Exhibit (h)(16)
(XX XXXXXX LOGO)
SECURITIES LENDING AGREEMENT ("Lending Agreement"), dated as of September
__, 2005, between The Performance Funds ___________ ("Lender"), acting on behalf
of one or more of its participating portfolios (each a "Portfolio") listed on
Exhibit A (and as the same may be amended from time to time by agreement of the
parties), having its principal place of business at 0000 Xxxxxxx Xxxx, Xxxxx
0000, Xxxxxxxx, XX 00000 ____________ and JPMorgan Chase Bank, National
Association ("Lending Agent"), having a principal place of business at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
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(s)" shall mean the securities account(s) established and
maintained by Trustmark National Bank _____ ("Custodian") on behalf of
Lender (in respect of each Portfolio) pursuant to a separate agreement
("Agreement for Custody"), dated as of May 19, 1992, as
amended ____, between Custodian and Lender (on behalf of each
Portfolio), which provides, inter alia, for the safekeeping of
Securities received by Custodian from time to time on behalf of Lender
(for the relevant Portfolio).
b) "Affiliate" shall mean an entity controlling, controlled by, or under
common control with, Lending Agent.
c) "Agreement for Custody" shall have the meaning assigned in the
definition of Account.
d) "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(e) hereof and
Appendix 1 hereto (and as such Appendix may be amended from time to
time by written agreement of the parties).
e) "Authorized Person" shall mean with respect to Lender and each
Portfolio, except to the extent that Lending Agent is advised to the
contrary by Proper Instruction, any person who is authorized by Lender
to give instructions to Lending Agent pursuant to Schedule 1 hereto
and any mandates given to Lending Agent hereunder. An Authorized
Person shall continue to be so until such time as Lending Agent
receives Proper Instructions that any such person is no longer an
Authorized Person.
f) "Borrower" shall mean an entity listed on Appendix 2 hereto other than
any entity which Lending Agent shall have been instructed to delete
from such list pursuant to
Written Instructions and as such Appendix may be amended in accordance
with Section 4(b) hereof.
g) "Business Day" shall have the meaning assigned in the applicable MSLA,
including any applicable Addendum or Exhibit thereto and shall,
include, as applicable, a New York Business Day and a Foreign Business
Day.
h) "Cash Collateral" shall mean fed funds and such U.S. and non-U.S.
currencies as may be pledged by a Borrower in connection with a
particular Loan.
i) "Collateral" shall mean the types of collateral acceptable to Lender
(and each Portfolio as communicated by Lender to Lending Agent.
j) "Collateral Account" shall mean, as the case may be, the accounts
maintained by Lending Agent 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 each Portfolio's Collateral,
Authorized Investments, and Proceeds in connection with Loans
hereunder.
k) "Collateral Amount" shall have the meaning assigned in Section 5(c)
hereof.
l) "Collateral Requirement" shall have the meaning assigned in Section
5(c) hereof.
m) "Custodian" shall have the meaning assigned in Section 1(a) hereof.
n) "Depository" shall mean: (i) The Depository 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 central handling of that country's
government securities.
o) "Distributions" shall have the meaning assigned in Section 3(b)(v)
hereof.
p) "Dollars" shall have the meaning assigned in Section 5(c) hereof.
q) "Event of Default" shall have the meaning assigned in Section 5(f)(i)
hereof.
r) "Letter of Credit", to the extent acceptable to Lender and each
Portfolio as Collateral in accordance with Appendix 3 hereto, shall
have the meaning assigned thereto in the applicable MSLA and be issued
by a bank listed on Appendix 4 hereto (as such list may be amended by
Lending Agent from time to time on notice to Lender to add one or more
banks), other than a bank deleted from such list pursuant to Written
Instruction or by Lending Agent.
s) "Loan" shall mean a loan of Securities hereunder and under the
applicable MSLA.
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t) "Loan Fee" shall mean the amount payable by a Borrower to Lending
Agent pursuant to the applicable MSLA in connection with Loans
collateralized other than by Cash Collateral.
u) "Losses" shall have the meaning assigned in Section 7(a)(i) hereof.
v) "Market Value" shall have the meaning assigned in Section 7(c)(iii)
hereof.
w) "MSLA" shall mean a master securities lending agreement or securities
borrowing agreement between Lending Agent and a Borrower, pursuant to
which Lending Agent lends securities on behalf of its customers
(including Lender acting on behalf of the Portfolios) from time to
time. A copy of Lending Agent's standard forms of MSLA, including (as
applicable) the international addendum thereto, are annexed (i) as
Appendix 5A in the case of borrowers located in the United States, and
(ii) as Appendix 5B in the case of borrowers located outside the
United States. (The location of each Borrower is indicated in Appendix
2.)
x) "Non-U.S. Securities" shall mean Securities other than "U.S.
Securities" as defined below, and shall include Global Depositary
Receipts.
y) "Operating Agreement" shall have the meaning assigned in Section 2(b)
hereof.
z) "Oral Instructions" shall have the meaning assigned in Section 10
hereof.
aa) "Proceeds" shall mean interest, dividends and other payments and
Distributions received by Lending Agent in connection with Authorized
Investments.
bb) "Proper Instructions" shall mean Oral Instructions and Written
Instructions.
cc) "Rebate" shall mean the amount payable by Lending Agent on behalf of
Lender in respect of the relevant Portfolio to a Borrower in
connection with such Portfolio's Loans collateralized by Cash
Collateral, which shall be a percentage of the Cash Collateral as
agreed by the Borrower and Lending Agent.
dd) "Return Date" shall have the meaning assigned in Section 7(c)(i)
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 for Custody.
ff) "Term Loan" shall have the meaning assigned in Section 5(h) hereof.
gg) "Triparty Institution" shall mean a financial institution with which
Lending Agent 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 Lending Agent's name on behalf
of Lending Agent's lending customers and for the substitution of
Collateral; provided,
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however, that any substituted Collateral shall meet the then standards
for acceptable Collateral set by Lending Agent.
hh) "U.S. Government Securities" shall mean book-entry securities issued
by the U.S. Treasury (as 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 Macs".
ii) "U.S. Securities" shall mean Securities issued by an issuer that is
organized under the laws of the United States or any State thereof or
that are otherwise traded in the United States, and shall include
American Depositary Receipts.
jj) "Written Instructions" shall have the meaning assigned in Section 10
hereof.
