencing or
representing any other rights or interests therein and held pursuant to
the Agreement.
ff. "Term Loan" shall have the meaning assigned thereto in
Section 5(i) hereof.
gg. "Triparty Institution" shall mean a financial institution
with which Chase shall have previously entered a triparty agreement
among itself, such Triparty Institution and a particular Borrower
providing, among other things, for the holding of Collateral in a
Collateral Account at such Triparty Institution in Chase's name on
behalf of Chase's lending customers and for the substitution of
Collateral; provided, however, that any substituted Collateral shall
meet the then standards for acceptable Collateral set by Chase.
hh. "U.S. Government Security" shall mean book-entry securities
issued by the U.S. Treasury defined in Subpart 0 of Treasury Department
Circular No. 300 and any successor provisions) and any other securities
issued or fully guaranteed by the United States government or any
agency, instrumentality or establishment of the U.S. government,
including, without limitation, securities commonly known as "Xxxxxx
Xxxx," Xxxxx Xxxx," "Xxxxxx Xxxx" and "Xxxxxxx Xxxx".
ii. "Written Instructions" shall have the meaning assigned
thereto in Section 10 hereof.
Section 2 - Appointment, Authority
(a) Appointment. Lender hereby appoints Chase as its agent to lend
Securities in the Account on Lender's behalf on a fully disclosed basis
to Borrowers from time to time in accordance with the terms hereof and
on such terms and conditions and at such times as Chase shall determine
and Chase may exercise all rights and powers provided under any MSLA as
may be incidental thereto, and Chase hereby accepts appointment as such
agent and agrees to so act.
(b) Authority. Lender hereby authorizes and empowers Chase to
execute in Lender's name on its behalf and at its risk all agreements
and documents as may be necessary to carry out any of the powers herein
granted to Chase. Lender grants Chase the authority set forth herein
notwithstanding its awareness that Chase, in its individual capacity or
acting in a fiduciary capacity for other accounts, may have transactions
with the same institutions to which Chase may be lending Securities
hereunder, which transactions may give rise to actual or potential
conflict of interest situations. Chase shall not be bound to: (i)
account to Lender for any sum received or profit made by Chase for its
own account or the account of any other person or (ii) disclose or
refuse to disclose any information or take any other action if the same
would or might in Chase's judgment, made in good faith, constitute a
breach of any law or regulation or be otherwise actionable with respect
to Chase; provided that, in circumstances mentioned in (ii) above, Chase
shall promptly inform Lender of the relevant facts (except where doing
so would, or might in Chase's judgment, made in good faith, constitute a
breach of any law or regulation or be otherwise actionable as
aforesaid).
Section 3 - Representation and Warranties
(a) Representations of each party. Each party hereto represents
and warrants to the other that: (i) it has the power to execute and
deliver this Lending Agreement, to enter into the transactions
contemplated hereby, and to perform its obligations hereunder; (ii) it
has taken all necessary action to authorize such execution, delivery,
and performance; (iii) this Lending Agreement constitutes a legal,
valid, and binding obligation enforceable against it; and (iv) the
execution, delivery, and performance by it of this Lending Agreement
shall at all times comply with all applicable laws and regulations.
(b) Representations of Lender. Lender represents and warrants to
Chase that: (i) this Lending Agreement is, and each Loan shall be,
legally and validly entered into, and does not and shall not violate any
statute, regulation, rule, order or judgment binding on Lender, or any
provision of Lender's charter or by-laws, or any agreement binding on
Lender or affecting its property, and is enforceable against Lender in
accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency or similar laws, or by equitable principles
relating to or limiting creditors' rights generally; (ii) the person
executing this Lending Agreement and all Authorized Persons acting on
behalf of Lender has and have been duly and properly authorized to do
so; (iii) it is lending Securities as principal and shall not transfer,
assign or encumber its interest in, or rights with respect to, any
Securities available for Loan hereunder; (iv) it is the beneficial owner
of all Securities or otherwise has the right to lend Securities; and (v)
it is entitled to receive all interest, dividends and other
distributions ("Distributions") made by the issuer with respect thereto.
