SECURITIES LENDING AGENCY AGREEMENT BETWEEN INVESTORS BANK & TRUST COMPANY AND THE GLENMEDE FUND, INC.
(h)(5)
BETWEEN
INVESTORS
BANK & TRUST COMPANY
AND
THE
GLENMEDE FUND, INC.
AGREEMENT,
dated as of September 1, 2001, between The Glenmede Fund, Inc. (the "Lender")
on
behalf of its investment portfolios listed on Schedule A (the “Portfolios”), and
Investors Bank & Trust Company, a trust company organized and existing under
the laws of the Commonwealth of Massachusetts (the “Bank”).
WHEREAS,
the Bank currently acts as custodian for securities held by it in the Account
(as defined below) from time to time on behalf of the Lender; and
WHEREAS,
the Lender desires to appoint the Bank as its agent for the purpose of lending
securities in the Account as more fully set forth below; and
WHEREAS,
the Bank has agreed to act as the Lender’s agent for such purpose pursuant to
the terms hereof;
NOW,
THEREFORE, for and in consideration of the mutual promises set forth herein,
the
parties hereto agree as follows:
1.
Definitions.
Whenever
used in this Agreement, unless the context otherwise requires, the following
words shall have the meanings set forth below. Capitalized terms used but not
defined herein shall have the meaning assigned to them in the applicable
Securities Borrowing Agreement.
1.1
“Account” shall mean the custodial account or accounts established and
maintained by the Bank on behalf of each Portfolio of the Lender, listed on
Schedule A hereto, as such Schedule may be amended from time to time by written
agreement of the parties, for the safekeeping of securities and monies received
by the Bank from time to time.
1.2
“Approved Investment” shall mean any type of security, participation or interest
in property in which Cash Collateral may be invested or reinvested, as set
forth
on Schedule I hereto (which may be amended from time to time to add additional
Approved Investments with the written consent of the Bank and the Lender, or
to
delete any Approved Investment at the written direction of the
Lender).
1.3
“Authorized Person” shall be any officer of the Lender and any other person,
whether or not any such person is an officer or employee of the Lender, duly
authorized by corporate resolutions of the Board of Directors or Trustees,
as
the case may be, of the Lender to give Oral and/or Written Instructions on
behalf of the Lender, such persons to be designated in a Certificate which
contains a specimen signature of such person.
1.4
“Book-Entry System” shall mean the Federal Reserve/Treasury book-entry system
for receiving and delivering Government Securities (as defined herein), its
successors and nominees.
1.5
“Borrower” shall mean any entity named on Schedule II hereto (as such Schedule
may be amended from time to time to
add
additional Borrowers with the written consent of the Bank and the Lender, or
to
delete any Borrower at the written direction of the Lender) or any affiliate
of
such named entity. The Lender will promptly notify the Bank if at any
time:
(a)
any
potential Borrower which is a broker-dealer registered under the Securities
Exchange Act of 1934 (the “1934 Act”), a broker-dealer exempted from
registration under Section 15(a)(1) of the 1934 Act as a dealer of exempted
Government securities, or a bank, has discretionary authority or control with
respect to the investment of any Securities available for Loan, or
(b)
any
potential Borrower not described in clause (a) above is a party who is with
respect to the Lender in such a position that a loan would be considered a
conflict of interest under applicable law.
If
the
Lender provides such notice, the Bank shall take appropriate action to prevent
the Lender from engaging in a Loan with any potential Borrower so identified
by
the Lender. The Bank shall be entitled to rely upon such notices from the Lender
(and the absence of such notices) in its operation of this securities lending
program.
1.6
“Cash
Collateral” shall mean either fed funds or New York Clearing House funds, as
applicable for a particular loan of Securities.
1.7
“Certificate” shall mean any notice, instruction, schedule or other instrument
in writing, authorized or required by this Agreement to be given to the Bank,
which is actually received by the Bank and signed on behalf of the Lender by
an
Authorized Person or a person reasonably believed by the Bank to be an
Authorized Person.
1.8
“Collateral” shall mean Cash Collateral unless the Bank and the Lender have
agreed in writing to additional collateral, including Government Securities
and
Letters of Credit.
1.9
“Collateral Account” shall mean a segregated account established and maintained
by the Bank for the purpose of holding Collateral, Cash Collateral and Approved
Investments, interest, dividends and other payments and distributions received
with respect to Collateral and Approved Investments (“Distributions”), and any
Securities Loan Fee paid by Borrowers in connection with Securities loans
hereunder.
