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SECURITIES LENDING AUTHORIZATION AGREEMENT
Among
THE XXXXXX FUNDS
INVESTORS FIDUCIARY TRUST COMPANY
and
STATE STREET BANK AND TRUST COMPANY
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TABLE OF CONTENTS
PAGE
1. DEFINITIONS ............................................................ 1
0. XXXXXXXXXXX XX XXXXX XXXXXX ............................................ 2
3. SECURITIES TO BE LOANED ................................................ 3
4. BORROWERS .............................................................. 3
5. SECURITIES LOAN AGREEMENTS ............................................. 4
6. LOANS OF AVAILABLE SECURITIES .......................................... 4
7. DISTRIBUTIONS ON AND VOTING RIGHTS WITH RESPECT TO LOANED SECURITIES ... 5
8. COLLATERAL ............................................................. 6
9. INVESTMENT OF CASH COLLATERAL AND COMPENSATION ......................... 7
10. FEE DISCLOSURE ......................................................... 8
11. RECORDKEEPING AND REPORTS .............................................. 8
12. STANDARD OF CARE ....................................................... 9
13. REPRESENTATIONS AND WARRANTIES ......................................... 9
14. INDEMNIFICATION ........................................................ 10
15. CONTINUING AGREEMENT AND TERMINATION ................................... 11
16. NOTICES ................................................................ 12
17. MISCELLANEOUS .......................................................... 12
18. SECURITIES INVESTORS PROTECTION ACT .................................... 13
19. COUNTERPARTS ........................................................... 13
20. MODIFICATION ........................................................... 13
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EXHIBITS AND SCHEDULES
EXHIBIT 4.1
EXHIBIT 5
SCHEDULE A
SCHEDULE B
SCHEDULE 8.1
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SECURITIES LENDING AUTHORIZATION AGREEMENT
Agreement dated the ____ day of ______________, 19__ among the
registered management investment companies on behalf of the funds listed on
Schedule B attached hereto (the "Client"), INVESTORS FIDUCIARY TRUST COMPANY
("IFTC"), a Missouri trust company and STATE STREET BANK AND TRUST COMPANY, its
affiliates or subsidiaries ("State Street"), setting forth the terms and
conditions under which State Street is authorized to act on behalf of the Funds
and IFTC with respect to the lending of certain securities of the Funds held by
IFTC as custodian.
This Agreement shall be deemed for all purposes to constitute a
separate and discrete agreement between State Street and each of the series of
the funds listed on Schedule B to this Agreement (each a "Client" and
collectively, the "Clients") as it may be amended by the parties, and no Client
shall be responsible or liable for any of the obligations of any other Client
under this Agreement or otherwise, notwithstanding anything to the contrary
contained herein.
This Agreement has been executed by an officer of each Client, in that
capacity and not individually. State Street and IFTC acknowledge that the
obligations of or arising out of this Agreement are not binding upon any of the
trustees, directors, officers, employees, agents or shareholders individually,
but are binding solely upon the assets and property of the Client.
Notwithstanding any other provision of this Agreement to the contrary, to the
extent that this Agreement is executed by an Investment Company, on behalf of
one or more investment portfolios of such Investment Company, as a Client(s)
hereunder, State Street and IFTC further acknowledge that the obligations of or
arising out of this Agreement are binding upon the assets and property of the
investment portfolio on whose behalf an Investment Company has executed this
instrument and that, with respect to each such investment portfolio, such
obligations are several but not joint. Without limiting the foregoing, the
obligations of all the Clients are several, not joint.
NOW, THEREFORE, in consideration of the mutual promises and of the
mutual covenants contained herein, each of the parties does hereby covenant and
agree as follows:
1. Definitions. For the purposes hereof:
(a) "Available Securities" means the securities of the Client that are
available for Loans pursuant to Section 3.
(b) "Borrower" means any of the entities to which Available Securities
may be loaned under a Securities Loan Agreement, as described in Section 4.
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(c) "Collateral" means collateral delivered by a Borrower to secure its
obligations under a Securities Loan Agreement.