Lender shall promptly identify to Chase by notice, which notice may be
oral, any Securities that are no longer subject to the representations
contained in (b).
Section 4 - Borrowers
(a) MSLA. Lender hereby acknowledges receipt of the form of MSLA
and authorizes Chase to lend Securities in the Account to Borrowers
thereunder pursuant to an agreement substantially in the form thereof.
(b) Borrowers. Securities may be lent to any Borrower selected
by Chase in Chase's sole discretion, in accordance with the terms
hereof. In that connection, Appendix 1 may be amended from time to time
by Chase on notice to Lender.
Section 5 - Loans
(a) Securities to be lent, Lending opportunities, Loan initiation.
All Securities of Lender held by Chase that are issued, settled or
traded in the markets that have been approved by Chase from time to time
for purposes of Chase's discretionary securities lending program shall
be subject to the terms hereof. Chase shall seek to assure that Lender
receives a fair allocation of lending opportunities vis-a-vis other
lenders, taking into account the demand for and availability of
Securities, types of Collateral, eligibility of Borrowers, limitations
on investments of Cash Collateral, tax treatment, and similar commercial
factors. From time to time, Chase may lend to Borrowers Securities held
in the Account (except Securities that are no longer subject to the
representations set forth in Section 3) and shall deliver such
Securities against receipt of Collateral in accordance with the
applicable MSLA. Chase shall have the right to decline to make any
Loans to any Borrower and to discontinue lending to any Borrower in its
sole discretion and without notice to Lender.
(b) Receipt of Collateral, Collateral substitution. For each Loan,
Chase shall receive and hold Letters of Credit received as Collateral
and Chase or a Triparty Institution shall receive and hold all other
Collateral required by the applicable MSLA in a Collateral Account, and
Chase is hereby authorized and directed, without obtaining any further
approval from Lender, to invest and reinvest all or substantially all
Cash Collateral. Chase shall credit, or where applicable shall have a
Triparty Institution credit, all Collateral, Authorized Investments and
Proceeds to a Collateral Account and Chase shall not xxxx its books and
records to identify Lender's interest therein, it being understood,
however, that all monies credited to a Collateral Account may for
purposes of investment be commingled with cash collateral held for other
lenders of securities on whose behalf Chase may act. Chase may, in its
sole discretion, liquidate any Authorized Investment and credit the net
proceeds in a Collateral Account. Chase shall accept substitutions of
Collateral in accordance with the applicable MSLA and shall credit, or
where applicable shall have a Triparty Institution credit, all such
substitutions to a Collateral Account.
(c) Xxxx to market procedures. (i) Chase shall require initial
Collateral for a Loan in an amount determined by applying the then
applicable "Collateral Criterion" (as defined below) to the Market Value
of the Security that is the subject of the Loan. The Collateral
Criterion with respect to a given Security shall be an amount equal to
the then applicable percentage (currently 102% for securities issued in
the U.S. and 105% for securities issued outside of the U.S.) of the
Market Value of the Security (plus accrued interest, if any, with
respect to debt securities) which is the subject of a Loan as determined
as of the close of trading on the preceding Business Day. (ii) Each
Business Day Chase shall determine if the Market Value of all Collateral
received by Chase from a given Borrower in connection with all loans to
such Borrower from all lenders is at least equal to the aggregate amount
("Collateral Amount") determined by applying the applicable Collateral
Criterion to each security on loan to such Borrower from all lenders.
(iii) In accordance with general market practice, the Market Value of
certain securities (including, without limitation, U.S. Government
Securities) whether on Loan or received as Collateral, may be determined
on a same day basis by reference to recognized pricing services.
(d) Demand for additional Collateral. If the determination
made in Section 5(c)(ii) above demonstrates that the Market Value of all
Collateral received from a given Borrower is not at least equal to the
Collateral Amount, Chase shall demand additional Collateral from such
Borrower in accordance with the applicable MSLA so as to meet the
Collateral Amount by making specific Loans; provided that, Chase may
from time to time establish de minimis guidelines pursuant to which a
xxxx would not be made even where the aggregate Collateral Amount has
not been met.