1.10
“Depository” shall mean the Depository Trust Company, Participant’s Trust
Company, Euroclear, and any other securities depository or clearing agency
(and
their respective successors and nominees) authorized under applicable law or
regulation to act as a securities depository or clearing agency, including
any
foreign securities depository approved by the Lender or its authorized
delegate.
1.11
“Government Security” shall mean book-entry Treasury securities (as defined in
Subpart 0 of Treasury Department Circular No. 300, 31 C.F.R. 306) and any other
securities issued or fully guaranteed by the United States government or any
agency or instrumentality of the United States government.
1.12
“Letter of Credit” shall mean a clean, unconditional and irrevocable letter of
credit in favor of the Bank as agent for the Lender issued by a bank named
on
Schedule III hereto as may be amended from time to time to add additional banks
by the written consent of the parties hereto, or to delete any Bank at the
written direction of the Lender.
1.13
“Oral Instructions” shall mean verbal instructions actually received by the Bank
from an Authorized Person or from a person reasonably believed by the Bank
to be
an Authorized Person.
1.14
“Rebate” shall mean the amount payable by the Lender to a Borrower (as set forth
in a Receipt) in connection with Securities loans at any time collateralized
by
Cash Collateral.
1.15
"Receipt" shall mean an advice or confirmation setting forth the terms of a
particular loan of Securities hereunder, including, without limitation, the
Collateral with respect to such loan.
1.16
“Securities Borrowing Agreement” shall mean with, respect to any Borrower, the
agreement pursuant to which the Bank lends securities on behalf of its customers
(including the Lender) to such Borrower as may be amended from time to
time.
1.17
“Securities Loan Fee” shall mean the amount payable by a Borrower to the Bank,
as agent for the Lender, pursuant to the applicable Securities Borrowing
Agreement in connection with Securities loans, if any, collateralized by
Collateral other than Cash Collateral.
1.18
“Security” shall mean any Government Securities, non-U.S. securities, common
stock and other equity securities, bonds, debentures, corporate debt securities,
notes, mortgages or other obligations, and any certificates, warrants or other
instruments representing rights to receive, purchase, or subscribe for the
same,
or evidencing or representing any other rights or interests therein, which
are
available for lending pursuant to Section 2.2 of this
Agreement.
-2-
1.19
“Written Instructions” shall mean written communications actually received by
the Bank from an Authorized Person or from a person reasonably believed by
the
Bank to be an Authorized Person by letter, memorandum, telegram, cable, telex,
telecopy facsimile, computer, video (CRT) terminal or other on-line system,
or
any other method whereby
the Bank is able to verify with a reasonable degree of certainty the identity
of
the sender of such communications or the sender is required to provide a
password or other identification code.
2.
Appointment;
Scope of Agency Authority.
2.1
Appointment.
The
Lender hereby appoints the Bank as its agent to lend Securities in the Account
to Borrowers from time to time as hereinafter set forth, and the Bank hereby
accepts appointment as such agent and agrees to so act.
2.2
Securities
Subject to Lending.
Unless
the Lender provides otherwise in writing to the Bank, all Securities maintained
in the Account shall be available for lending pursuant to this Agreement;
provided however, that at no time shall more than one-third of a particular
Portfolio’s total assets be lent by the Bank as agent for the Lender, as of the
time of any such loan.
2.3
Securities
Borrowing Agreement.
The
Lender hereby acknowledges receipt of a Securities Borrowing Agreement with
respect to each Borrower and authorizes the Bank to lend Securities in the
Account to Borrowers pursuant to such agreements. In the event that any
provision of the applicable Securities Borrowing Agreement conflicts with any
provision of this Agreement, the provision of this Agreement shall prevail.
The
Bank shall promptly provide the Lender with copies of any material amendments
or
changes to such agreements. The Lender may elect to terminate any Borrower
from
Schedule II if it opposes the change.
2.4
Loan
Opportunities.
The
Lender acknowledges and agrees that the Bank shall have the right to decline
to
make any loans of Securities under any Securities Borrowing Agreement and to
discontinue lending under any Securities Borrowing Agreement in its sole
discretion and without notice to the Lender. The Lender agrees that it shall
have no claim against the Bank based on, or relating to, loans made for other
customers or for the Bank’s own account, or loan opportunities refused
hereunder, whether or not the Bank has made fewer or more loans for any other
customer or for the Bank’s own account than for the Lender, and whether or not
any loan for another customer or for the Bank’s own account, or the opportunity
refused, could have resulted in loans made hereunder.