(d) "Investment Manager" when used in any provision, means the person
or entity who has discretionary authority over the investment of the Available
Securities to which the provision applies.
(e) "Loan" means a loan of Available Securities to a Borrower.
(f) "Loaned Security" shall mean any "security" which is delivered as a
Loan under a Securities Loan Agreement; provided that, if any new or different
security shall be exchanged for any Loaned Security by recapitalization, merger,
consolidation, or other corporate action, such new or different security shall,
effective upon such exchange, be deemed to become a Loaned Security in
substitution for the former Loaned Security for which such exchange was made.
(g) "Market Value" of a security means the market value of such
security (including, in the case of a Loaned Security that is a debt security,
the accrued interest on such security) as determined by nationally recognized
pricing services designated by State Street, or such other independent sources
as may be selected by State Street on a reasonable basis.
(h) "Securities Loan Agreement" means the agreement between a Borrower
and State Street (on behalf of the Client) that governs Loans, as described in
Section 5.
(i) "Replacement Securities" means securities of the same issuer, class
and denomination as Loaned Securities.
2. Appointment of State Street.
The Client hereby appoints and authorizes State Street, its affiliates
or subsidiaries, as its sole and exclusive agent to lend Available Securities to
Borrowers in accordance with the terms of this Agreement. State Street shall
have the responsibility and authority to do or cause to be done all acts State
Street shall determine to be desirable, necessary, or appropriate to implement
and administer this securities lending program. The Client agrees that State
Street is acting as a fully disclosed agent and not as principal in connection
with the securities lending program. State Street may take action as agent of
the Client on an undisclosed or a disclosed basis.
The Client also appoints and authorizes State Street, its
affiliates or subsidiaries, as its agent, to enter into fee for holds
arrangements with respect to certain Available Securities. State Street, as
agent, will, in return for a fee from the Borrower, hold and reserve certain
Available Securities and refrain from lending such securities to any third
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party without the Borrower's permission, provided, however, that the fee for
holds arrangements shall not restrict or otherwise affect Client's ownership
rights with regard to the Available Securities. The fee from the Borrower shall
be allocated between State Street and the Client in accordance with Schedule A.
3. Securities to be Loaned.
State Street acts will act as agent on behalf of certain securities
owned by the Client. All of the Client's securities held by IFTC as custodian
shall be subject to this securities lending program and constitute Available
Securities hereunder, except those securities which the Client or the Investment
Manager specifically identifies in notices to State Street as not being
Available Securities. In the absence of any such notice identifying specific
securities, State Street shall have no authority or responsibility for
determining whether any of the Client's securities should be excluded from the
lending program.
4. Borrowers.
The Available Securities may be loaned to any Borrower
identified on the Schedule of Borrowers, as such Schedule may be modified from
time to time by State Street and Client
In the event the Client approves lending to borrowers resident in the
United Kingdom ("UK"), the Client shall complete Part 1 of the document known as
a "MOD-2 form," which is attached hereto as Exhibit 4.1.
In the event that securities lending activity is undertaken through its
London office, State Street becomes subject to additional regulation in the UK,
and State Street is obliged to notify the you of the following matters:
i. State Street shall make available to you established
procedures in accordance with the requirements of the
Securities and Futures Authority for the effective
consideration of complaints concerning State Street's
activities carried on in the UK.
ii. Where a liability in one currency is to be matched by an asset
in a different currency, or where an investment transaction
relates to an investment denominated in a currency other than
sterling, a movement of exchange rates may have a separate
effect, favorable or unfavorable, on the gain or loss which
would otherwise be experienced on the investment.
iii. State Street or an affiliate may have an interest that is
material to the investment or transaction concerned and
neither State Street nor any such affiliate shall be obliged
to disclose such interest or account to you for any
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profits or benefits made or derived by it or any of its
associates from any such transaction.
iv. Any assets which State Street holds in the form of money shall
not be treated by State Street as the Clients' Money as
defined by The Financial Services (Client Money) Regulations
1991 of the United Kingdom as amended (the "Clients' Money
Regulations") and will not be held in accordance with the
Clients' Money Regulations or such other regulations as shall
amend or replace the Clients' Money Regulations from time to
time.