(e) Changes in procedures applicable to Collateral. The
Collateral procedures set forth in Sections 5(b)-(d) above reflect
Chase's current practice and may be changed by Chase from time to time
based on general market conditions (including volatility of Securities
on Loan and of securities Collateral), the Market Value of Securities on
Loan to a given Borrower, and in accordance with general market practice
and regulatory requirements. Chase shall notify Lender of material
revisions to the foregoing procedures.
(f) Investment of Cash Collateral. (i) Chase is hereby
authorized to invest and reinvest cash Collateral in accordance with the
investment guidelines (and the interpretations, procedures and
definitions included therewith) annexed hereto as Appendix 4. (ii)
Authorized Investments are made for the account of, and at the sole risk
of, Lender. In that connection, Lender shall pay to Chase on demand in
cash an amount equal to any deficiency in the amount of Collateral
available for return to a Borrower pursuant to an applicable MSLA.
(g) Lender's rights with respect to Securities on Loan;
Distribution and voting rights. (i) An amount equal to the amount of
all Distributions paid with respect to Securities on Loan that Lender
would have received had such Securities not been on Loan shall be
credited to Lender's account on the date such Distributions are
delivered by Borrower to Chase. Any non-cash Distribution on Securities
on Loan which is in the nature of a stock split or a stock dividend,
shall be added to the Loan (and shall be considered to constitute
Securities on Loan) as of the date such non-cash Distribution is
received by the Borrower and shall be subject to the provisions of this
Lending Agreement; provided that the Lender may, by giving chase ten
(10) Business Days' notice prior to the date of such non-cash
Distribution (or such different amount of time as Chase may from time to
time require on advice to Lender), direct Chase to request that the
Borrower deliver such non-cash Distribution to Chase pursuant to the
applicable MSLA, in which case Chase shall credit such non-cash
Distribution to Lender's account on the date it is delivered to Chase.
Without regard to the reference to "delivered" in the foregoing, the
"AutoCredit" provisions of the Agreement shall apply where a Borrower
fails to make a Distribution payment to Chase, the effect of which would
be for Chase to credit Lender's account with Distributions on the
payable date. (ii) During the term of any Loan, Chase will permit the
Securities on Loan to be transferred into the name of and be voted by
the Borrower or others. Lender shall not be entitled to participate in
any dividend reinvestment program or to vote proxies with respect to
Securities that are eligible for Loan (whether or not actually on Loan)
as of the applicable record date for such Securities.
(h) Advances, overdrafts and indebtedness, Security Interest.
Chase may, in its sole discretion, advance funds on behalf of Lender in
order to pay to Borrowers any Rebates or to return to Borrowers Cash
Collateral to which they are entitled pursuant to the applicable MSLA.
Lender shall repay Chase on demand the amount of any advance or any
other amount owned by Lender hereunder plus accrued interest at a rate
per annum not to exceed the rate customarily charged by Chase for such
loans at the time such loan is made and shall otherwise be on such terms
and conditions as Chase customarily makes such loans available. In
order to secure repayment of any advance or other indebtedness of Lender
to Chase arising hereunder, Chase shall have a continuing lien and
security interest in and to all assets now or hereafter held in the
Account and any Collateral Account (to which Lender is entitled
hereunder) and any other property at any time held by it for the benefit
of Lender or in which Lender may have an interest which is then in
Chase's possession or control or in the possession or control of any
third party acting on Chase's behalf. In this regard, Chase shall be
entitled to all the rights and remedies of a pledgee under common law
and a secured party under the New York Uniform Commercial Code and/or
any other applicable laws and/or regulations as then in effect.