2.5
Use
of
Book-Entry System and Depositories.
The
Lender hereby authorizes the Bank on a continuous and on-going basis, to deposit
in the Book-Entry System and any Depositories all Securities eligible for
deposit therein and to utilize the Book-Entry System and Depositories to the
extent possible in connection with its receipt and delivery of Securities,
Collateral, Approved Investments and monies under this Agreement. Where
Securities, Collateral (other than Cash Collateral) and Approved Investments
eligible for deposit in the Book-Entry System or a Depository are transferred
to
the Account, the Bank shall identify as belonging to the Lender a quantity
of
securities in a fungible bulk of securities shown on the Bank’s account on the
books of the Book-Entry System or the applicable Depository. Securities,
Collateral and Approved Investments deposited in the Book-Entry System or a
Deposit will be represented in accounts which include only assets held by the
Bank for customers, including but not limited to accounts in which the Bank
acts
in a fiduciary or agency capacity.
2.6
Portfolios.
Notwithstanding anything in this Agreement to the contrary, any amount or
obligation owed by the Lender under this Agreement or otherwise with respect
to
any loan hereunder shall be paid only out of the assets of the particular
Portfolio making such loan.
3.
Representations
and Warranties.
3.1
Lender’s
Representations
The
Lender hereby represents and warrants to the Bank, which representations and
warranties shall be deemed to be continuing and to be reaffirmed on any day
that
a Securities loan hereunder is outstanding, that:
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(a)
This
Agreement and the use of the Approved Investments has been approved and will
be
submitted for approval annually by the Board of Directors/Trustees of the Lender
as being in the best interests of shareholders of the Lender; this Agreement
is,
and each Securities loan and Approved Investment will be, legally and validly
entered into by the Lender, does not, and will not, violate any statute,
regulation, rule, order or, judgment binding on the Lender, or any provision
of
the Lender’s charter or by-laws, or any agreement binding on the Lender or
affecting its property, and is enforceable against the Lender in accordance
with
its terms, except as may be limited by bankruptcy, insolvency or similar laws,
or by equitable principles relating to or limiting creditors rights
generally;
(b)
The
person executing this Agreement and all Authorized Persons acting on behalf
of
the Lender has and have been duly and properly authorized to do so;
(c)
It is
lending Securities as principal for its own account and it will not transfer,
assign or encumber its interest in, or rights with respect to, any securities
loans;
(d)
All
Securities subject to lending pursuant to Section 2.2 of this Agreement are
free
and clear of all liens, claims, security interests and encumbrances, no such
Security subject to lending has been sold and the Lender has no present
intention to sell any of the Securities subject to lending. The Lender shall
promptly delete from the list referenced in Section 2.2 hereof any and all
Securities which are no longer subject to the representations contained in
this
sub-paragraph (d).
3.2
Bank’s
Representations
The Bank
hereby represents and warrants to the Lender, which representations and
warranties shall be deemed to be continuing and to be reaffirmed on any day
that
a Securities loan hereunder is outstanding, that:
(a)
This
Agreement is legally and validly entered into by the Bank, does not and will
not, violate any statute, regulation, rule, order or, judgment binding on the
Bank, or any provision of the Bank’s charter or by-laws, or any agreement
binding on the Bank or affecting its property, and is enforceable against the
Bank in accordance with its terms, except as may be limited by bankruptcy,
insolvency or similar laws, or by equitable principles relating to or limiting
creditors rights generally; and
(b)
The
person executing this Agreement on behalf of the Bank and all persons acting
on
the Bank’s behalf pursuant to this Agreement have been duly and properly
authorized to do so.
4.
Securities
Lending Transactions.
4.l
Loan
Initiation.
From
time to time the Bank may lend Securities to Borrowers and deliver such
Securities against receipt of Collateral in accordance with the applicable
Securities Borrowing Agreement. The Bank shall deliver to the Lender a Receipt
in connection with each loan made hereunder, prior to settlement of such
loan.
4.2
Receipt
of Collateral; Approved Investments.