5. Securities Loan Agreements.
The Client authorizes State Street to enter into one or more Securities
Loan Agreements with such Borrowers as may be selected by State Street. Each
Securities Loan Agreement shall have such terms and conditions as State Street
may negotiate with the Borrower, however certain terms of individual loans,
including rebate fees to be paid to the Borrower for the use of cash Collateral,
shall be negotiated at the time a loan is made and shall be within a reasonable
range of prevailing rates and amounts for similar investment arrangements. A
form of State Street's Securities Loan Agreement is attached hereto as Exhibit
5. In accordance with the Securities Loan Agreement with a Borrower, Borrower
will be responsible for all costs associated with a failed settlement resulting
from the Borrower's failure to return a Loaned Security within the requisite
settlement period. State Street, on behalf of the Client, will exercise all
available rights of cross-collateralization.
6. Loans of Available Securities.
State Street shall have authority to make Loans of Available Securities
to Borrowers, and to deliver such securities to Borrowers. State Street shall be
responsible for determining whether any such Loan shall be made, and for
negotiating and establishing the terms of each such Loan. State Street shall
have the authority to terminate any Loan in its discretion, at any time and
without prior notice to the Client.
The Client acknowledges that State Street administers securities
lending programs for other clients of State Street. State Street will allocate
securities lending opportunities among its clients, using reasonable and
equitable methods established by State Street from time to time. State Street
does not represent or warrant that any amount or percentage of the Client's
Available Securities will in fact be loaned to Borrowers. The Client agrees that
it shall have no claim against State Street and State Street shall have no
liability arising from, based on, or relating to, loans made for other clients,
or loan opportunities refused hereunder, whether or not State Street has made
fewer or more loans for any other client, and whether or not any loan for
another client, or the opportunity refused, could have resulted in loans made
under this Agreement.
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The Client may terminate a Loan at any time. The Client also
acknowledges that, under the applicable Securities Loan Agreements, the
Borrowers will not be required to return Loaned Securities immediately upon
receipt of notice from State Street terminating the applicable Loan, but instead
will be required to return such Loaned Securities within the customary
settlement period following notice of termination of the Loan and in no case
later than five (5) business days. Upon receiving a notice from the Client or
the Investment Manager that Available Securities which have been loaned to a
Borrower should no longer be considered Available Securities (whether because of
the sale of such securities or otherwise), State Street shall use its reasonable
efforts to notify promptly thereafter the Borrower which has borrowed such
securities that the Loan of such securities is terminated and that such
securities are to be returned within the time specified by the applicable
Securities Loan Agreement.
7. Distributions on and Voting Rights with Respect to Loaned Securities.
The Client represents and warrants that it is the beneficial owner of
(or exercises complete investment discretion over) all Available Securities free
and clear of all liens, claims, security interests and encumbrances and no such
security has been sold, and that it is entitled to receive all distributions
made by the issuer with respect to Loaned Securities. Except as provided in the
next sentence, all interest, dividends, and other distributions paid with
respect to Loaned Securities shall be credited to the Client's account on the
date such amounts are delivered by the Borrower to State Street. 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 Loan (and shall be considered to constitute
Loaned Securities) as of the date such non-cash distribution is received by the
Borrower; provided that the Client (or Investment Manager) may, by giving State
Street ten (l0) business days' notice prior to the date of such non-cash
distribution, direct State Street to request that the Borrower deliver such
non-cash distribution to State Street, pursuant to the applicable Securities
Loan Agreement, in which case State Street shall credit such non-cash
distribution to the Client's account on the date it is delivered to State
Street.
The Client acknowledges that it will not be entitled to participate in
any dividend reinvestment program or to vote with respect to securities that are
on loan on the applicable record date for such securities.
The Client also acknowledges that any payments of distributions from
Borrower to the Client are in substitution for the interest or dividend accrued
or paid in respect of Loaned Securities and that the tax treatment of such
payment may differ from the tax treatment of such interest or dividend.