(i) Termination of a Loan. (i) Loans shall generally be terminable
on demand. With the prior approval of Lender, however, Loans may be
made on the basis of a reasonably anticipated termination date ("Term
Loan") and without providing for the right of substitution of equivalent
Securities. Termination of a Term Loan prior to its anticipated
termination date by either Lender or Borrower may result in the
terminating party having to pay non-terminating party damages based on
the cost of obtaining a replacement loan. (ii) Chase shall terminate
any Loan of Securities to a Borrower as soon as practicable after (a)
receipt by Chase of a notice of termination of the respective MSLA; (b)
receipt by Chase of Written Instructions directing it to terminate a
Loan; (c) receipt by Chase of Written Instructions instructing it to
delete from Appendix 2 the Borrower to whom such Loans was made; (d)
receipt by Chase of Written Instructions advising that the Security
subject to a Loan is no longer subject to the representation contained
in Section 3 hereof; (e) receipt by Chase of notice advising that an
Event of Default (as defined in the applicable MSLA) has occurred and is
continuing beyond any applicable grace period; (f) whenever Chase, in
its sole discretion, elects to terminate such Loan other than a Term
Loan; or (g) termination of this Lending Agreement. (iii) If Securities
which are the subject of a Loan being terminated are to be sold by
Lender, Written Instructions shall in no event be given to Chase later
than the trade date established by Lender for such sale or such earlier
date of which Chase may advise Lender from time to time with respect to
particular markets. Chase shall not be liable for any failure of a
Borrower to return Securities on Loans in a time fashion.
(j) Recordkeeping and Reports. Chase shall establish and
maintain such records as are reasonably necessary to account for Loans
that are made and the income derived therefrom. Chase shall provide
Lender with a monthly statement describing the Loans made during the
preceding month, and the income derived from Loans, during the period
covered by such statement. A party shall comply with the reasonable
requests of the other party for information necessary to the requester's
performance of its duties hereunder.
Section 6 - Default by Borrower
(1) Chase may assume (unless it has actual knowledge to the
contrary) that any representations made by a Borrower in connection with
any Loan are true, that no event which is or may become an Event of
Default (as defined in the applicable MSLA) has occurred and that a
Borrower has complied with its obligations under the applicable MSLA.
Subject to Sections 7(b)-(d), Chase shall have no responsibility for the
accuracy or completeness of any information supplied, or for any breach
of any obligation, by any Borrower under or in connection with any MSLA
or Loan. Chase shall not be liable as a result of taking or omitting to
take any action provided that Chase shall have carried out its
responsibilities hereunder in good faith. (ii) If any Borrower with
respect to any Loan affected pursuant hereto and pursuant to the
applicable MSLA fails to return any loaned Securities when due
thereunder for reasons other than relating to the solvency of the
Borrower, Chase shall then take whatever action its deems appropriate in
accordance with general market practice and Chase's reasonable judgment,
including, but no necessarily limited to, claiming compensation from
such Borrower on behalf of Lender in the event a trade executed by
Lender fails on account of such Borrower's failure timely to have
returned Securities on Loan or, where Chase deems it necessary, such
other action as may be permitted by the applicable MSLA, including
collecting any applicable MSLA fails to return any Securities on Loan
when due thereunder for reasons relating to the solvency of the
Borrower, Chase shall take such action as its deems appropriate in
accordance with Chase's reasonable judgment under the applicable MSLA.
Section 7 - Standard of Care, Liabilities, Indemnification
(a) Standard of care, Liabilities. Except as provided in
paragraphs (b) and (c) hereof, Chase shall be liable for any costs,
expenses, damages, liabilities or claims (including attorneys' and
accountants' fees) incurred by Lender, except those costs, expenses,
damages, liabilities and claims arising out of the negligence, bad faith
or willful misconduct of Chase. Chase shall have no obligation
hereunder for: (i) costs, expenses, damages, liabilities or claims
(including attorneys' and accountants' fees), which are sustained or
incurred by Lender by reason of any action or inaction by any pricing
service, any Depository or a Triparty Institution or their respective
successors or nominees; and (ii) any failure to perform any obligation
due to any matters beyond the control of Chase. In no event shall Chase
be liable for indirect or consequential damages or lost profits or loss
of business, arising hereunder or in connection herewith, even if
previously informed of the possibility of such damages and regardless of
the form of action.