(a)
For
each loan hereunder the Bank shall (i) initially receive Cash Collateral
equivalent to no less than 102% of the market value (plus accrued interest,
if
any, with respect to debt securities) of the securities lent that are issued
in
the U.S. and 105% for securities lent that are issued outside of the U.S. and
(ii) thereafter shall demand on a daily basis as necessary additional
Collateral, which for Cash Collateral shall be an amount such that the value
of
the Cash Collateral in no event be equivalent to less than 100% of the market
value (plus accrued interest, if any, with respect to debt securities)
of the
Securities lent (as determined in accordance with the applicable Securities
Borrowing Agreement), and the Bank is hereby authorized and directed, without
obtaining any further approval from the Lender, to invest and reinvest all
or
substantially all of the Cash Collateral received in any Approved Investment.
The Bank shall credit all Collateral, Approved Investments and Distributions
received with respect to Collateral and Approved Investments to the Collateral
Account and ▇▇▇▇ its books and records to identify the Lender’s ownership
thereof as appropriate.
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(b)
All
Approved Investments shall be for the account and risk of the Lender, except
to
the extent that the Bank has breached its standard of care provided hereunder.
To the extent any loss arising out of Approved Investments results in a
deficiency in the amount of Collateral available for return to a Borrower
pursuant to the Securities Borrowing Agreement, the Lender agrees to pay the
Bank on demand cash in an amount equal to such deficiency.
(c)
Except as otherwise provided herein, all Collateral, Approved Investments and
Distributions credited to the Collateral Account shall be controlled by, and
subject only to the instructions of, the Bank, and the Bank shall not be
required to comply with any instructions of the Lender with respect to the
same.
4.3
Distributions
on Loaned Securities.
Except
as provided in the next sentence, all interests, dividends, and other
distributions paid with respect to loaned Securities shall be credited to the
Lender’s account on the date such amounts are delivered by the Borrower to the
Bank. Any non-cash distribution on loaned Securities which is in the nature
of a
stock split or a stock dividend shall be added to the applicable loan (and
shall
be considered to constitute loaned Securities) as of the date such non-cash
distribution is received by the Borrower.
4.4
Marks
to Market.
The
Bank
shall on each Business Day ▇▇▇▇ to market in U.S. dollars the value of all
Securities loaned hereunder and accordingly receive and release Collateral
in
accordance with the applicable Securities Borrowing Agreement.
4.5
Collateral
Substitutions.
The
Bank shall accept substitutions of Collateral in accordance with the applicable
Securities Borrowing Agreement and shall credit all such substitutions to the
Collateral Account, provided however that unless other Collateral has been
mutually agreed upon in writing by the Bank and the Lender, no other Collateral
may be substituted for Cash Collateral.
4.6
Termination
of Loans.
Loans
shall generally be terminated on demand. Securities on loan shall be returned
within the time limits specified in the Securities Borrowing Agreement
(generally within five (5) business days of the termination of the loan, except
that with respect to non-U.S. Securities which shall be returned within the
normal settlement period applicable in the market for such Securities). The
Bank
shall terminate any Securities loan to a Borrower in accordance with the
applicable Securities Borrowing Agreement as soon as practicable
after:
(a)
receipt by the Bank of a notice of termination pursuant to the Securities
Borrowing Agreement;
(b)
receipt by the Bank of Written Instructions instructing it to terminate a
Securities loan;
(c)
receipt by the Bank of Written Instructions deleting the Borrower to whom such
loan was made from Schedule II hereto;
(d)
upon
the Bank's becoming aware of the occurrence of any default pursuant to the
applicable Securities Borrowing Agreement requiring termination of such loan;
or
(e)
whenever the Bank, in its sole discretion, elects to terminate such
loan.
(f)
upon
termination of this Agreement.
4.7
Securities
Loan Fee.
The
Bank shall receive any applicable Securities Loan Fee paid by Borrowers pursuant
to the Securities Borrowing Agreement and credit all such amounts received
to
the Collateral Account.
4.8
The
Borrower’s Financial Condition.
The
Bank has delivered to the Lender each of the Borrower’s most recent statements
that have been made available to the Bank pursuant to the Securities Borrowing
Agreements. The Bank shall promptly deliver to the Lender all statements and
financial information subsequently delivered to the Bank and required to be
furnished to the Bank under the Securities Borrowing Agreements.
4.9
Transfer
Taxes and Necessary Costs.
All
transfer taxes and necessary costs with respect to the transfer of the loaned
Securities by the Lender to the Borrower and the Borrower to the Lender upon
the
termination of the loan shall be paid by the Borrower in accordance with the
applicable Securities Borrowing Agreement.
-5-
4.10
Remedies
Upon Default.