If an installment, call or rights issue becomes payable on or in
respect of any Loaned Securities, State Street shall use all reasonable
endeavors to ensure that any timely instructions from the Client are complied
with, but State Street shall not be required to make
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any payment unless the Client has first provided State Street with funds to make
such payment.
8. Collateral.
(a) Receipt of Collateral. The Client authorizes State Street to
receive and to hold, on the Client's behalf, Collateral from Borrowers to secure
the obligations of Borrowers with respect to any loan of securities made on
behalf of the Client pursuant to the Securities Loan Agreements. All investments
of cash Collateral shall be for the account and at the risk of the Client.
Concurrently with the delivery of the Loaned Securities to the Borrower under
any Loan, State Street shall receive from the Borrower Collateral in any of the
forms listed on Schedule 8.1. Paragraph 3 of said Schedule may be amended from
time to time by State Street upon written notice to the Client.
The initial Collateral received shall (i) in the case of Loaned
Securities denominated in United States Dollars or whose primary trading market
is located in the United States or sovereign debt issued by foreign governments,
have a value of 102% of the Market Value of the Loaned Securities, or (ii) in
the case of Loaned Securities which are not denominated in United States Dollars
or whose primary trading market is not located in the United States, have a
value of 105% of the Market Value of the Loaned Securities or (iii) have such
other value as may be applicable in the jurisdiction in which such Loaned
Securities are customarily traded. Thereafter, State Street shall take such
action as is appropriate with respect to the Collateral under the applicable
Securities Lending Agreement.
(b) Marking to Market. State Street shall value all Loaned Securities
in accordance with its customary practice. Pursuant to the terms of the
applicable Securities Loan Agreement, State Street shall, in accordance with
State Street's reasonable and customary practices and prevailing industry
practices, xxxx each Loaned Security and its Collateral to their Market Value
each business day based upon the Market Value of the Collateral and the Loaned
Security at the close of business on the preceding business day employing the
most recently available pricing information, and ensure that each applicable
Securities Loan Agreement shall require each Borrower to deliver additional
Collateral (for a letter of credit Collateral, an additional or replacement
letter of credit) to State Street in accordance with the above percentages in
the event that at the close of business on any business day the Market Value of
the Collateral delivered by such Borrower with respect to a Loaned Security
shall be less than (i) in the case of Loaned Securities denominated in United
States Dollars or whose primary trading market is located in the United States
or sovereign debt issued by foreign governments, 102% of the Market Value of the
Loaned Securities or (ii) in the case of Loaned Securities whose primary trading
market is not located in the United States (other than sovereign debt issued by
foreign governments) 104.5% of the Market Value of the Loaned Securities or
(iii) such other xxxx to market level as may be applicable in the jurisdiction
in which such securities are customarily traded; provided, however, that in the
event of the application of part (iii) above, State Street shall consult with
the Client and
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obtain its prior written approval. Thereafter, State Street shall take such
action as is appropriate with respect to the Collateral under the applicable
Securities Loan Agreement. State Street shall also notify the Client in the
event changes are made to its xxxx to market procedures.
(c) Return of Collateral. The Collateral shall be returned to Borrower
at the termination of the Loan upon the return of the Loaned Securities by
Borrower to State Street in accordance with the applicable Securities Loan
Agreement.
(d) Limitations. State Street shall invest cash Collateral in
accordance with any directions, including any limitations established by the
Client in a writing identified to this Agreement and acknowledged in writing by
State Street and shall exercise reasonable care, skill, diligence and prudence
in the investment of Collateral. Subject to the foregoing limits and standard of
care, State Street does not assume any market or investment risk of loss with
respect to the investment of cash Collateral. The Client is solely responsible
for returning the full amount of the Collateral to the Borrower upon termination
of the Loan and redelivery of the Loaned Securities.
9. Investment of Cash Collateral and Compensation.
To the extent that a Loan is secured by cash Collateral, such cash
Collateral, including money received with respect to the investment of the same,
or upon the maturity, sale, or liquidation of any such investments, shall be
invested by State Street, subject to the directions referred to above, if any,
in short-term instruments, short term investment funds maintained by State
Street, money market mutual funds and such other investments as State Street may
from time to time select, including without limitation investments in
obligations or other securities of State Street or of any State Street affiliate
and investments in any short-term investment fund, mutual fund, securities
lending trust or other collective investment fund with respect to which State
Street and/or its affiliates provide investment management or advisory, trust,
custody, transfer agency, shareholder servicing and/or other services for which
they are compensated.
The Client acknowledges that interests in such mutual funds, securities
lending trusts and other collective investment funds, to which State Street
and/or one or more of its affiliates provide services are not guaranteed or
insured by State Street or any of its affiliates or by the Federal Deposit
Insurance Corporation or any government agency. The Client hereby authorizes
State Street to purchase or sell investments of cash Collateral to or from other
accounts held by State Street or its affiliates.
The net income generated by any investment made pursuant to the
preceding paragraph of this Section 9 shall be allocated among the Borrower,
State Street, and the Client, as follows: (a) a portion of such income shall be
paid to the Borrower in accordance
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with the agreement negotiated between the Borrower and State Street; (b) the
balance, if any, shall be split between State Street, as compensation for its
services in connection with this securities lending program, and the Client and
such income shall be credited to the Client's account, in accordance with the
fee schedule attached hereto as Schedule A.
In the event the net income generated by any investment made pursuant
to the first paragraph of this Section 9 does not equal or exceed the amount due
the Borrower (the rebate fee for the use of cash Collateral) in accordance with
the agreement between Borrower and State Street, State Street and the Client
shall, in accordance with the fee split set forth on Schedule A share the amount
equal to the difference between the net income generated and the amounts to be
paid to the Borrower pursuant to the Securities Loan Agreement. The Client shall
be solely responsible for the return of the Collateral to such Borrower pursuant
to the Securities Loan Agreement and State Street may debit the Client's account
accordingly. In the event debits to the Client's account produce a deficit
therein, State Street shall sell or otherwise liquidate investments made with
cash Collateral and credit the net proceeds of such sale or liquidation to
satisfy the deficit. In the event the foregoing does not eliminate the deficit,
State Street shall have the right to charge the deficiency to any other account
or accounts maintained by the Client with State Street.
The Client acknowledges that in the event that the Client's
participation in securities lending generates income for the Client, State
Street may be required to withhold tax or may claim such tax from the Client as
is appropriate in accordance with applicable law.
The Client shall reimburse State Street for any and all funds advanced
by State Street on behalf of the Client as a consequence of the Client's
obligations hereunder, including the Client's obligation to return cash
Collateral to the Borrower and to pay any fees due the Borrower, all as provided
in Section 8 hereof.
10. Fee Disclosure.
The fees associated with the investment of cash Collateral in funds
maintained or advised by State Street are disclosed on Schedule A hereto. Said
Schedule may be replaced from time to time by State Street upon notice to the
Client. An annual report with respect to such funds is available to the Client,
at no expense, upon request.
11. Recordkeeping and Reports.
State Street will establish and maintain such records as are reasonably
necessary to account for Loans that are made and the income derived therefrom.
On a monthly basis, State Street will provide the Client with a statement
describing the Loans made, and the income derived from the Loans, during the
period covered by such statement. Each party to this Agreement shall comply with
the reasonable requests of the other for information
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necessary to the requester's performance of its duties in connection with this
securities lending program.
12. Standard of Care
Subject to the requirements of applicable law and except as provided
for in Section 8(d) hereof, State Street shall not be liable with respect to any
losses incurred by the Client in connection with this securities lending program
or under any provision hereof, except to the extent that such losses result from
the failure of State Street to exercise due care in the performance of its
duties under this Agreement.
The Client shall not be responsible for any losses, including
reasonable attorneys fees, resulting from the negligence of State Street.
State Street, in determining the Market Value of Securities, including
without limitation, Collateral, may rely upon any recognized pricing service and
shall not be liable for any errors made by such service.
13. Representations and Warranties.
Each party hereto represents and warrants that (a) it has the power to
execute and deliver this Agreement, to enter into the transactions contemplated
hereby, and to perform its obligations hereunder; (b) it has taken all necessary
action to authorize such execution, delivery, and performance; (c) this
Agreement constitutes a legal, valid, and binding obligation enforceable against
it; and (d) the execution, delivery, and performance by it of this Agreement
will at all times comply with all applicable laws and regulations.
The Client represents and warrants that (a) it has made its own
determination as to the tax treatment of any dividends, remuneration or other
funds received hereunder; and (b) the financial statements delivered to State
Street pursuant to Section 4 fairly present its financial condition and there
has been no material adverse change in its financial condition or the financial
condition of any parent company since the date of the balance sheet included
within such financial statements. Each Loan shall constitute a present
representation by the Client that there has been no material adverse change in
its financial condition or the financial condition of any parent company that
has not been disclosed in writing to State Street since the date of the most
recent financial statements furnished to State Street pursuant to Section 4.
Each party represents that the person executing this Agreement on its
behalf has the authority to execute this Agreement..
The Client hereby represents to State Street that: (i) its policies and
objectives generally permit it to engage in securities lending transactions;
(ii) its policies permit it to
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purchase shares of the State Street Navigator Securities Lending Trust with cash
Collateral; (iii) its participation in State Street's securities lending
program, including the investment of cash Collateral in the State Street
Navigator Securities Lending Trust, and the existing series thereof has been
approved by a majority of the directors or trustees which directors and trustees
are not "interested persons" within the meaning of section 2(a)(19) of the
Investment Company Act of 1940, and such directors or trustees will evaluate the
securities lending program no less frequently than annually to determine that
the investment of cash Collateral in the State Street Navigator Securities
Lending Trust, including any series thereof, is in the Client's best interest;
and (iv) its prospectus provides appropriate disclosure concerning its
securities lending activity.
The Client hereby further represents that it is not subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") with
respect to this Agreement and the Securities; that it qualifies as an
"accredited investor" within the meaning of Rule 501 of Regulation D under the
Securities Act of 1933, as amended; and that the taxpayer identification
number(s) and corresponding tax year-end are as set forth on Schedule B.
14. Indemnification.
(a) If at the time of a default by a Borrower with respect to a Loan
(within the meaning of the applicable Securities Loan Agreement) some or all of
the Loaned Securities under such Loan have not been returned by the Borrower,
and subject to the terms of this Agreement, State Street shall indemnify the
Client against the failure of the Borrower as follows. State Street shall
purchase a number of Replacement Securities equal to the number of such
unreturned Loaned Securities, to the extent that such Replacement Securities are
available on the open market. Such Replacement Securities shall be purchased by
applying the proceeds of the Collateral with respect to such Loan to the
purchase of such Replacement Securities. Subject to the Client's obligations
pursuant to Section 8 hereof, if and to the extent that such proceeds are
insufficient or the Collateral is unavailable, the purchase of such Replacement
Securities shall be made at State Street's expense.
(b) If State Street is unable to purchase Replacement Securities
pursuant to Paragraph (a) hereof, State Street shall credit to the Client's
account an amount equal to the Market Value of the unreturned Loaned Securities
for which replacement securities are not so purchased, determined as of (i) the
last day the Collateral continues to be successfully marked to market against
the unreturned Loaned Securities; or (ii) the next business day following the
day referred to in (i) above, if higher.
(c) In addition to making the purchases or credits required by
Paragraphs (a) and (b) hereof, State Street shall credit to the Client's account
the value of all distributions on the Loaned Securities (not otherwise credited
to the Client's accounts with State Street), the record dates for which occur
before the date that State Street purchases Replacement Securities pursuant to
Paragraph (a) or credits the Client's account pursuant to Paragraph (b).
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(d) Any credits required under Paragraphs (b) and (c) hereof shall be
made by application of the proceeds of the Collateral (if any) that remains
after the purchase of Replacement Securities pursuant to Paragraph (a). If and
to the extent that the Collateral is unavailable or the value of the proceeds of
the remaining Collateral is less than the value of the sum of the credits
required to be made under Paragraphs (b) and (c), such credits shall be made at
State Street's expense.
(e) If after application of Paragraphs (a) through (d) hereof,
additional Collateral remains or any previously unavailable Collateral becomes
available or any additional amounts owed by the Borrower with respect to such
Loan are received from the Borrower, State Street shall apply the proceeds of
such Collateral or such additional amounts first to reimburse itself for any
amounts expended by State Street pursuant to Paragraphs (a) through (d) above,
and then to credit to the Client's account all other amounts owed by the
Borrower to the Client with respect to such Loan under the applicable Securities
Loan Agreement.
(f) In the event that State Street is required to make any payment
and/or incur any loss or expense under this Section, State Street shall, to the
extent of such payment, loss, or expense, be subrogated to, and succeed to, all
of the rights of the Client against the Borrower under the applicable Securities
Loan Agreement.
(g) The provisions of this Section 14 shall not apply to losses
attributable to force majeure.
15. Continuing Agreement and Termination.
It is the intention of the parties hereto that this Agreement shall constitute a
continuing agreement in every respect and shall apply to each and every Loan,
whether now existing or hereafter made. The Client and State Street may each at
any time terminate this Agreement upon five (5) business days' written notice to
the other to that effect. The only effects of any such termination of this
Agreement will be that (a) following such termination, no further Loans shall be
made hereunder by State Street on behalf of the Client, and (b) State Street
shall, within a reasonable time after termination of this Agreement, terminate
any and all outstanding Loans. The provisions hereof shall continue in full
force and effect in all other respects until all Loans have been terminated and
all obligations satisfied as herein provided. State Street does not assume any
market or investment risk of loss associated with Client's change in cash
Collateral investment vehicles or termination of, or change in, its
participation in this securities lending program and the corresponding
liquidation of cash Collateral investments.
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16. Notices.
Except as otherwise specifically provided herein, notices under this
Agreement may be made orally, in writing, or by any other means mutually
acceptable to the parties. If in writing, a notice shall be sufficient if
delivered to the party entitled to receive such notices at the following
addresses:
If to Client:
The Xxxxxx Funds
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attention:
Tel.: 000 000 0000
Fax: 000 000 0000
If to State Street:
State Street Bank and Trust Company
Global Securities Lending Division
Two International Place, Floor 31
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel.: 000 000 0000
Fax: 000 000 0000
or to such other addresses as either party may furnish the other party by
written notice under this section.
Whenever this Agreement permits or requires the Client to give notice
to, direct, provide information to State Street, such notice, direction, or
information shall be provided to State Street on the Client's behalf by any
individual designated for such purpose by the Client in a written notice to
State Street. (This Agreement shall be considered such a designation of the
person executing the Agreement on the Client's behalf.) After its receipt of
such a notice of designation, and until its receipt of a notice revoking such
designation, State Street shall be fully protected in relying upon the notices,
directions, and information given by such designee.
17. Miscellaneous.
This Agreement supersedes any other agreement between the parties or
any representations made by one party to the other, whether oral or in writing,
concerning loans of securities by State Street on behalf of the Client. This
Agreement may not be assigned by State Street 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
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respective heirs, representatives, successors, and assigns. This Agreement shall
be governed and construed in accordance with the laws of the Commonwealth of
Massachusetts. The Client hereby irrevocably submits to the non-exclusive
jurisdiction of any Massachusetts state or Federal court sitting in The
Commonwealth of Massachusetts in any action or proceeding arising out of or
related to this Agreement and hereby irrevocably agrees that all claims in
respect of such action or proceeding may be heard and determined in such
Massachusetts state or Federal court except that this provision shall not
preclude any party from removing any action to Federal court. Such service may
be made by mailing or delivering a copy of such process, in care of the Process
Agent at the above address. The Client hereby irrevocably authorizes and directs
the Process Agent to accept such service on its behalf. As an alternative method
of service, the Client also irrevocably consents to the service of any and all
process in any such action or proceeding by the mailing of copies of such
process to the Client at its address specified in Section 16 hereof. The parties
agree that a final judgment in any such action or proceeding, all appeals having
been taken or the time period for such appeals having expired, shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. The provisions of this Agreement are
severable and the invalidity or unenforceability of any provision hereof shall
not affect any other provision of this Agreement. If in the construction of this
Agreement any court should deem any provision to be invalid because of scope or
duration, then such court shall forthwith reduce such scope or duration to that
which is appropriate and enforce this Agreement in its modified scope or
duration.
18. Securities Investors Protection Act of 1970 Notice.
CLIENT IS HEREBY ADVISED AND ACKNOWLEDGES THAT THE PROVISIONS OF THE
SECURITIES INVESTOR PROTECTION ACT OF 1970 MAY NOT PROTECT THE CLIENT WITH
RESPECT TO THE LOAN OF SECURITIES HEREUNDER AND THAT, THEREFORE, THE COLLATERAL
DELIVERED TO THE CLIENT MAY CONSTITUTE THE ONLY SOURCE OF SATISFACTION OF THE
BROKER'S OR DEALER'S OBLIGATION IN THE EVENT THE BROKER OR DEALER FAILS TO
RETURN THE SECURITIES.
19. Counterparts.
The 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 (1) instrument.
20. Modification.
This Agreement shall not be modified, except by an instrument in
writing signed by the parties hereto.
13
17
XXXXXX INVESTMENT PORTFOLIO TRUST,
A Delaware Business Trust, on behalf of each of the Xxxxxx Balanced Fund,
the Xxxxxx Mid Cap Growth Fund, the Xxxxxx New Generation Fund, the
Xxxxxx Select Fund, the Xxxxxx Small Company Growth Fund, and the
Xxxxxx Mid Cap Value Fund
Name:
-------------------------------
By:
---------------------------------
Title:
------------------------------
XXXXXX INSTITUTIONAL PRODUCTS TRUST,
a Delaware business trust, on behalf of the Xxxxxx
IPT Small Company Growth Fund
Name:
-------------------------------
By:
---------------------------------
Title:
------------------------------
14
18
XXXXXX/BIAM WORLDWIDE PORTFOLIOS TRUST,
a Delaware Business Trust
Name:
-------------------------------
By:
---------------------------------
Title:
------------------------------
STATE STREET BANK AND TRUST COMPANY
Name:
-------------------------------
By:
---------------------------------
Its:
--------------------------------
INVESTORS FIDUCIARY TRUST COMPANY
Name:
-------------------------------
By:
---------------------------------
Its:
--------------------------------
15
19
SCHEDULE A
SCHEDULE OF FEES
1. Subject to Paragraph 2 below, all proceeds collected by State Street on
investment of Cash Collateral or any fee income, (including any fee for holds
arrangements) shall be allocated as follows
- Sixty percent (60%) payable to the Client, and
- Forty percent (40%) payable to State Street.
2. All payments to be allocated under Paragraph 1 above shall be made after
deduction of such other amounts payable to State Street or to the Borrower under
the terms of the attached Securities Lending Authorization Agreement.
3. Investment Management Fees
The Navigator Securities Lending Prime Portfolio:
On an annualized basis, the management/trust/custody fee for investing cash
Collateral in the Navigator Securities Lending Prime Portfolio is not more than
5.00 basis points netted out of yield. The trustee may pay out of the assets of
the Portfolio all reasonable expenses and fees of the Portfolio, including
professional fees or disbursements incurred in connection with the operation of
the Portfolio.
20
SCHEDULE 8.1
ACCEPTABLE FORMS OF COLLATERAL
- Cash (U.S. and foreign currency); and
- Such other Collateral as the parties may agree to in writing
from time to time.
21
SCHEDULE B
FUND NAME TAXPAYER IDENTIFICATION NUMBER TAX YEAR-END
Xxxxxx Investment Portfolio Trust
Xxxxxx Balanced Fund
Xxxxxx Mid Cap Growth Fund
Xxxxxx New Generation Fund
Xxxxxx Select Fund
Xxxxxx Small Company Growth Fund
Xxxxxx Mid Cap Value Fund
Xxxxxx Institutional Products Trust
Xxxxxx IPT Small Company Growth Fund
Xxxxxx/BIAM Worldwide Portfolios Trust