Except for any costs or expenses incurred by Chase in performing
its obligations pursuant to paragraphs (b) and (c) hereof any ordinary
operating expenses incurred by Chase in providing services hereunder,
Lender shall indemnify Chase and hold it harmless from and against any
and all costs, expenses, damages, liabilities or claims, including
reasonable fees and expenses of counsel, which Chase may sustain or
incur or which may be asserted against Chase by reason of or as a result
of any action taken or omitted by Chase in connection with operating
under this Lending Agreement or enforcing Lender's rights under the
applicable MSLA, other than those costs, expenses, damages, liabilities
or claims arising out of the negligence, bad faith or willful misconduct
of Chase. The foregoing indemnity shall be a continuing obligation of
the Lender, its successors and assigns, notwithstanding the termination
of any Loans hereunder or of this Lending Agreement. Chase may charge
any amounts to which it is entitled hereunder against the Account, and
Lender shall be entitled to an accounting of all amounts so charged.
Actions taken or omitted in reliance upon Proper Instructions, or upon
any information, order, indenture, stock certificate, power of attorney,
assignment, affidavit or other instrument reasonably believed by Chase,
in good faith, to be genuine or bearing the signature of a person or
persons believed, in good faith, to be authorized to sign, countersign
or execute the same, shall be conclusively presumed to have been taken
or omitted in good faith.
(b) Indemnification of Lender in respect to Distributions. If the
Borrower in respect of any Loan effected pursuant hereto and pursuant to
the applicable MSLA fails, as a result of its bankruptcy, insolvency,
reorganization, liquidation, receivership or similar event (each an
"Insolvency Event"), to remit to Chase for Lender's account any
Distributions on or with respect to Securities on Loan when due (the
"Due Date") in accordance with such MSLA and such Due Date occurs at
least one day prior to an Insolvency Event then Chase shall at its
expense (subject to paragraph (d) hereof) and within one (1) Business
Day of the Due Date, undertake the following: (i) with respect to
Distributions in the form of cash, Chase shall credit Lender's account
with the full amount of such Distributions and (ii) with respect to
Distributions in the form of securities, Chase shall, at its option,
either purchase replacement securities (of an equal amount of the same
issue, class, type or series as the Distributions) on the principal
market in which such securities are traded or credit Lender's account
with the market value in United States dollars ("Dollars") of such
Distributions on the Due Date as determined by Chase in good faith.
Market value shall be determined by Chase in accordance with the
applicable MSLA, including the computation of Dollar equivalents where
Securities on Loan and/or Collateral (and Proceeds) are denominated in a
currency other than Dollars.
(c) Indemnification of Lender in respect of Securities. If the
Borrower in respect of any Loan effected pursuant hereto and pursuant to
the applicable MSLA fails to return any Securities on Loan to Chase for
Lender's account when due thereunder (the "Return Date") which is the
date of default, then Chase shall, at its expense (subject to paragraph
(d) hereof) and within one (1) Business Day of the Return Date, credit
Lender's account in Dollars with the difference ("Difference") (where a
positive number), if any, between (x) the market value of such lent
Securities on the Return Date (including, in the case of debt
Securities, accrued but unpaid interest), and (y) in the case of Loans
collateralized by (i) Cash Collateral, the greater of (A) the Market
Value of the Cash Collateral on the date of initial pledge as adjusted
for any subsequent marks-to-market through the Return Date and (B) the
Market Value of Cash Collateral investments on the Return Date, (ii)
non-Cash Collateral comprising securities Collateral, the greater of the
Market Value of such Collateral on the (A) Business Day immediately
preceding the Return Date and (B) Return Date, or (iii) non-Cash
Collateral comprising Letter of Credit Collateral, the Market Value of
the Letter of Credit Collateral on the date of initial pledge as
adjusted for any subsequent marks-to-market through the Return Date.