In the
event of any default by a Borrower under the applicable Securities Borrowing
Agreement, the Bank shall use its best efforts to pursue, on behalf of the
Lender, any remedies that the Bank or the Lender may have under the applicable
Securities Borrowing Agreement.
4.11
Bank’s
Obligation.
Except
as set forth in Section 4.10, elsewhere herein, or in any applicable Securities
Borrowing Agreement, the Bank shall have no duty or obligation to take action
to
effect payment by a Borrower of any amounts owed by such Borrower pursuant
to
the Securities Borrowing Agreement.
5.
Concerning
the Bank.
5.1 Standard
of Care: Indemnification.
(a)
It is
expressly understood and agreed that in exercising its rights and performing
its
obligations hereunder, the Bank owes no fiduciary duty to the Lender. The Bank
shall not be liable for any costs, expenses, damages, liabilities or claims
(including attorneys and accountants fees) incurred by the Lender, except those
costs, expenses, damages, liabilities or claims arising out of the Bank’s
negligence, willful misconduct, bad faith, or reckless disregard of its
obligations and duties hereunder. The Bank shall have no obligation hereunder
for costs, expenses, damages, liabilities or claims (including reasonable
attorneys and accountants fees), which are sustained or incurred by reason
of
any action or inaction by the Book-Entry System or any Depository or their
respective successors or nominees. In no event shall the Bank be liable for
special, punitive or consequential damages, arising under or in connection
with
this Agreement, even if previously informed of the possibility of such
damages.
(b)
Except for ordinary operating expenses incurred by the Bank in providing
services hereunder, the Lender agrees to indemnify the Bank and to hold it
harmless from and against any and all costs, expenses, damages, liabilities
or
claims, including reasonable fees and expenses of counsel, which the Bank may
sustain or incur or which may be asserted against the Bank by reason of or
as a
result of any action taken or omitted by the Bank in connection with or arising
out of the Bank’s operating under and in compliance with this Agreement, except
those costs, expenses, damages, liabilities or claims arising out of the Bank’s
negligence, bad faith, willful misconduct, or reckless disregard of its
obligations and duties hereunder. The foregoing indemnity shall be a continuing
obligation of the Lender, its
successors and assigns, notwithstanding the termination of any loans hereunder
or of this Agreement. Actions taken or omitted in reasonable reliance upon
Oral
or Written Instructions, any Certificate, or upon any information, order,
indenture, stock certificate, power of attorney, assignment, affidavit or other
instrument reasonably believed by the Bank to be genuine or bearing the
signature of a person or persons reasonably believed by the Bank to be genuine
or bearing the signature of a person or persons reasonably believed to be
authorized to sign, countersign or execute the same, shall be presumed to have
been taken or omitted in good faith.
5.2
No
Obligation to Inquire.
Without
limiting the generality of the foregoing, the Bank shall be under no obligation
to inquire into, and shall not be liable for, the validity of the issue of
any
Securities at any time held in the Account or Approved Investments held in
the
Collateral Account, or the legality or propriety of any loans of Securities
to
Borrowers, except to the extent that the Bank has breached its standard of
care
provided hereunder.
5.3
Advances,
Overdrafts and Indebtedness; Security Interest.
(a)
The
Bank may, in its sole discretion, advance funds on behalf of the Lender in
order
to pay to Borrowers any Rebates or to return to Borrowers Cash Collateral to
which they are entitled pursuant to the Securities Borrowing Agreement. The
Bank
may also, in its sole discretion and as a matter of bookkeeping convenience,
credit the Account with interest, dividends or other distributions payable
on
Securities prior to its actual receipt of final payment therefor and the Lender
agrees that such bookkeeping credits may also be reflected on its books, and
otherwise, as “immediately available” or “same day” funds or by some similar
characterization. Notwithstanding any such credit or characterization, all
such
credits shall be conditional upon the Bank’s actual receipt of final payment and
may be reversed by the Bank to the extent that final payment is not received.
If
the Bank, in its sole discretion, permits the Lender to use funds credited
to
the Account prior to receipt by the Bank of final payment thereof, the Lender
shall nonetheless, continue to bear the risk of, and liability for, the Bank’s
non receipt of final payment in full.
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(b)
The
Lender agrees to repay the Bank on demand the amount of any advance or credit
described in Section 5.3(a) above or any other amount owed by the Lender
hereunder plus accrued interest at a rate per annum (based on a 360-day year
for
the actual number of days involved) as agreed to by the parties from time to
time. In order to secure repayment of any credit, advance, overdraft or other
indebtedness of the Lender to the Bank arising hereunder, the Lender hereby
agrees that the Bank shall have a continuing lien and security interest, to
the
extent of any such amounts owing, in and to all assets now or hereafter held
in
the Account and the Collateral Account, which is then in the Bank’s possession
or control or in the possession or control of any third party acting on the
Bank’s behalf. In this regard, the Bank shall be entitled to charge any amounts
owed to the Bank hereunder against any balance of account standing to the credit
of the Lender on the Bank’s books and, without limiting the foregoing, to all
the rights and remedies of a pledgee under common law and a secured party under
the Massachusetts Uniform Commercial Code and/or any other applicable laws
and/or regulations as then in effect.
(c)
The
rights of the Bank and the obligations of the Lender under this Section are
absolute and unconditional whether or not the Bank would be entitled to
indemnification pursuant to Section 5.l(b) hereof.
(d)
For
all purposes of this Agreement, payment with respect to a transaction will
not
be “final” until the Bank shall have received immediately available funds which
under applicable law or rule are irreversible, which are not subject to any
security interest, levy or other encumbrance, and which are specifically
applicable, or deemed by the Bank to be specifically applicable, to such
transaction. A debit by the Bank to any other account of the Lender maintained
by the Bank or to an account of any third party to whom or for whose account
Securities have been delivered shall not constitute final payment to the extent
that such debit creates an overdraft or does not otherwise result in the receipt
by the Bank of immediately available, irreversible and unencumbered
funds.
5.4
Advice
of Counsel
The Bank
may, with respect to questions of law, apply for and obtain the advice and
opinion of counsel and shall be fully protected with respect to anything done
or
omitted by it in good faith in conformity with such advice or
opinion.
5.5
No
Collection Obligations.
Except
as set forth in Section 4.10, elsewhere herein, the Bank shall be under no
obligation or duty to take action to effect collection of any amounts payable
in
respect of Securities or Approved Investments if such Securities or Approved
Investments are in default, or if payment is refused after due demand and
presentation.
5.6
Pricing
Methods.
The
Bank is authorized to utilize any recognized pricing information service or
any
other means of valuation specified in the applicable Securities Borrowing
Agreement (“Pricing Methods”) in order to perform its valuation responsibilities
with respect to loaned Securities, Collateral and Approved Investments, and
the
Lender agrees to hold the Bank harmless from and against any loss or damage
suffered or incurred as a result of errors or omissions of any such Pricing
Methods.
5.7
Agent’s
Fee.
In
connection with each Securities loan hereunder the Lender shall pay to the
Bank
a fee equal to 40% of (a) net realized income derived from Approved Investments,
plus (b) any Securities Loan Fee paid or payable by the Borrower, minus (c)
any
Rebate paid by the Bank to the Borrower. The Bank is authorized, on a monthly
basis, to charge its fee and any other amounts owed by the Lender hereunder
against the Account and/or Collateral Account.
5.8
Reliance
On Certificates and Instructions.
The
Bank shall be entitled to rely upon any Certificate, any information contained
on any Schedule hereto as may be amended in accordance with the terms hereof,
and Written or Oral Instruction actually received by the Bank and reasonably
believed by the Bank to be duly authorized and delivered. The Lender agrees
to
forward to the Bank Written Instructions confirming Oral Instructions in such
manner so that such Written Instructions are received by the Bank by the close
of business of the same day that such Oral Instructions are given to the Bank.
The Lender agrees that the fact that such confirming Written Instructions are
not received on a timely basis or that contrary instructions are received by
the
Bank shall in no way affect the validity or enforceability of the transactions
authorized by the Lender. The Bank will use reasonable efforts to report any
subsequently received contrary instructions. In this regard, the records of
the
Bank shall be presumed to reflect accurately any Oral Instructions given by
an
Authorized Person or a person reasonably believed by the Bank to be an
Authorized Person.
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5.9
Disclosure
of Account Information.
It is
understood and agreed that the Bank 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 ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ 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.
5.10
Statements.
The
Bank will at least daily furnish the Lender with statements describing the
loans
made and the income derived from such loans hereunder on a Portfolio by
Portfolio basis.
5.11
Force
Majeure.
The
Bank shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Agreement arising out of or caused,
directly or indirectly, by acts of God, earthquakes, fires, floods, storms
or
other disturbances of nature, epidemics, strikes, riots, nationalization,
expropriation, currency restrictions, acts of war, civil war or terrorism,
insurrection, nuclear fusion, fission or radiation, the interruption, loss
or
malfunction of utilities, transportation, the unavailability of energy sources
and other similar happenings or events except as results from the Bank’s own
negligence.
5.12
No
Implied Duties.
(a)
The
Bank shall have no duties or responsibilities whatsoever except such duties
and
responsibilities as are specifically set forth in this Agreement and in the
applicable Securities Borrowing Agreement, and no covenant or obligation shall
be implied against the Bank in connection with this Agreement.
(b)The
Lender shall have no duties or responsibilities whatsoever except such duties
and responsibilities as are specifically set forth in this Agreement, and no
covenant or obligation shall be implied against the Lender in connection with
this Agreement.
6.
Termination.
This
Agreement may be terminated at any time by either party upon delivery to the
other party of a written notice specifying the date of such termination, which
shall be not less than 60 days after the date of receipt of such notice.
Notwithstanding any such notice, this Agreement shall continue in full force
and
effect with respect to all loans of Securities outstanding on the date of
termination, which loans shall, however, be terminated as soon as reasonably
practicable.
7.
Miscellaneous.
7.1
Exclusivity.
The
Lender agrees that it shall not enter into any other agreement with any third
party whereby such third party is permitted to make loans on behalf of the
Lender of any securities held by the Bank in the Account from time to
time.
7.2
Certificates.
The
Lender agrees to furnish to the Bank a new Certificate in the event that any
present Authorized Person ceases to be an Authorized Person or in the event
that
any other Authorized Persons are appointed and authorized. Until such new
Certificate is received, the Bank shall be fully protected in acting upon Oral
Instructions or signatures of the present Authorized Persons.
7.3
Notices.
(a)
Any
notice or other instrument in writing, authorized or required by this Agreement
to be given to the Bank, shall be sufficiently given if addressed to the Bank
and received by it at its offices at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Securities Lending Department,
with
a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel or at such other place as the Bank
may
from time to time designate in writing.
-8-
(b)
Any
notice or other instrument in writing, authorized or required by this Agreement
to be given to the Lender shall be sufficiently given if addressed to the
Lender’s investment adviser, Glenmede Advisers, Inc. and mailed or delivered to
it at its offices at One
Liberty Place, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
or at
such other place as the Lender may from time to time designate in
writing.
7.4
Cumulative
Rights and No Waiver.
Each
and every right granted to a party hereunder or under any other document
delivered hereunder or in connection herewith, or allowed it by law or equity,
shall be cumulative and may be exercised from time to time. No failure on the
part of a party to exercise, and no delay in exercising, any right will operate
as a waiver thereof, nor will any single or partial exercise by a party of
any
right preclude any other or future exercise thereof or the exercise of any
other
right.
7.5
Severability.
In case
any provision in or obligation under this Agreement shall be invalid, illegal
or
unenforceable in any jurisdiction, the validity, legality and enforceability
of
the remaining provisions or obligations shall not in any way be affected or
impaired thereby, and if any provision is inapplicable to any person or
circumstances, it shall nevertheless remain applicable to all other persons
and
circumstances.
7.6
Amendments.
This
Agreement may not be amended or modified in any manner except by a written
agreement executed by both parties.
7.7
Successors
and Assigns.
This
Agreement shall extend to and shall be binding upon the parties hereto, and
their respective successors and assigns; provided, however, that this Agreement
shall not be assignable by either party without the written consent of the
other.
7.8
Governing Law;
Consent to Jurisdiction.
This
Agreement shall be construed in accordance with the laws of the Commonwealth
of
Massachusetts without regard to conflict of laws principles thereof. The Lender
hereby consents to the jurisdiction of a state or federal court situated in
Boston, Massachusetts in connection with any dispute arising hereunder.
7.9
No
Third Party Beneficiaries.
In
performing hereunder, the Bank is acting solely on behalf of the Lender and
no
contractual or service relationship shall be deemed to be established hereby
between the Bank and any other person.
7.10
Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but such counterparts shall, together, constitute
only
one instrument.
7.11
SIPA
Notice.
THE
PROVISIONS OF THE SECURITIES INVESTOR PROTECTION ACT OF 1970 MAY NOT PROTECT
THE
LENDER WITH RESPECT TO LOANS HEREUNDER AND, THEREFORE, THE COLLATERAL DELIVERED
TO THE BANK AS AGENT FOR THE LENDER MAY CONSTITUTE THE ONLY SOURCE OF
SATISFACTION OF A BORROWER’S OBLIGATION IN THE EVENT SUCH BORROWER FAILS TO
RETURN THE LOANED SECURITIES.
[Remainder
of Page Intentionally Left Blank]
-9-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective corporate officers, thereunto duly authorized and their
respective corporate seals to be hereunto affixed, as of the day and year first
above written.
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THE
GLENMEDE FUND, INC.
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By:
/s/
▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇
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Title:President
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INVESTORS
BANK & TRUST COMPANY
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By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title:
Senior Director
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-10-
Schedule
I
Approved
Investments
Bank
Obligations:
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Bank
Obligations with U.S. banks and U.S. branches of foreign banks. All
Banks
obligations will have a short term rating of ▇▇▇-▇, ▇-▇, or P-1 from
▇▇▇▇▇▇▇▇ Bankwatch, S & P or Moody’s at time of
purchase.
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Money
Market Funds
Institutional
Money Market Funds with assets greater than $500 million, including, without
limitation, the Merrimac Cash Fund series of Merrimac Funds* ,
subject
to and in accordance with the limits prescribed by the Investment Company Act
of
1940.
Repurchase
Agreements
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Collateral
held by IBT or a third party subcustodian. Collateralized at a minimum
of
102%. Eligible Collateral includes US Government, Mortgage Backed
Securities & Commercial Paper (A-1 or P-1) with the following
brokers.
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ABN
AMRO
Bear
▇▇▇▇▇▇▇ & Co, Inc
CS
First
Boston Corporation
▇▇▇▇▇▇▇
▇▇▇▇▇ & Co.
▇▇▇▇▇▇
Brothers, Inc.
▇.▇.
▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇▇▇▇
▇▇▇▇▇ Government Securities.
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Inc.
PaineWebber,
Inc
Prudential
Securities, Inc
UBS
Securities. Inc
Commercial
Paper
Must
be
rated A-1 by S&P or P-1 by Moodys at time of purchase.
Government
Securities
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Securities
issued by the U.S. Government, its agencies or
instrumentalities.
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Unsecured
Promissory Notes (Master Notes)
Must
have
a rating or Parental rating of A-1 by S&P or P-1 by Moodys at time of
purchase.
GENERAL
All
investments will be US Dollar denominated.
The
final maturity for any security/issue will be less than one
year.
All
investments will be in compliance with Investment Company Act of
1940.
All
investments will meet the minimum applicable credit rating associated with
each
fund at time of purchase, and will be immediately sold if
downgraded.
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By:
/s/
▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇
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Title:President
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Date:
8/30/01
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*
The Bank
acts as investment adviser to and serves as custodian, administrator and
transfer agent of the Merrimac Funds.
Schedule
II
Approved
Borrowers
Bank
of
America Securities LLC
Bear,
▇▇▇▇▇▇▇ Securities Corp.
Credit
Suisse First Boston Corporation (includes DLJ Securities Corp.)
Deutsche
Bank Securities Inc. (includes BT ▇▇▇▇ ▇▇▇▇▇ Inc.)
▇▇▇▇▇▇▇,
Sachs & Co.
ING
Barings, LLC
▇▇▇▇▇▇
Brothers Inc.
▇▇
▇▇▇▇▇▇
Securities Inc.
▇▇▇▇▇▇▇
Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. (includes ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities Services
Inc.)
Prudential
Securities, Inc.
▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc.
UBS
(includes Warburg ▇▇▇▇▇▇ ▇▇▇▇▇ Inc. and PaineWebber, Inc.)
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By:
/s/
▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇
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Title:
President
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Date:8/30/01
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Schedule
III
Letter
of Credit Banks
[To
be
Determined]
Schedule
A
As
of September 1, 2001
Portfolios
of The Glenmede Fund, Inc.:
Core
Fixed Income Portfolio
Core
Value Portfolio
Government
Cash Portfolio
Institutional
International Portfolio
International
Portfolio
Large
Cap
Value Portfolio
Small
Capitalization Growth Portfolio
Small
Capitalization Value Portfolio
Strategic
Equity Portfolio
Tax-Exempt
Cash Portfolio
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The
Glenmede Fund, Inc.
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Investors
Bank & Trust Company
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By:
/s/
▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇
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By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
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Name:
▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
|
|
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Title:
President
|
Title:
Senior Director
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