Section 2 - Appointment. Authority
(a) Appointment. Lender hereby appoints Lending Agent as its agent to lend
Securities in the Accounts on Lender's (in respect of the Portfolios) 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 Lending Agent
shall determine and Lending Agent may exercise all rights and powers provided
under any MSLA as may be incidental thereto, and Lending Agent hereby accepts
appointment as such agent and agrees to so act.
(b) Direction to Custodian. In connection with the appointment of Lending
Agent, Lender hereby agrees that it shall direct Custodian, whether pursuant to
the operating agreement which Lender (on its behalf and on behalf of the
Portfolios), Lending Agent and Custodian shall execute on or after the date
hereof ("Operating Agreement") or otherwise to: (1) provide Lending Agent with a
report of Securities that are available for Loan and such other reports as
Lending Agent may reasonably request from time to time in connection with the
performance of its duties hereunder ; (2) provide Lending Agent with any
password or software reasonably necessary for the delivery of such report and
other information that may be reasonably necessary for Lending Agent to perform
hereunder and under the Operating Agreement; and (3) accept the direction of
Lending Agent with respect to those matters to be performed by Lending Agent
under this Lending Agreement and the Operating Agreement that require the
action/cooperation of Custodian; and (iv) afford to Lending Agent such rights
with respect to the Accounts (including but not limited to granting to Lending
Agent a power of attorney or such other document to authorize Lending Agent to
issue instructions with respect to such Accounts) as Lending Agent may
reasonably require to perform hereunder. In respect of the foregoing, Lending
Agent shall only transfer Securities to and from the Accounts in accordance with
the terms hereof.
(c) In the event of any conflict or inconsistency between the Operating
Agreement and the terms of this Lending Agreement, as between Lender and Lending
Agent this Lending Agreement shall govern.
(d) When giving lending Instructions to Custodian, Lending Agent shall use
reasonable efforts to adhere to the transaction cut off times as set out in the
Operating Agreement.
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(e) Authority; Conflicts of Interest. Lender on behalf of itself and each
Portfolio hereby authorizes and empowers Lending Agent to execute in Lender's
name and 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 Lending Agent and, in
that regard, Lender shall direct Custodian to afford such reasonable cooperation
to Lending Agent as Lending Agent may request. Lender on behalf of itself and
each Portfolio grants Lending Agent the authority set forth herein
notwithstanding its awareness that Lending Agent: (1) in its individual capacity
or acting in a fiduciary capacity for other accounts, may have transactions with
the same institutions to which Lending Agent may be lending Securities
hereunder, which transactions may give rise to actual or potential conflict of
interest situations; and (2) may use EquiLend, a securities lending platform in
which Lending Agent has an equity interest (and therefore a financial interest
in its success), to transact certain Loans with Borrowers that are EquiLend
participants (it being understood that EquiLend will neither act as principal
in, nor guarantee, any such Loan). Lending Agent shall not be bound to: (i)
account to Lender or any Portfolio for any sum received or profit made by
Lending Agent 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 Lending Agent's judgment, made in good faith, constitute
a breach of any law or regulation or be otherwise actionable with respect to
Lending Agent; provided that, in circumstances mentioned in (ii) above, Lending
Agent shall promptly inform Lender (on behalf of the relevant Portfolio) of the
relevant facts (except where doing so would, or might in Lending Agent's
judgment, made in good faith, constitute a breach of any law or regulation or be
otherwise actionable as aforesaid).
Section 3 - Representations 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 Lending
Agent 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; (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; (v) it is entitled to
receive all interest, dividends and other distributions (including, but not
limited to, payments made by the depositary in connection with American
Depositary Receipts and Global Depositary Receipts ) ("Distributions") made by
the issuer with respect thereto; (vi) it is a "qualified investor" within the
meaning of Section 3(a)(54) of the Securities Exchange Act of 1934, as amended;
and (vii) it has the authority to bind each Portfolio to the obligations assumed
by Lender on behalf of each Portfolio hereunder and under each MSLA. Lender
shall promptly identify to Lending Agent by notice, which notice may be oral,
any Securities that are no longer subject to the representations contained in
(b).
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(c) Representations of Lender in respect of the MSLAs. Lender further
represents and warrants to Lending Agent on behalf of itself and each Portfolio
that the representations and warranties to be given by Lending Agent on Lender's
behalf as set out in the MSLAs are true and will continue to be true at all
times until termination of Lending Agent's authority to act as Lender's agent as
provided in this Lending Agreement.
Section 4 - Borrowers
(a) MSLA. Lender (on its behalf and on behalf of the Portfolios) hereby
acknowledges receipt of the forms of MSLA and authorizes Lending Agent to lend
Securities in the Account to Borrowers thereunder pursuant to an agreement
substantially in the form thereof; it being understood and agreed, however, that
Lending Agent may modify the MSLA without Lender's consent to comply with law or
regulation.
(b) Borrowers. Securities may be lent to any Borrower listed in Appendix 2,
as such Appendix may be updated from time to time to add new Borrowers and to
delete entities that have ceased to be potential Borrowers. Lending Agent shall
provide Lender with notice of each addition of a Borrower to such list. If
Lender (on behalf of one or more Portfolios) does not notify Lending Agent in
writing , no Loans of Securities shall be made to such potential Borrower on
behalf of such Portfolio(s). .
Section 5 - Loans
(a) Securities to be lent. Lending opportunities. Loan initiation. All
Securities of each Portfolio held by Lending Agent that are issued, settled or
traded in the markets that have been approved by Lending Agent from time to time
for purposes of Lending Agent's discretionary securities lending program shall
be subject to the terms hereof. Lending Agent shall seek to assure that each
Portfolio receives a fair allocation of lending opportunities vis-a-vis other
lenders (which for purposes hereof shall include other Portfolios hereunder),
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,
Lending Agent may lend to Borrowers Securities held in the Account (except
Securities that Lender, on behalf of one or more Portfolios, has notified to
Lending Agent are unavailable or 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. Lending
Agent 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 or any Portfolio. With respect to Loans of U.S. Securities, at the
inception of a Loan Lending Agent shall advise Custodian of the Loan, accept
delivery of such Securities from Custodian and then transmit the same to
Borrower. With respect to Loans of non-U.S. Securities, Lending Agent shall
instruct Custodian to deliver the same directly to the Borrower thereof or, with
respect to certain types of non-U.S. Securities as the same shall be identified
in writing by Lending Agent to Lender and Custodian from time to time, instruct
Custodian to make such other arrangements as the parties may agree in writing
from time to time.
(b) Receipt of Collateral. Collateral substitution. For each Loan, Lending
Agent shall receive and hold Letters of Credit received as Collateral and
Lending Agent or a Triparty Institution shall receive and hold all other
Collateral for the relevant Portfolio required by the
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applicable MSLA in a Collateral Account, and Lending Agent is hereby authorized
and directed, without obtaining any further approval from Lender (or any
Portfolio), to invest and reinvest all or substantially all Cash Collateral. A
given Loan may be collateralized by more than one type of Collateral. Lending
Agent shall credit, or where applicable shall have a Triparty Institution
credit, all Collateral, Authorized Investments and Proceeds to a Collateral
Account for the relevant Portfolio and Lending Agent shall xxxx its books and
records to identify the relevant Portfolio'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 Lending Agent may act. Lending Agent may, in its
sole discretion, liquidate any Authorized Investment and credit the net proceeds
to a Collateral Account. Lending Agent 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 for the relevant Portfolio. With respect to non-U.S. Securities: (a) at
the inception of a Loan, Lending Agent shall advise Custodian of Lending Agent's
receipt of the applicable Collateral (which advice shall authorize Custodian to
deliver the Securities to be lent to the Borrower); provided that, with respect
to non-U.S. Securities, if any, as to which Custodian receives Collateral
directly, no such notice from Lending Agent need be given.
(c) Xxxx to market procedures. (i) Lending Agent shall require initial
Collateral for a Loan in an amount determined by applying the then applicable
"Collateral Requirement" (as defined below) to the Market Value of the Security
that is the subject of the Loan together with, in the case of fixed income
Securities, any accrued but unpaid interest thereon. The "Collateral
Requirement" with respect to a given Security shall be an amount equal to the
then applicable percentage (currently 102% where securities and the collateral
therefor are denominated in the same currency, and 105% for all other
securities) of the Market Value of the Security which is the subject of a Loan
as determined as of the close of trading on the preceding Business Day.
(ii)(A) With respect to each Loan of Securities denominated in U.S. dollars
("Dollars") or where the Securities on Loan and the Collateral therefore are
denominated in the same currency if, and only if, the Market Value of the
Collateral held by Lending Agent on behalf of (in respect of the relevant
Portfolio) Lender for such Loan on any Business Day is less than the Market
Value of the Securities which are the subject of such Loan (together with
accrued but unpaid interest in the case of fixed income Securities), Lending
Agent shall demand on behalf of Lender (in respect of the relevant
Portfolio)that the Borrower, deliver additional Collateral in accordance with
the applicable MSLA. Such additional Collateral demanded, together with the
Collateral then held by Lending Agent on behalf of Lender (in respect of the
relevant Portfolio)for such Loan, shall be not less than the applicable
Collateral Requirement. (B) With respect to all other loans of Securities (i.e.
where the Security on Loan and the Collateral are in different currencies), if,
and only if, the Market Value of the Collateral held in the aggregate for all
Loans of a given Security to a given Borrower from all lenders (including
Lender) falls below the aggregate amount ("Collateral Amount") determined by
applying the applicable Collateral Requirement to all Loans of such Security
(together with accrued but unpaid interest in the case of fixed income
Securities), then Lending Agent shall demand on behalf of Lender (in respect of
the relevant Portfolio)that Borrower deliver additional Collateral in accordance
with the applicable MSLA so as to meet the Collateral Amount. In respect of
these Sections 5(c)(ii)(A) and (B), additional Collateral shall not be demanded
to the extent that a Collateral shortfall is on account of a diminution in the
Market Value of Authorized Investments.
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(iii) Where market convention does not permit marking to at least the
amounts indicated above, the foregoing procedures shall to that extent not apply
and marking shall be in accordance with such convention. As of the date hereof,
the only conventions requiring such a deviation are that: (x) with respect to
Securities such as U.S. Treasury strips and bills, where the market functions so
as to not allow for the sale of such Securities at greater than par, the
Collateral Requirement shall equal the lesser of 100% of the par value of the
Security or 102% of its Market Value; and (y) the Collateral Requirement for
Loans of Japanese Government Securities made against Yen-denominated Collateral
is 100%. Lending Agent shall advise Lender of any other such deviations. 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.
(iv) Lending Agent may from time to time establish de minimis guidelines
with respect to Collateral pursuant to which a xxxx would not be made even where
otherwise required hereunder.
(v) At the termination of a Loan of non-U.S. Securities, Lending Agent
shall not release Collateral back to the Borrower until after having been
notified by Custodian that the Securities on Loan have been returned; provided
that, with respect to non-U.S. Securities, if any, as to which Lending Agent
receives the Securities on Loan directly, no such notice by Custodian need be
given.
(d) Changes in procedures applicable to Collateral. The Collateral
procedures set forth in Sections 5(b)-(c) above reflect Lending Agent's current
practice and may be changed by Lending Agent 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. Lending
Agent shall notify Lender of material revisions to the foregoing procedures.
(e) Investment of Cash Collateral. (i) Lending Agent is hereby authorized
to invest and reinvest Cash Collateral in accordance with the investment
guidelines annexed hereto as Appendix 1. (ii) Authorized Investments are made
for the account of, and at the sole risk of, the lending Portfolio. In that
connection, Lender, on behalf of the lending Portfolio, shall pay to Lending
Agent on demand in cash an amount equal to any deficiency in the amount of
Collateral available for return to a Borrower pursuant to the applicable MSLA.
Lending Agent is authorized to select brokers and dealers for the execution of
trades in connection with the investment and reinvestment of Cash Collateral,
which broker or dealer may be an Affiliate of Lending Agent provided that a
competitive execution price is obtained.
(f) Distributions and Voting Rights.
(i) Lending Agent shall pay to Custodian on payable date for the benefit of
the relevant Portfolio the amount of all cash Distributions (but for purposes of
this Section 5(f) and of Section 7(b) hereof, the term "cash Distributions"
shall not include any principal payment, whether paid upon the maturity of any
debt Security or prior to its maturity) with respect to Securities on Loan over
their record date that the relevant Portfolio would have received if such
Securities had been held by Lending Agent under the custodial agreement between
Lender and Lending Agent (acting as custodian), dated August __, 2005 had such
Securities not been on Loan over record date; provided, that with respect to
Non-U.S. Securities, Lending Agent's obligation to credit the Account shall
extend only to record dates (and Distributions made during the period of the
relevant Loan) up to and including the date of any "Event of Default" (as
defined
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in the applicable MSLA). To the extent that cash Distributions are not delivered
to Lending Agent by Borrower and Lending Agent has so credited the Account with
such Distributions, Lending Agent shall be subrogated to the relevant
Portfolio's rights against Borrower as provided in Section 7(d). In connection
with the foregoing, Lender, on behalf of the relevant Portfolio, shall promptly
return any amount so credited upon oral or written notification from Lending
Agent that such amount: (a) has not been paid by the issuer of the Securities or
the paying agent therefore (as applicable) in the ordinary course of business,
(b) was incorrectly credited or (c) was not received from Custodian (in those
cases, if any, where the same was to be received by Lending Agent from
Custodian). If Lender, on behalf of the relevant Portfolio, does not promptly
return any amount upon such notification, Lending Agent shall be entitled, upon
oral or written notification to Lender of the amount in question, to instruct
Custodian to debit any such amount from the affected Account(s) and remit the
same to Lending Agent and Lender hereby agrees that it shall, promptly upon the
execution of this Lending Agreement, issue a standing instruction to Custodian
to accept any such duly authorized instructions from Lending Agent. In the event
that Custodian fails to so deliver any such amount, until such time as Lending
Agent has recovered the full amount of the same, Lending Agent (regardless of
anything that may be provided to the contrary in Section 8 hereof) shall have
the right to retain a fee equal to 100% of the earnings and Loan Fees on Loans
made by the affected Account(s) as an offset against such amounts.
(ii) (A) Any non-cash Distribution which is in the nature of a stock split
or a stock dividend shall be added to the existing Loan to which such dividend
relates as of the date such non-cash Distribution is payable and shall be
subject to the provisions hereof and the applicable MSLA. (B) Any non-cash
Distribution which is in the nature of warrants or rights to purchase shares
made with respect to any Securities on Loan shall be deemed to be a new Loan
made by Lender, on behalf of the relevant Portfolio, to Borrower (and shall be
considered to constitute Securities on Loan) as of the date such non-cash
Distribution is payable and shall be subject to the provisions hereof; provided
that Lender, on behalf of such Portfolio, may, by giving Lending Agent ten (10)
Business Days' notice prior to the date of such non-cash Distribution (or such
different amount of time as Lending Agent may from time to time require on
advice to Lender), direct Lending Agent to request that the Borrower deliver
such non-cash Distribution to Lending Agent pursuant to the applicable MSLA, in
which case Lending Agent shall forward such non-cash Distribution to Custodian
for credit to the relevant Portfolio's Account. (C) If, despite (A) and (B)
Lender requests that Lending Agent instruct the Borrower to deliver a non-cash
Distribution on its payable date, and Borrower fails so to deliver the non-cash
Distribution, the indemnity provisions and corresponding subrogation rights set
forth in Section 7 shall apply. Instructions with respect to voluntary corporate
actions on Securities on Loan shall be handled as set forth in the Operating
Agreement. In connection with the foregoing, it is understood and agreed that
Lender shall instruct Custodian to pay to Lending Agent sufficient subscription
funds in relation to corporate action events instructed by Lender (as and when
needed) and that where such funds are received after the applicable Lending
Agent cut-off time, Lending Agent shall use reasonable efforts to subscribe on
Lender's behalf, but shall have no obligation to advance funds for such purpose.
If, notwithstanding such reasonable efforts Lending Agent is unable to subscribe
on Lender's behalf, Lending Agent shall promptly return the subscription funds
to Custodian for the Lender's account.
(iii) During the term of any Loan, Lending Agent shall permit the
Securities on Loan to be transferred into the name of and be voted by the
Borrower or others. A lending Portfolio shall not be entitled to participate in
any dividend reinvestment program with respect to Securities that are
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eligible for Loan (whether or not actually on Loan) as of the applicable record
date for such Securities.
(g) Advances, overdrafts and indebtedness. Security Interest. Lending Agent
may, in its sole discretion, advance funds on behalf of a Portfolio 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, on behalf of the
relevant Portfolio, shall repay Lending Agent on demand the amount of any
advance or any other amount owed by such Portfolio hereunder. Any such advance
shall bear interest at the rate customarily charged by Lending Agent for such
advances at the time such advance is made. In order to secure repayment of any
advance or other indebtedness of a Portfolio to Lending Agent arising hereunder,
Lending Agent shall have a continuing lien and security interest in and to all
assets now or hereafter held in the relevant Portfolio's Account (and Lender and
the relevant Portfolio shall take such steps as Lending Agent may require to
perfect such interest, including directing Custodian to enter into an account
control agreement in favor of Lending Agent) and any Collateral Account (to
which Lender, on behalf of the relevant Portfolio, is entitled hereunder) and
any other property at any time held by it for the benefit of Lender, on behalf
of the relevant Portfolio, or in which Lender, on behalf of the relevant
Portfolio, may have an interest which is then in Lending Agent's possession or
control or in the possession or control of any third party acting on Lending
Agent's behalf. In this regard, Lending Agent 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.
(h) Termination of a Loan. (i) Loans shall generally be terminable on
demand. With the prior approval of Lender, , on behalf of the relevant
Portfolio, 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, on behalf of the relevant
Portfolio, or Borrower may result in the terminating party having to pay the
non-terminating party damages based on the cost of obtaining a replacement loan.
(ii) Lending Agent shall terminate any Loan of Securities to a Borrower as soon
as practicable after: (A) receipt by Lending Agent of a notice of termination of
the respective MSLA; (B) receipt by Lending Agent of Written Instructions
directing it to terminate a Loan; (C) receipt by Lending Agent of Written
Instructions instructing it to delete from Appendix 2 the Borrower to which such
Loan was made; (D) receipt by Lending Agent of Written Instructions advising
that the Security subject to a Loan is no longer subject to the representations
contained in Section 3 hereof; (E) receipt by Lending Agent of notice advising
that an Event of Default has occurred and is continuing beyond any applicable
grace period; (F) whenever Lending Agent, in its sole discretion, elects to
terminate such Loan other than a Term Loan; or (G) termination hereof. (iii)
Lender, on behalf of the relevant Portfolio, acknowledges that: (1) termination
hereof may result in the termination of certain Authorized Investments prior to
their maturity which, in turn, may result in losses being realized in such
Authorized Investments; and (2) any such losses shall be for the account and
sole risk of the relevant Portfolio. (iv) ) In regard to a Loan being
terminated, Lending Agent shall instruct the Borrower to return U.S. Securities
to Lending Agent, and Lending Agent shall then deliver such Securities to
Custodian. With respect to non-U.S, Securities, Lending Agent shall instruct the
Borrower to return the same directly to Custodian; provided that, with respect
to certain types of non-U.S. Securities as the same shall be identified by
Lending Agent to Lender, on behalf of the relevant Portfolio, from time to time
in writing, Lending Agent shall instruct the Borrower to deliver such Securities
in accordance with Lending Agent's instructions.
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(i) Sale of a Security on Loan. Lender, on behalf of the relevant
Portfolio, shall advise Lending Agent of the sale of Securities on Loan no later
than the sale date or such earlier date as may be specified in the Operating
Agreement. Lending Agent shall not be liable for any failures occurring on a
settlement date for sale of Securities if timely notice is not given by Lender
as provided in the preceding sentence, and shall not be liable in any event
(except as provided in Section 7) for failure of a Borrower to return Securities
on Loan in a timely fashion.
(j) Recordkeeping and Reports. Lending Agent shall establish and maintain
such records as are reasonably necessary to account for Loans that are made and
the income derived therefrom. Lending Agent shall provide Lender, on behalf of
the relevant Portfolio, with a monthly statement describing the Loans made
during the preceding month, the investments made with cash collateral, and the
income derived from Loans, during the period covered by such statement. (In
connection with the foregoing, Securities constituting Authorized Investments
shall be valued based on their amortized cost.) A party shall comply with
reasonable requests of the other party for information necessary to the
requester's performance of its duties hereunder .Lending Agent shall provide
Lender or Custodian,,on behalf of the relevant Portfolio, daily loan information
including assets lent and such other information as Lender shall reasonably
request.
Section 6 - Default by Borrower
(i) Lending Agent 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 has
occurred and that a Borrower has complied with its obligations under the
applicable MSLA. Subject to Sections 5(f)(i)-(ii) and 7(b)-(c) hereof, Lending
Agent shall have no responsibility for any breach of any obligation by any
Borrower under or in connection with any MSLA or Loan. Lending Agent shall have
no responsibility for the accuracy or completeness of any information supplied
by any Borrower. Lending Agent shall not be liable as a result of taking or
omitting to take any action, provided that Lending Agent shall have carried out
its responsibilities hereunder in good faith. (ii) If any Borrower with respect
to any Loan effected pursuant hereto and pursuant to the applicable MSLA fails
to return any Securities on Loan when due thereunder for reasons other than
relating to the solvency of the Borrower, Lending Agent shall take whatever
action it deems appropriate in accordance with general market practice and
Lending Agent's reasonable judgment, including, but not necessarily limited to,
claiming compensation from such Borrower on behalf of Lender (and the relevant
Portfolio) in the event a trade, on behalf of the relevant Portfolio, executed
by Lender fails on account of such Borrower's failure timely to have returned
Securities on Loan or, where Lending Agent deems it necessary, such other action
as may be permitted by the applicable MSLA. (iii) If any Borrower with respect
to any Loan effected pursuant hereto and pursuant to the applicable MSLA fails
to return any Securities on Loan when due thereunder for reasons relating to the
solvency of the Borrower, Lending Agent shall then, in addition to taking
whatever action may be required by Section 7(c) hereof, take such action as its
deems appropriate in accordance with Lending Agent's reasonable judgment under
the applicable MSLA.
Section 7 - Liabilities. Indemnification
(a) Liabilities. (i) Except as provided in Sections 5(f)(i)-(ii) and
7(b)-(c) hereof, Lending Agent shall not be liable for any costs, expenses,
damages, losses, liabilities or claims (including attorneys' and accountants'
fees) (collectively "Losses") incurred by Lender and any Portfolio, except those
costs, expenses, damages, liabilities and claims arising out of the negligence,
bad faith
11
or willful misconduct of Lending Agent. Lending Agent shall have no obligation
hereunder for Losses which are sustained or incurred by Lender or any Portfolio
by reason of any action or inaction by any pricing service, any Depository or a
Triparty Institution or their respective successors or nominees. In no event
shall Lending Agent be liable for indirect or consequential Losses (including,
but not limited to, lost profits and 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.
(ii) Except for any costs or expenses incurred by Lending Agent in
performing its obligations pursuant to Sections 5(f)(i)-(ii) and 7(b)-(c) hereof
and ordinary operating expenses incurred by Lending Agent in providing services
hereunder, Lender shall indemnify Lending Agent and hold it harmless from and
against any and all Losses which Lending Agent may sustain or incur or which may
be asserted against Lending Agent by reason of or as a result of any action
taken or omitted by Lending Agent in connection with operating hereunder or
under the Operating Agreement or in enforcing Lender's (or a relevant
Portfolio's) rights under the applicable MSLA, other than those Losses arising
out of the negligence, bad faith or willful misconduct of Lending Agent. The
foregoing indemnity shall be a continuing obligation of Lender and the relevant
Portfolio, its successors and assigns, notwithstanding the termination of any
Loans hereunder or of this Lending Agreement. Lending Agent may issue debit
instructions against the relevant Portfolio's Account for any amounts to which
it is entitled hereunder, and Lender (on behalf of the relevant Portfolio) shall
instruct Custodian to accept any such instructions. Lender (on behalf of the
relevant Portfolio) shall be entitled to an accounting of all amounts so
debited. 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 Lending Agent,
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.
(iii) Lending Agent shall be entitled to rely on, and may act upon, the
advice of reputable professional advisers in relation to matters of law,
regulation or market practice (which may be professional advisers of Lender or a
Portfolio) and that relate to the provision of securities lending services, and
shall not be liable to Lender or any Portfolio for any action taken or omitted
pursuant to such advice.
(iv) Lending Agent shall have no liability for Losses that Lender or any
Portfolio may suffer or incur, caused by an act of God, fire, flood, civil
disturbance, war, terrorism, act of any governmental authority or other act or
threat of any authority (de jure or de facto), legal constraint, malfunction of
equipment or software (except to the extent such malfunction is primarily
attributable to Lending Agent's negligence in maintaining the equipment or
software), failure of or the effect of rules or operations of any external funds
transfer system, inability to obtain or interruption of external communications
facilities, inability to access collateral held at a Tri-Party Institution or
Depository or any cause beyond the reasonable control of Lending Agent.
(v) Notwithstanding anything in this Lending Agreement that may be to the
contrary, any amount or obligation owed by Lender under this Lending Agreement
or otherwise with respect to any Loan hereunder or otherwise shall only be paid
out of the assets of the particular Portfolio making such Loan.
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(b) Indemnification of the relevant Portfolio in respect of Distributions.
If the Borrower in respect of any Loan effected pursuant hereto and pursuant to
the applicable MSLA fails to deliver any non-cash Distributions with respect to
Securities on Loan as and when requested to do so by Lending Agent as provided
in Section 5(f)(ii)(C) hereof, Lending Agent shall with respect to: (x) U.S.
Securities at its option, credit such non-cash Distribution or an amount
equivalent thereto to the relevant Portfolio's Account on the date it is due,
and (y) Non-U.S. Securities, for any non-cash Distributions made during the
period of the relevant Loan (up to and including the date of any Event of
Default) or for any non-cash Distributions for which the record date occurs on
or before the date of any Event of Default, Lending Agent shall, at its option,
either (i) purchase for the relevant Portfolio's Account replacement securities
(of an equal amount of the same issue, class, type or series as the
Distribution) on the principal market in which such securities are traded or
(ii) credit the Account with the Market Value in Dollars of such Distributions
on the due date as determined by Lending Agent in good faith. The foregoing
shall, subject to Sections 7(c)(iii) and 7(d) hereof, be at Lending Agent's
expense.
(c) Indemnification of the relevant Portfolio in respect of Securities.
(i) U.S. Securities. If the Borrower in respect of any Loan of U.S.
Securities effected pursuant hereto and pursuant to the applicable MSLA fails to
return any Securities on Loan to Lending Agent for the relevant Portfolio's
Account when due thereunder, which is the date an Event of Default shall have
occurred under the applicable MSLA (the "Return Date"), then Lending Agent
shall, at its expense, but subject to Sections 7(c)(iii) and 7(d) hereof,
deposit replacement Securities of the same issue, type, class and series to the
relevant Portfolio's Account, as soon as practicable. If Lending Agent is unable
to obtain replacement Securities, Lending Agent shall, at its expense, but
subject to Sections 7(c)(iii), 7(d) and 11 hereof, credit the relevant
Portfolio's Account in Dollars with the Market Value of such Securities on Loan
on the credit date.
(ii) Non-U.S. Securities. If the Borrower in respect of any Loan of
Non-U.S. Securities effected pursuant hereto and pursuant to the applicable MSLA
fails to return any such Securities on Loan to Lending Agent for the relevant
Portfolio's Account on the Return Date, Lending Agent shall, at Lending Agent's
sole election and at its expense, but subject to Sections 7(c)(iii), 7(d) and 11
hereof and to Lending Agent not being responsible to compensate the relevant
Portfolio (or Lender) for any increase in the Market Value of such Non-U.S.
Securities after the Return Date, as soon as practicable, either (x) deposit
replacement Securities of the same issue, type, class and series to the relevant
Portfolio's Account as the Securities on Loan up to the Market Value of such
Securities determined as of the Return Date or (y) credit the relevant
Portfolio's Account, in Dollars, with the Market Value of the Securities on Loan
determined as of the Return Date.
(iii) Market Value; Loss in Value of Cash Collateral Investments and
Letters of Credit. In connection with Sections 7(b) and 7(c)(i)-(ii) above,
"Market Value" shall: (y) be determined by Lending Agent 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; and (z) in the case of fixed income Securities,
include any accrued but unpaid interest thereon. If the Market Value of
Authorized Investments on a credit date or a Return Date is less than that which
is required to purchase replacement securities (and non-cash Distributions) or
to credit the relevant Portfolio's Account with the Market Value in Dollars of
the Securities on Loan (and non-cash Distributions) as a result of a decrease in
the Market Value of such Authorized Investments, Lending Agent shall not be
responsible for that decrease and shall deposit replacement securities or credit
the relevant Portfolio's Account, with the Market Value of
13
such Securities on Loan only to an amount net of the decrease in Market Value of
Authorized Investments. With respect to and to the extent that a Loan is made
against Letter of Credit Collateral, in the event of a default by both the
issuer of the Letter of Credit and the Borrower, Lending Agent shall not be
responsible for any resulting decrease in the Market Value of such Letter of
Credit Collateral or have any obligation to either contribute to or otherwise
provide for any resulting Collateral deficiency.
(d) Subrogation. If Lending Agent makes a payment or a purchase pursuant to
Sections 5(f), 7(b) or 7(c) Lending Agent shall, to the extent of such payment
or purchase, be subrogated to, and Lender shall assign and be deemed to have
assigned to Lending Agent, 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 (including any Letters of Credit and the
issuers thereof), and all proceeds of such Collateral. In the event that Lender
or a relevant Portfolio receives or is credited with any payment, benefit or
value from or on behalf of the Borrower in respect of rights to which Lending
Agent is subrogated as provided herein, Lender, on behalf of the relevant
Portfolio, shall promptly remit or pay to Lending Agent the same (or its Dollar
equivalent).
Section 8 - Lending Agent Compensation.
(i) In connection with each Loan hereunder, Lender for itself and on behalf
of each Portfolio hereby authorizes Lending Agent to retain a fee equal to: (A)
30% of earnings (less any Rebate paid by Lending Agent to a Borrower) derived
from Authorized Investments in connection with each Portfolio's Loans of U.S.
Securities collateralized by cash; (B) 30% of earnings (less any Rebate paid by
Lending Agent to a Borrower) derived from Authorized Investments in connection
with each Portfolio's Loans of Non-U.S. Securities collateralized by cash; (C)
30% of any Loan Fee paid or payable by the Borrower in connection with each
Portfolio's Loans of U.S. Securities not collateralized by cash; and (D) 30% of
any Loan Fee paid or payable by the Borrower in connection with each Portfolio's
Loans of Non-U.S. Securities not collateralized by cash. (ii) The fee payable to
Lending Agent for services performed pursuant to Section 5(e) hereof shall be
equal to 0% of the amount of the Cash Collateral used to make outstanding
Authorized Investments. Fees shall be accrued or charged daily, as appropriate,
and shall be payable monthly in arrears. (iii) Lending Agent may retain its
share of earnings under Section 8(i) and its earnings under 8(ii) hereof and
shall credit Lender, on behalf of the relevant Portfolio, monthly with the
Portfolio's share of earnings under Section 8(i). Lending Agent may charge
reasonable expenses incurred by Lending Agent hereunder and any other amounts
owed by Lender for itself and on behalf of the relevant Portfolio hereunder
against the relevant Portfolio's Account and/or a Collateral Account.
Section 9 - Taxes
(a) Tax Filings. Lender shall be responsible for all filings, tax returns
and reports on any Loans undertaken by Lending Agent 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 limitation, any value
added tax), imposts, levies or duties due on any principal or interest, or any
other liability or payment arising out of or in connection with any Securities
or any Collateral, and insofar as Lending Agent is under any obligation (whether
of a governmental nature or otherwise) to pay the same on Lender's behalf,
Lender shall instruct Custodian to deliver to Lending Agent sufficient funds in
order for Lending Agent to do so and shall indemnify and hold
14
harmless Lending Agent for any such amounts paid by Lending Agent and as to
which Custodian fails to make such delivery.
(b) Tax Treatment. Lender acknowledges that: (i) the tax treatment of the
payments made by a Borrower to Lender in lieu of Distributions (including, by
way of illustration and not of limitation, with respect to any dividends
received deduction and amounts paid by the depositary on American Depositary
Receipts and Global Depositary Receipts) may differ from the tax treatment of
the Distribution to which such payments relate; and (ii) it has made its own
determination as to the tax treatment of any Loan made pursuant hereto, of any
in lieu of payments made by a Borrower and of any remuneration and any other
amounts that may be received by it hereunder.
Section 10 - Instructions
(a)(i) Written Instructions. "Written Instructions" shall mean written
communications actually received by Lending Agent from an Authorized Person or
from a person reasonably believed by Lending Agent 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 Lending Agent and whereby Lending Agent is able to verify with a
reasonable degree of certainty the identity of the sender of such communications
or which communications are transmitted with proper testing or authentication
pursuant to terms and conditions which Lending Agent may specify. (ii) Oral
Instructions. "Oral Instructions" shall mean oral communications actually
received by Lending Agent from an Authorized Person or from a person reasonably
believed by Lending Agent 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 shall
hold Lending Agent harmless for the failure of an Authorized Person to send such
confirmation in writing or the failure of such confirmation to conform to the
Oral Instructions received. Lender shall be responsible for safeguarding any
test keys, identification codes or other security devices which Lending Agent
may make available to Lender or its Authorized Persons. (iii) Unless otherwise
agreed, Lending Agent shall deliver lending Instructions to Custodian by SWIFT
MT 54 ( x ) series, or, on an exceptional basis, SWIFT MT 599. To the extent
that Lending Agent is unable to deliver lending instructions via SWIFT, Lender
shall assure that Custodian shall accept lending Instructions via telefax.
(b) Continuing effect of Proper Instructions. Unless otherwise expressly
provided, all Proper Instructions shall continue in full force and effect until
canceled or superseded.
Section 11 - Pricing Services
Lending Agent 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 Lending
Agent 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
15
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. Lending Agent 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 shall or may expend or incur in
relation thereto.
(b) Integration. Lending Agreement to Govern. Assignment. This Lending
Agreement, together with the Operating Agreement, contains the complete
agreement among 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. As between Lender and Lending
Agent, in the event of any conflict between this Lending Agreement and the
Operating Agreement, this Lending Agreement shall govern. This Lending Agreement
shall be binding on each of the parties' successors and assigns, but neither
party shall assign its rights and obligations under this Agreement without the
prior written consent of the other, which consent shall not be unreasonably
withheld.
(c) Notices. 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 receipted courier
service. All such notices which are mailed shall be deemed delivered upon
receipt. Notices shall be addressed as follows (or to such other address as a
party may from time to time designate on notice duly given in accordance with
this Section): notices to Lending Agent shall be addressed to it at 0 Xxx Xxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Global Securities Lending; notices
to be given to Lender shall be addressed to it at its offices at 0000 Xxxxxxx
Xxxx, Xxxxx 0000, Xxxxxxxx, XX 00000 ___________________________, Attention:
Performace Funds client services ______________________.
(d) Amendments. Waiver. This Lending Agreement may be modified only by a
written amendment signed by both parties, and no waiver of any provision hereof
shall be effective unless expressed in a writing signed by the party to be
charged.
(e) Governing Law. Consent to Jurisdiction. Waiver of Jury Trial. Waiver of
Immunity. THIS LENDING AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, without regard to the conflict of laws principles
thereof other than the choice of law and forum provisions contained in New York
General Obligations Law Sections 5-1401 and 5-1402, respectively, and shall be
binding on Bank's and Lender's respective successors and permitted assigns. Bank
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. Bank and Lender hereby voluntarily,
irrevocably, and unconditionally waive any right to have a jury participate in
resolving any dispute, whether arising in contract, tort, or otherwise, between
them arising in connection with, related to, or incidental to the relationship
established between the Bank and Lender in connection with this Agreement, or
any other agreement or document executed or delivered in connection herewith or
the transactions
16
related hereto. 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 hereof 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 unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
INSERT: DISCLOSURE OF ACCOUNT INFORMATION. It is understood and agreed that the
Lending Agent is authorized to supply any information regarding the Account
which is required by any law or governmental regulation now or hereafter in
effect. In addition, the parties further agree that any Nonpublic Personal
Information, as defined under Section 248.3(t) of Regulation S-P ("Regulation
S-P"), promulgated under the Xxxxx-Xxxxx-Xxxxxx Act (the "Act"), disclosed by a
party hereunder is for the specific purpose of permitting the other party to
perform the services set forth in this Agreement. Each party agrees that, with
respect to such information, it will comply with Regulation S-P and the Act and
that it will not disclose any Nonpublic Personal Information received in
connection with this Agreement, to any other party, except as necessary to carry
out the services set forth in this Agreement or as otherwise permitted by
Regulation S-P or the Act.
(h) Identity of Adviser. If Lender is a registered investment company, the
name of the investment adviser (and subadvisers, if any), to Lender is Trustmark
Investment Advisors, Inc. Lender shall promptly notify Bank of any change in the
identity of any of the foregoing.
[Use only where needed] (i) Limitation on Scope of ________________'s Liability.
Although a signatory hereto, such execution by __________ (and its liability
hereunder) is limited solely to the representations and warranties given by it
pursuant to Section 3(d) hereof.
IN WITNESS WHEREOF, the parties have executed this Lending Agreement as of
the date first above-written.
[The Performance Funds] JPMORGAN CHASE BANK, N.A.
By: By:
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxx Name:
Title: President ----------------------------------
Title:
---------------------------------
17