Market Value shall be determined by Chase in accordance with the
applicable MSLA, including the computation of Dollar equivalents where
Securities on Loan and/or Collateral (and Proceeds) are denominated in a
currency other than Dollars. Where Cash Collateral and non-Cash
Collateral have each been allocated to a Loan as of the Return Date, the
Difference payable by Chase shall be computed in accordance with the
foregoing as if there had been two Loans in effect on the Return Date,
one collateralized by Cash Collateral and the other collateralized by
non-Cash Collateral. In lieu of paying Lender the Difference, Chase
may, at its sole option and expense, purchase for Lender's account
("Buy-in") replacement securities of the same issue, type, class, and
series as that of the Securities on Loan.
(d) Subrogation. If Chase makes a payment or a purchase pursuant
to Section 7(b) or effects a Buy-in pursuant to Section 7(c), or if
Chase effects a Difference payment pursuant to Section 7(c) on account
of a failure to return Securities on Loan not arising from an Insolvency
Event, Chase shall, to the extent of such payment, purchase, Difference
payment or Buy-in, be subrogated to, and Lender shall assign and be
deemed to have assigned to Chase, all of its rights in, to and against
the Borrower (and any guarantor thereof) in respect of such Loan, any
Collateral pledged by the Borrower in respect of such Loan, and all
proceeds of such Collateral. In the event that Lender receives or is
credited with any payment, benefit or value from or on behalf of the
Borrower in respect of rights to which Chase is subrogated as provided
herein, Lender shall promptly remit or pay to Chase the same (or its
Dollar equivalent) but only to the extent that Lender has been paid all
amounts owed to it by Borrower.
Section 8 - Chase Compensation
(a) In connection with each Loan hereunder, Lender shall pay to
Chase a fee equal to ___% of (i) earnings (less any Rebate paid by Chase
to a Borrower) derived from Authorized Investments in connection with
Loans collateralized by cash, and (ii) any Securities Loan Fee paid or
payable by the Borrower on Loans not collateralized by cash. (b) The
fee payable to Chase for services performed pursuant to Section 5(f)
hereof shall be equal to one tenth of the one percent (0.1%) of the
Fund's average daily Assets (with "Fund" being as defined in Appendix 4
hereto). All securities in the Fund shall be valued based on their
amortized cost. Fees shall be accrued and charged daily against the
Fund's yield or assets, as appropriate, and shall be payable monthly in
arrears on the first business day of the month following the month in
which earned. (c) Chase is authorized, on a monthly basis, to charge
all the foregoing fees (together with reasonable expenses incurred by
Chase hereunder) and any other amounts owed by Lender hereunder against
the Account and/or a Collateral Account.
Section 9 - Taxes
Lender shall be responsible for all filings, tax returns and
reports on any Loans undertaken by Chase on Lender's behalf which are to
be made to any authority whether governmental or otherwise and for the
payment of all unpaid calls, taxes (including, without limitations, any
value added tax), imposts, levies or duties due on any principal or
interest, or any other liability or payments arising out of or in
connection with any Securities or any Collateral, and in so far as Chase
is under obligation (whether of a governmental nature or otherwise) to
pay the same on Lender's behalf Chase may do so out of any monies or
assets held by it pursuant to the terms of the Agreement or hereunder.
Section 10 - Instructions
(a)(i) Written Instructions. "Written Instructions" shall mean
written communications actually received by Chase from an Authorized
Person or from a person reasonably believed by Chase 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 reasonably acceptable to Chase and whereby Chase is
able to verify with a reasonable degree of certainty the identity of the
sender of such communications or with communications are transmitted
with proper testing or authentication pursuant to terms and conditions
which Chase may specify. (ii) Oral Instructions. "Oral Instructions"
shall mean oral communications actually received by Chase from an
Authorized Person or from a person reasonably believed by Chase to be an
Authorized Person. Oral Instructions shall promptly thereafter be
confirmed in writing by an Authorized Person (which confirmation may
bear the facsimile signature of such Person), but Lender will hold Chase
harmless for the failure of an Authorized Person to send such
confirmation in writing, the failure of such confirmation to conform to
the Oral Instructions received, or Chase's failure to produce such
confirmation at any subsequent time. Lender shall be responsible for
safeguarding any testkeys, identification codes or other security
devices which Chase may make available to Lender or its Authorized
Persons.
(b) Unless otherwise expressly provided, all Proper Instructions
shall continue in full force and effect until canceled or superseded.
Section 11 - Pricing Services
Chase may use any pricing service referred to in an applicable MSLA
and any other recognized pricing service (including itself and any of
its affiliates) in order to perform its valuation responsibilities with
respect to Securities, Collateral and Authorized Investments, and Lender
shall hold Chase harmless from and against any loss or damage suffered
or incurred as a result of errors or omissions of any such pricing
service.
Section 12 - Termination
This Lending Agreement may be terminated at any time by either
party upon delivery to the other party of notice specifying the date of
such termination, which shall be not less than 30 days after the date of
receipt of such notice. Notwithstanding any such notice, this Lending
Agreement shall continue in full force and effect with respect to all
Loans outstanding on the termination date, which Loans shall, however,
be terminated as soon as reasonably practicable.
Section 13 - Miscellaneous
(a) Legal proceedings. Chase may refrain from bringing any legal
action or proceeding arising out of or in connection with any Loan until
it shall have received such security as it may require for all costs,
expenses (including legal fees) and liabilities which it will or may
expend or incur in relation thereto.
(b) Integration, Lending Agreement to Govern. This Lending
Agreement and the Agreement contain the complete agreement of the
parties with respect to the subject matter hereof and supersede and
replace any previously made proposals, representations, warranties or
agreements with respect thereto by the parties. In the event of any
conflict between this Lending Agreement, and the Agreement, this Lending
Agreement shall govern.
(c) Notice. Unless expressly provided herein to the contrary,
notices hereunder shall be in writing, and delivered by telecopier,
overnight express mail, first-class postage prepaid, delivered
personally or by receipt courier service. All such notices which are
mailed shall be deemed delivered upon receipt. Notices shall be
addresses as follows (or to such other address as a party may from time
to time designate on notice duly given in accordance with this
paragraph): notices to Chase shall be addressed to it at 2 Chase
Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Securities Lending Division; notices to be given to Lender shall be
addressed to it at its offices at
Attention: .
(d) Amendments, Waiver. This Lending Agreement may be modified
only by a written amendment signed by both parties, and no waiver of any
provisions hereof shall be effective unless expressed in a writing
signed by the party to be charged.
(e) Government Law, Consent to Jurisdiction, Waiver of Immunity.
This Lending Agreement shall be construed in accordance with laws of the
State of New York, without regard to the conflict of laws principles
thereof. Chase and Lender each hereby consents to the jurisdiction of a
state or federal court situated in New York City, New York in connection
with any dispute arising hereunder and Lender hereby waives any claim of
forum non conveniens to the extent that it may lawfully do so. To the
extent that in any jurisdiction Lender may now or hereafter be entitled
to claim, for itself or its assets, immunity from suit, execution,
attachment (before or after judgment) or other legal process, Lender
irrevocably shall not claim, and it hereby waives, such immunity.
(f) Counterparts, Headings. This Lending Agreement may be executed
in several counterparts, each one of which shall constitute an original,
and all collectively shall constitute but one instrument. The headings
of the sections hereof are included for convenience of reference only
and do not form part of this Lending Agreement.
(g) Severability. Any provisions of this Lending Agreement which
may be determined by competent authority to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition, or unenforceability
without invalidating the remaining provisions hereof, and any such
prohibition or unenforceably in any jurisdiction shall not invalidate or
render unenforceable such provisions in any other jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Lending Agreement
as of the date first above-written.
[Insert name of LENDER] THE CHASE MANHATTAN BANK, N.A.
By: By:
Title: Title:
