Exhibit (h)(4)
SECURITIES LENDING AUTHORIZATION AGREEMENT
Between
IXIS ADVISOR FUNDS TRUST I
IXIS ADVISOR FUNDS TRUST II
IXIS ADVISOR FUNDS TRUST III
IXIS ADVISOR FUNDS TRUST IV
IXIS ADVISOR CASH MANAGEMENT TRUST
▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDS I
▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDS II
each on behalf of its respective series listed on Schedule B, severally and not
jointly
and
STATE STREET BANK AND TRUST COMPANY
TABLE OF CONTENTS
PAGE
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1. DEFINITIONS........................................................... 1
2. APPOINTMENT OF STATE STREET........................................... 2
3. SECURITIES TO BE LOANED............................................... 2
4. BORROWERS............................................................. 3
5. SECURITIES LOAN AGREEMENTS............................................ 3
6. LOANS OF AVAILABLE SECURITIES......................................... 3
7. DISTRIBUTIONS ON AND VOTING RIGHTS WITH RESPECT TO LOANED SECURITIES.. 4
8. COLLATERAL............................................................ 5
9. INVESTMENT OF CASH COLLATERAL AND COMPENSATION........................ 6
10. FEE DISCLOSURE........................................................ 7
11. RECORDKEEPING AND REPORTS............................................. 8
12. STANDARD OF CARE...................................................... 8
13. REPRESENTATIONS AND WARRANTIES........................................ 9
14. INDEMNIFICATION....................................................... 11
15. CONTINUING AGREEMENT AND TERMINATION.................................. 13
16. NOTICES............................................................... 14
17. MISCELLANEOUS......................................................... 14
18. SECURITIES INVESTORS PROTECTION ACT................................... 15
19. COUNTERPARTS.......................................................... 16
21. FUNDS................................................................. 16
22. TRUST NOTICE.......................................................... 17
EXHIBITS AND SCHEDULES
EXHIBIT 5 (Securities Loan Agreement - U.S. Government Securities)
SCHEDULE A (Schedule of Fees/Investment Vehicle for Cash Collateral)
SCHEDULE A-1 (Securities Loan Limitation)
SCHEDULE B (Funds)
SCHEDULE 8.1 (Acceptable Forms of Collateral)
SECURITIES LENDING AUTHORIZATION AGREEMENT
Agreement dated the 1st day of September, 2005 between IXIS ADVISOR FUNDS TRUST
I, IXIS ADVISOR FUNDS TRUST II, IXIS ADVISOR FUNDS TRUST III, IXIS ADVISOR
FUNDS TRUST IV, IXIS ADVISOR CASH MANAGEMENT TRUST, ▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDS I, and
▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDS II , each on behalf of its respective series listed on
Schedule B, severally and not jointly, each a registered management investment
company organized and existing under the laws of Massachusetts (the "Trusts,"
and each a "Trust"), and STATE STREET BANK AND TRUST COMPANY, its affiliates or
subsidiaries ("State Street"), setting forth the terms and conditions under
which State Street is authorized to act on behalf of the Trusts with respect to
the lending of certain securities of the Trusts held by State Street as
trustee, agent or custodian.
This Agreement shall be deemed for all purposes to constitute a separate and
discrete agreement between State Street and each of the series of shares of the
Trusts as listed on Schedule B to this Agreement (each a "Fund" and
collectively, the "Funds") as it may be amended by the parties, and no series
of shares of the Trusts shall be responsible or liable for any of the
obligations of any other series of the Trusts under this Agreement or
otherwise, notwithstanding anything to the contrary contained herein. This
Agreement will be effective with respect to each Fund on the date set forth
opposite each Fund's name on the attached Schedule B-1.
NOW, THEREFORE, in consideration of the mutual promises and of the mutual
covenants contained herein, each of the parties does hereby covenant and agree
as follows:
1. Definitions. For the purposes hereof:
(a) "Available Securities" means the securities of the Funds that are
available for Loans pursuant to Section 3.
(b) "Borrower" means any of the entities to which Available Securities may
be loaned under a Securities Loan Agreement, as described in Section 4.
(c) "Collateral" means collateral delivered by a Borrower to secure its
obligations under a Securities Loan Agreement.
(d) "Investment Manager" when used in any provision, means the person or
entity who has discretionary authority over the investment of the Available
Securities to which the provision applies.
(e) "Loan" means a loan of Available Securities to a Borrower.
(f) "Loaned Security" shall mean any "security" which is delivered as a Loan
under a Securities Loan Agreement; provided that, if any new or different
security shall be exchanged for any
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Loaned Security by recapitalization, merger, consolidation, or other corporate
action, such new or different security shall, effective upon such exchange, be
deemed to become a Loaned Security in substitution for the former Loaned
Security for which such exchange was made.
(g) "Market Value" of a security means the market value of such security
(including, in the case of a Loaned Security that is a debt security, the
accrued interest on such security) as determined by the independent pricing
service designated by State Street, or such other independent sources as may be
selected by State Street on a reasonable basis, provided that the Market Value
of a Loaned Security shall mean the value of that security as calculated for
purposes of determining the Fund's net asset value.
(h) "Securities Loan Agreement" means the agreement between a Borrower and
State Street (on behalf of the Funds) that governs Loans, as described in
Section 5.
(i) "Replacement Securities" means securities of the same issuer, class and
denomination as Loaned Securities.
2. Appointment of State Street.
Each Fund hereby appoints and authorizes State Street, its affiliates or
subsidiaries, as its agent to lend Available Securities to Borrowers in
accordance with the terms of this Agreement. State Street shall have the
responsibility and authority to do or cause to be done all acts State Street
shall determine to be desirable, necessary, or appropriate to implement and
administer this securities lending program. Each Fund agrees that State Street
is acting as a fully disclosed agent and not as principal in connection with
the securities lending program. State Street may take action as agent of the
Fund on an undisclosed or a disclosed basis.
Each Fund also authorizes State Street, its affiliates or subsidiaries, as
its agent, to enter into fee for holds arrangements with respect to certain
Available Securities. State Street will, in return for a fee from the Borrower,
hold and reserve certain Available Securities and refrain from lending such
Available Securities to any third party without the Borrower's permission,
provided, however, that the fee for holds arrangements shall not restrict or
otherwise affect the Fund's ownership rights with regard to the Available
Securities, and the Fund shall have the right to terminate any such arrangement
at any time. The fee from the Borrower shall be allocated between State Street
and the Fund in accordance with Schedule A.
3. Securities to be Loaned.
All of the Fund's securities held by State Street as agent, trustee or
custodian shall be subject to this securities lending program and constitute
Available Securities hereunder, except for one percent (1%) of the shares or
other units or principal amount owned by the Fund of any class or series of
issuer's securities and except for those securities which the Fund or the
Investment Manager specifically identifies herein or in notices to State Street
as not being Available Securities. In addition, no Loans shall be made on
behalf of a particular Fund if, as a result, the aggregate value of all Loans
of such Fund exceeds the percentage of the value of its total assets as shown
for such Fund on Schedule A-1. In the absence of any such identification herein
or other notices identifying specific securities as not being Available
Securities (and except for the one percent (1%) exclusion set forth immediately
above), State Street shall have no authority or responsibility for determining
whether any of the Fund's securities should be excluded from the securities
lending program.
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4. Borrowers.
The Available Securities may be loaned to any Borrower identified on the
Schedule of Approved Borrowers agreed to by State Street and the Funds in
writing from time to time. Such Schedule of Approved Borrowers may be modified
from time to time by the written agreement of State Street and the Fund.
5. Securities Loan Agreements.
Each Fund authorizes State Street to enter into one or more Securities Loan
Agreements with such Borrowers as may be selected by State Street. Each
Securities Loan Agreement shall have such terms and conditions as State Street
may negotiate with the Borrower. Certain terms of individual Loans, including
rebate fees to be paid to the Borrower for the use of cash Collateral, shall be
negotiated at the time a Loan is made. A form of the Securities Loan Agreement
provided to U.S. domiciled Borrowers that want to borrow U.S. Government
Securities is attached hereto as Exhibit 5. Copies of other forms of Securities
Loan Agreements to be entered into between State Street and Borrowers shall be
provided promptly to a Fund upon its request. State Street agrees not to revise
such form in any way that is material or adverse to the interests of the Funds.
6. Loans of Available Securities.
State Street shall be responsible for determining whether any Loans shall be
made and shall have the authority to terminate any Loan in its discretion, at
any time and without prior notice to the Fund.
Each Fund acknowledges that State Street administers securities lending
programs for other clients of State Street. State Street will allocate
securities lending opportunities among its clients (including State Street and
its affiliates, to the extent they are lenders of securities), using reasonable
and equitable methods established by State Street from time to time. State
Street does not represent or warrant that any amount or percentage of the
Fund's Available Securities will in fact be loaned to Borrowers. Each Fund
agrees that it shall have no claim against State Street and State Street shall
have no liability arising from, based on, or relating to, loans made for other
clients, or loan opportunities refused hereunder, whether or not State Street
has made fewer or more loans for any other client, and whether or not any loan
for another client, or the opportunity refused, could have resulted in loans
made under this Agreement.
Each Fund also acknowledges that, under the applicable Securities Loan
Agreements, the Borrowers will not be required to return Loaned Securities
immediately upon receipt of notice from State Street terminating the applicable
Loan, but instead will be required to return
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such Loaned Securities within such period of time following such notice as is
specified in the applicable Securities Loan Agreement and in no event later
than within three (3) trading days after notice is received by the Borrower.
Upon receiving a notice from the Fund or the Investment Manager that Available
Securities which have been loaned to a Borrower should no longer be considered
Available Securities (whether because of the sale of such securities or
otherwise), State Street shall notify promptly thereafter the Borrower which
has borrowed such securities that the Loan of such Available Securities is
terminated and that such Available Securities are to be returned within the
time specified by the applicable Securities Loan Agreement and in no event
later than within three (3) trading days after notice is received by the
Borrower.
7. Distributions on and Voting Rights with Respect to Loaned Securities.
Each Fund represents and warrants that it is the beneficial owner of (or
exercises complete investment discretion over) all Available Securities free
and clear of all liens, claims, security interests and encumbrances (except for
any liens, claims, security interests or encumbrances arising under its
custodial arrangements) and no such security has been sold, and that it is
entitled to receive all distributions made by the issuer with respect to Loaned
Securities. Except as provided in the next sentence, all interest, dividends,
and other distributions paid with respect to Loaned Securities shall be
credited to the Fund's account on the date such amounts are delivered by the
Borrower to State Street. Any non-cash distribution on Loaned Securities which
is in the nature of a stock split or a stock dividend shall be added to the
Loan (and shall be considered to constitute Loaned Securities) as of the date
such non-cash distribution is received by the Borrower; provided that the Fund
or Investment Manager may, by giving State Street ten (l0) business days'
notice prior to the date of such non-cash distribution, direct State Street to
request that the Borrower deliver such non-cash distribution to State Street,
pursuant to the applicable Securities Loan Agreement, in which case State
Street shall credit such non-cash distribution to the Fund's account on the
date it is delivered to State Street.
Each Fund acknowledges that it will not be entitled to participate in any
dividend reinvestment program or to vote with respect to Available Securities
that are on loan on the applicable record date for such Available Securities.
Each Fund also acknowledges that any payments of distributions from Borrower
to the Fund are in substitution for the interest or dividend accrued or paid in
respect of Loaned Securities and that the tax and accounting treatment of such
payment may differ from the tax and accounting treatment of such interest or
dividend.
If an installment, call or rights issue becomes payable on or in respect of
any Loaned Securities, State Street shall use all reasonable endeavors to
ensure that any timely instructions from the Fund or its Investment Manager are
complied with, but State Street shall not be required to make any payment
unless the Fund has first provided State Street with funds to make such payment.
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8. Collateral.
(a) Receipt of Collateral. Each Fund hereby authorizes State Street to
receive and to hold, on the Fund's behalf, Collateral from Borrowers to secure
the obligations of Borrowers with respect to any Loan of Available Securities
made on behalf of the Fund pursuant to the Securities Loan Agreements. All
investments of cash Collateral shall be for the account and at the risk of the
Fund. Concurrently with or prior to the delivery of the Loaned Securities to
the Borrower under any Loan, State Street shall receive from the Borrower
Collateral in any of the forms listed on Schedule 8.1. Said Schedule may be
amended from time to time by the mutual consent of State Street and the Fund.
(b) Marking to Market. The initial Collateral received shall have a value of
at least 102% of the Market Value of the Loaned Securities except that the
initial Collateral received for Loans of non-US equity securities shall have a
value of at least 105% of the Market Value of such non-US equity securities,
and the initial Collateral received for Loans of UK Gilts shall have a value of
at least 102.5% of the Market Value of such UK Gilts.
Pursuant to the terms of the applicable Securities Loan Agreement, State
Street shall, in accordance with State Street's reasonable and customary
practices, and prevailing industry practices, mark Loaned Securities and
Collateral to their Market Value each business day based upon the Market Value
of the Collateral and the Loaned Securities at the close of business employing
the most recently available pricing information, and ensure that each
applicable Securities Loan Agreement shall require each Borrower to deliver
additional Collateral (for Collateral comprised of a letter of credit, an
additional or replacement letter of credit) to State Street as follows:
In the case of a Loan of US equity securities or US corporate debt, the
Borrower will be required to deliver additional Collateral in the event that
the Market Value of the Collateral is less than one hundred and two percent
(102%) of the Market Value of the Loaned Securities, and such additional
Collateral together with the Collateral previously delivered shall have a
Market Value of not less than one hundred and two percent (102%) of the Market
Value of the Loaned Securities.
In the case of a Loan of non-US equities, the Borrower will be required to
deliver additional Collateral in the event that the Market Value of the
Collateral is less than one hundred and five percent (105%) of the Market Value
of the Loaned Securities, and such additional Collateral together with the
Collateral previously delivered shall have a Market Value of not less than one
hundred and five percent (105%) of the Market Value of the Loaned Securities.
In the case of a Loan of United States government securities (including
securities issued by US agencies or instrumentalities), or a Loan of sovereign
debt issued by non-US governments, or a Loan of non-US corporate debt, the
Borrower will be required to deliver
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additional Collateral in the event that the Market Value of the Collateral
provided with respect to such Loan is less than one hundred percent (100%) of
the Market Value of the Loaned Securities. Such additional Collateral together
with the Collateral previously delivered with respect to such Loan, and all
other Loans with such Borrower as described in this paragraph, shall have a
Market Value not less than one hundred and two percent (102%) of the Market
Value of all such Loaned Securities.
In the case of a Loan which is comprised of UK Gilts, the Borrower will be
required to deliver additional Collateral in the event that the Market Value of
the Collateral is less than one hundred and two and one-half percent
(102.5%) of the Market Value of the Loaned Securities, and such additional
Collateral together with the Collateral previously delivered shall have a
Market Value not less than one hundred and two and one-half percent (102.5%) of
the Market Value of the Loaned Securities.
(c) Return of Collateral. The Collateral shall be returned to Borrower at
the termination of the Loan upon the return of the Loaned Securities by
Borrower to State Street in accordance with the applicable Securities Loan
Agreement.
(d) Limitations. State Street shall invest cash Collateral in accordance
with the directions set forth in Paragraph 3 of Schedule A. State Street shall
exercise reasonable care, skill, diligence and prudence in the investment of
Collateral. Subject to the foregoing limits and standard of care, State Street
does not assume any market or investment risk of loss with respect to the
investment of cash Collateral. If the value of the cash Collateral so invested
is insufficient to return any and all other amounts due to such Borrower
pursuant to the Securities Loan Agreement, the Fund shall be responsible for
such shortfall as set forth in Section 9.
9. Investment of Cash Collateral and Compensation.
To the extent that a Loan is secured by cash Collateral, such cash
Collateral, including money received with respect to the investment of the
same, or upon the maturity, sale, or liquidation of any such investments, shall
be invested by State Street subject to the directions set forth in Paragraph 3
of Schedule A.
Each Fund acknowledges that the investment guidelines for the State Street
Securities Lending Quality Trust allow for investment in obligations or other
securities of State Street or of any State Street affiliate and investments in
any short-term investment fund, mutual fund, securities lending trust or other
collective investment fund with respect to which State Street and/or its
affiliates provide investment management or advisory, trust, custody, transfer
agency, shareholder servicing and/or other services for which they are
compensated.
Each Fund acknowledges that interests in mutual funds, securities lending
trusts and other collective investment funds, to which State Street and/or one
or more of its affiliates
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provide services are not guaranteed or insured by State Street or any of its
affiliates or by the Federal Deposit Insurance Corporation or any government
agency. Each Fund hereby authorizes the investment manager of the State Street
Securities Lending Quality Trust to purchase or sell investments of the State
Street Securities Lending Quality Trust to or from other accounts held by State
Street or its affiliates.
The net income generated by any investment made pursuant to the first
paragraph of this Section 9 shall be allocated among the Borrower, State
Street, and the Fund, as follows: (a) a portion of such income shall be paid to
the Borrower in accordance with the agreement negotiated between the Borrower
and State Street; (b) the balance, if any, shall be split between State Street,
as compensation for its services in connection with this securities lending
program, and the Fund and such income shall be credited to the Fund's account,
in accordance with the fee split set forth on Schedule A.
In the event the net income generated by any investment made pursuant to the
first paragraph of this Section 9 does not equal or exceed the amount due the
Borrower (the rebate fee for the use of cash Collateral) in accordance with the
agreement between Borrower and State Street, State Street and the Fund shall,
in accordance with the fee split set forth on Schedule A, share the amount
equal to the difference between the net income generated and the amounts to be
paid to the Borrower pursuant to the Securities Loan Agreement. The Fund shall
be solely responsible for any and all other amounts due to such Borrower
pursuant to the Securities Loan Agreement and State Street may debit the Fund's
account accordingly. In the event debits to the Fund's account produce a
deficit therein, State Street shall sell or otherwise liquidate investments
made with cash Collateral and credit the net proceeds of such sale or
liquidation to satisfy the deficit. In the event the foregoing does not
eliminate the deficit, State Street shall have the right to charge the
deficiency to any other account or accounts maintained by the Fund with State
Street.
To the extent that a Loan is secured by non-cash Collateral, the Borrower
shall be required to pay a loan premium, the amount of which shall be
negotiated by State Street. Such loan premium shall be allocated between State
Street and the Fund as follows: (a) a portion of such loan premium shall be
paid to State Street as compensation for its services in connection with this
securities lending program, in accordance with Schedule A hereto; and (b) the
remainder of such loan premium shall be credited to the Fund's account.
Each Fund hereby agrees that it shall reimburse State Street for any and all
funds advanced by State Street on behalf of the Fund as a consequence of the
Fund's obligations hereunder, including the Fund's obligation to return cash
Collateral to the Borrower and to pay any fees due the Borrower, all as
provided in Section 8 hereof.
10. Fee Disclosure.
The fees associated with the investment of cash Collateral in funds
maintained or advised by State Street are disclosed on Schedule A hereto. Said
fees may be changed from time to time by State Street upon notice to the Funds.
An annual report with respect to such funds is available to the Funds, at no
expense, upon request.
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11. Recordkeeping and Reports.
State Street will establish and maintain such records as are reasonably
necessary to account for Loans that are made and the income derived therefrom.
On a monthly basis, State Street will provide the Funds with a statement
describing the Loans made, and the income derived from the Loans, during the
period covered by such statement. Each party to this Agreement shall comply
with the reasonable requests of the other for information necessary to the
requester's performance of its duties in connection with this securities
lending program.
12. Standard of Care
Subject to the requirements of applicable law, State Street shall not be
liable under this Agreement for any loss or damage, including counsel fees and
court costs, whether or not resulting from its acts or omissions to act
hereunder or otherwise, unless the loss or damage arises out of State Street's
negligence, willful misconduct, recklessness, bad faith, misfeasance or
nonfeasance. Except for any liability, loss, or expense arising from or
connected with State Street's negligence, willful misconduct, recklessness, bad
faith, misfeasance or nonfeasance, each Fund agrees to reimburse and hold State
Street harmless from and against any liability, loss and expense, including
reasonable counsel fees, expenses and court costs, arising in connection with
any breach of any representation, covenant or agreement of the Fund contained
in this Agreement or any Loan or arising from or connected with claims of any
third parties, including any Borrower, from and against all taxes and other
governmental charges, and from and against any out-of-pocket or incidental
expenses. State Street may charge any amounts to which it is entitled hereunder
against the relevant Fund's account. Without limiting the generality of the
foregoing, each Fund agrees: (i) that State Street shall not be responsible for
any statements, representations or warranties which any Borrower makes in
connection with any securities loans hereunder, or for the performance by any
Borrower of the terms of a Loan, or any agreement related thereto, and shall
not be required to ascertain or inquire as to the performance or observance of,
or a default under the terms of, a Loan or any agreement related thereto;
(ii) that State Street shall be fully protected in acting in accordance with
the oral or written instructions of any person reasonably believed by State
Street to be authorized by the Board of Trustees of the Trusts to execute this
Agreement on behalf of the Funds, as evidenced by a written certificate
provided to State Street by the Funds (an "Authorized Person"); and (iii) that
in the event of a default by a Borrower under a Loan, State Street shall be
fully protected in acting in its sole discretion in a manner it deems
appropriate.
Each Fund acknowledges that in the event that its participation in
securities lending generates income for the Fund, State Street may be required
to withhold tax or may claim such tax from the Fund as is appropriate in
accordance with applicable law.
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State Street, in determining the Market Value of Securities, including
without limitation, Collateral, may rely upon any recognized pricing service
and shall not be liable for any errors made by such service, unless the choice
of such pricing service by State Street amounts to negligence, willful
misconduct, recklessness, bad faith, misfeasance or nonfeasance on the part of
State Street.
13. Representations and Warranties.
Each party hereto represents and warrants that (a) it has the power to
execute and deliver this Agreement, to enter into the transactions contemplated
hereby, and to perform its obligations hereunder; (b) it has taken all
necessary action to authorize such execution, delivery, and performance;
(c) this Agreement constitutes a legal, valid, and binding obligation
enforceable against it; and (d) the execution, delivery, and performance by it
of this Agreement will at all times comply with all applicable laws and
regulations.
Each Fund represents and warrants that it has made its own determination as
to the tax and accounting treatment of any dividends, remuneration or other
funds received hereunder.
Each Fund represents and warrants that it will immediately notify State
Street, orally and by written notice, of the relevant details of any corporate
actions, private consent offers/agreements and/or any other off-market
arrangements that may require the recall and/or restriction of a security from
lending activity. Such written notices shall be delivered sufficiently in
advance so as to: (a) provide State Street with reasonable time to notify
Borrowers of any instructions necessary to comply with the terms of the
corporate actions, private consent offers/agreements and/or other off-market
arrangements and (b) provide such Borrowers with reasonable time to comply with
any such instructions.
The person executing this Agreement on behalf of each party represents that
he or she has the authority to execute this Agreement on behalf of such party.
In the event that the Funds direct State Street to invest cash Collateral in
one or more of the following cash Collateral investment vehicles: the
(i) Securities Lending Quality Trust, (ii) State Street Global Securities
Lending Trust or (iii) State Street Global Securities Lending
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Euro Trust (each an "Investment Trust", collectively, the "Investment Trusts"),
each Fund also represents and warrants to, and agrees and covenants with the
Trustee of the relevant Investment Trust, as of the date hereof and as of the
date or dates on which any units ("Units") of the Investment Trust are
purchased (collectively, the "Date of Purchase") that:
(a) The Units will be purchased for the account of the Fund for
investment only and not with a view to, or with any intention of, a
distribution or resale thereof, in whole or in part, or the grant of any
participation therein. Each Fund is aware of the risks associated with an
investment in the relevant Investment Trust and has not received any form of
general solicitation or advertising in connection with its decision to purchase
Units.
(b) Each Fund understands that the none of the Investment Trusts will be
registered under the Investment Company Act of 1940 (the "1940 Act") because
each Investment Trust will be qualified as an excepted entity under
Section 3(c)(7) of the 1940 Act. Pursuant to such exception, each Investment
Trust will be beneficially owned only by "qualified purchasers" as defined in
the 1940 Act and the rules and regulations promulgated thereunder and by such
other persons as are otherwise entitled to participate in an entity qualified
under Section 3(c)(7) of the 1940 Act. Accordingly, each Fund hereby represents
that as of the date hereof and as of the Date of Purchase of the Units, the
Fund is either:
[Please check and initial the appropriate box or boxes]
[ ] a qualified institutional buyer as defined in paragraph (a) of
-------- Rule 144A (the "Rule") of the Securities Act of 1933, acting
Initial of for its own account, the account of another qualified
Authorized institutional buyer, or the account of a qualified purchaser,
Signer and is not: (i) a dealer described in paragraph (a)(1)(ii) of
the Rule that owns and invests on a discretionary basis less
than $25 million in securities of issuers that are not
affiliated persons of the dealer; or (ii) a plan referred to
in paragraph (a)(1)(D) or (a)(1)(E) of the Rule, or a trust
fund referred to in paragraph (a)(1)(F) of the Rule that holds
the assets of such a plan, if investment decisions with
respect to the plan are made by the beneficiaries of the plan;
or
[ ] an entity that in the aggregate owns and invests on a
-------- discretionary basis $25 million or more in Qualified Purchaser
Initial of Investments (as defined in Exhibit A). In making this
Authorized determination, the amount of any outstanding indebtedness
Signer incurred to make the Qualified Purchaser Investments held by
the Fund shall be subtracted from the Qualified Purchaser
Investments.
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(c) No beneficiary or investor of the Fund has any right to consult with
regard to, advise or direct the investments made by or on behalf of the Fund
and the Fund has not been organized for the purpose of purchasing Units.
(d) If the Fund: is (A) classified as a partnership for federal income
tax purposes, (B) a "grantor trust," any portion of which is treated as owned
by the grantor(s) or other person(s) under sections 671-679 of the Code, or
(C) an "S corporation" within the meaning of section 1361(a) of the Code (any
of (A), (B), or (C), a "Flow-Through Entity"), the beneficial owners of the
Fund which is a Flow-Through Entity are not investing in the relevant Trust
through the Fund for the principal purpose of avoiding the 100-partner
limitation in Treasury Regulations (S)1.7704-1(h)(i)(ii).
(e) The execution and delivery of this Agreement by the Fund does not
require any approval, authorization, license, or filing from or with any
foreign, federal, state or municipal board or agency on the part of the Fund or
in connection with the offer and sale of the Units on the part of the relevant
Investment Trust or Trustee or any of its affiliates.
(f) No provision of any applicable law, regulation or document by which
the Fund is bound prohibits the purchase of Units in the relevant Investment
Trust by the Fund.
(g) Simultaneously herewith the Fund has completed, executed and
delivered to the relevant Investment Trust a Form W-9 setting forth certain
taxpayer identification information required by the relevant Investment Trust.
Each Fund hereby further represents that it is not subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") with respect to
this Agreement and the Securities; that it qualifies as an "accredited
investor" within the meaning of Rule 501 of Regulation D under the Securities
Act of 1933, as amended; and that the taxpayer identification number(s) and
corresponding tax year-end are as set forth on Schedule B.
14. Indemnification.
(a) If at the time of a default by a Borrower with respect to a Loan
(within the meaning of the applicable Securities Loan Agreement), some or all
of the Loaned Securities under such Loan have not been returned by the
Borrower, and subject to the terms of this Agreement, State Street shall
indemnify the Fund against the failure of the Borrower as follows. State Street
shall purchase a number of Replacement Securities equal to the number of such
unreturned Loaned Securities, to the extent that such Replacement Securities
are available on the open market. Such Replacement Securities shall be
purchased by applying the proceeds of the Collateral with respect to such Loan
to the purchase of such Replacement
11
Securities. Subject to the Fund's obligations pursuant to Section 8 hereof, if
and to the extent that such proceeds are insufficient or the Collateral is
unavailable, the purchase of such Replacement Securities shall be made at State
Street's expense.
(b) If State Street is unable to purchase Replacement Securities
pursuant to Paragraph (a) hereof, State Street shall credit to the Fund's
account an amount equal to the Market Value of the unreturned Loaned Securities
for which Replacement Securities are not so purchased, determined as of (i) the
last day the Collateral continues to be successfully marked to market by State
Street against the unreturned Loaned Securities; or (ii) the next business day
following the day referred to in (i) above, if the Market Value is higher on
such date.
(c) In addition to making the purchases or credits required by
Paragraphs (a) and (b) hereof, State Street shall credit to the Fund's account
the value of all distributions on the Loaned Securities (not otherwise credited
to the Fund's accounts with State Street), for record dates which occur before
the date that State Street purchases Replacement Securities pursuant to
Paragraph (a) or credits the Fund's account pursuant to Paragraph (b).
(d) Any credits required under Paragraphs (b) and (c) hereof shall be
made by application of the proceeds of the Collateral, if any, that remains
after the purchase of Replacement Securities pursuant to Paragraph (a). If and
to the extent that the Collateral is unavailable or the value of the proceeds
of the remaining Collateral is less than the value of the sum of the credits
required to be made under Paragraphs (b) and (c), such credits shall be made at
State Street's expense.
(e) If after application of Paragraphs (a) through (d) hereof,
additional Collateral remains or any previously unavailable Collateral becomes
available or any additional amounts owed by the Borrower with respect to such
Loan are received from the Borrower, State Street shall apply the proceeds of
such Collateral or such additional amounts first to reimburse itself for any
amounts expended by State Street pursuant to Paragraphs (a) through (d) above,
and then to credit to the Fund's account all other amounts owed by the Borrower
to the Fund with respect to such Loan under the applicable Securities Loan
Agreement.
(f) In the event that State Street is required to make any payment
and/or incur any loss or expense under this Section, State Street shall, to the
extent of such payment, loss, or expense, be subrogated to, and succeed to, all
of the rights of the Fund against the Borrower under the applicable Securities
Loan Agreement.
(g) The provisions of this Section 14 shall not apply to losses
attributable to war, riot, revolution, acts of government or other causes
beyond the reasonable control or apprehension of State Street. For the sake of
clarity, the parties agree that "causes beyond the reasonable control or
apprehension of State Street" shall not include a default by a Borrower in
returning when due some or all of the Loaned Securities that are the subject of
any Loan or Borrower otherwise failing to perform its obligations under the
applicable Securities Loan Agreement.
12
15. Continuing Agreement and Termination.
It is the intention of the parties hereto that this Agreement shall constitute
a continuing agreement in every respect and shall apply to each and every Loan,
whether now existing or hereafter made. The Funds and State Street may each at
any time terminate this Agreement upon five (5) business days' written notice
to the other to that effect. The only effects of any such termination of this
Agreement will be that (a) following such termination, no further Loans shall
be made hereunder by State Street on behalf of the Funds, and (b) State Street
shall immediately terminate any and all outstanding Loans. The provisions
hereof shall continue in full force and effect in all other respects until all
Loans have been terminated and all obligations satisfied as herein provided.
State Street does not assume any market or investment risk of loss associated
with the Fund's change in cash Collateral investment vehicles or termination
of, or change in, its participation in this securities lending program and the
corresponding liquidation of cash Collateral investments. State Street shall
immediately terminate any Loan upon receipt of written instructions to do so
from the Funds.
13
16. Notices.
Except as otherwise specifically provided herein, notices under this
Agreement may be made orally, in writing, or by any other means mutually
acceptable to the parties. If in writing, a notice shall be sufficient if
delivered to the party entitled to receive such notices at the following
addresses:
If to the Funds:
c/o IXIS Asset Management Advisors, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Fund Administration, Dept. Head
with a copy to: General Counsel
Fax ▇▇▇-▇▇▇-▇▇▇▇
If to State Street:
State Street Bank and Trust Company
Securities Finance
State Street Financial Center
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-2900
or to such other addresses as either party may furnish the other party by
written notice under this section.
Whenever this Agreement permits or requires the Funds to give notice to,
direct, provide information to State Street, such notice, direction, or
information shall be provided to State Street on the Funds' behalf by any
individual designated for such purpose by the Funds in a written notice to
State Street. This Agreement shall be considered such a designation of the
person executing the Agreement on the Funds' behalf. After State Street's
receipt of such a notice of designation and until its receipt of a notice
revoking such designation, State Street shall be fully protected in relying
upon the notices, directions, and information given by such designee.
17. Miscellaneous.
This Agreement supersedes any other agreement between the parties or any
representations made by one party to the other, whether oral or in writing,
concerning Loans of Available Securities by State Street on behalf of the
Funds. Subject to the foregoing, this Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their
14
respective heirs, representatives, successors, and assigns. This Agreement
shall be governed and construed in accordance with the laws of The Commonwealth
of Massachusetts. Each party hereby irrevocably submits to the jurisdiction of
any Massachusetts state or Federal court sitting in The Commonwealth of
Massachusetts in any action or proceeding arising out of or related to this
Agreement and hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such Massachusetts state or
Federal court except that this provision shall not preclude any party from
removing any action to Federal court. Each party hereby irrevocably waives, to
the fullest extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding. Each Fund hereby
irrevocably appoints ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq., General Counsel of IXIS Asset
Management Advisors, L.P., as its agent to receive on its behalf service of
copies of the summons and complaint and any other process which may be served
in any such action or proceeding (the "Process Agent"). Such service may be
made by mailing or delivering a copy of such process, in care of the Process
Agent at the above address. Each Fund hereby irrevocably authorizes and directs
the Process Agent to accept such service on its behalf. As an alternative
method of service, each Fund also irrevocably consents to the service of any
and all process in any such action or proceeding by the mailing of copies of
such process to the Funds at their address specified in Section 16 hereof. Each
Fund agrees that a final judgment in any such action or proceeding, all appeals
having been taken or the time period for such appeals having expired, shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. The provisions of this Agreement are
severable and the invalidity or unenforceability of any provision hereof shall
not affect any other provision of this Agreement. If in the construction of
this Agreement any court should deem any provision to be invalid because of
scope or duration, then such court shall forthwith reduce such scope or
duration to that which is appropriate and enforce this Agreement in its
modified scope or duration.
18. Securities Investors Protection Act of 1970 Notice.
EACH FUND IS HEREBY ADVISED AND ACKNOWLEDGES THAT THE PROVISIONS OF THE
SECURITIES INVESTOR PROTECTION ACT OF 1970 MAY NOT PROTECT THE FUND WITH
RESPECT TO THE LOAN OF SECURITIES HEREUNDER AND THAT, THEREFORE, THE COLLATERAL
DELIVERED TO THE FUND MAY CONSTITUTE THE ONLY SOURCE OF SATISFACTION OF THE
BROKER'S OR DEALER'S OBLIGATION IN THE EVENT THE BROKER OR DEALER FAILS TO
RETURN THE SECURITIES.
15
19. Counterparts.
The Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but such counterparts shall, together,
constitute only one (1) instrument.
20. Modification.
This Agreement shall not be modified except by an instrument in writing
signed by the parties hereto.
21. Funds. This Agreement is an agreement entered into between State Street and
each Trust with respect to each Fund. With respect to any obligation of the
Trusts on behalf of any Fund arising out of this Agreement, State Street shall
look for payment or satisfaction of such obligation solely to the assets of the
Fund to which such obligation relates as though State Street had separately
contracted with each Trust by separate written instrument with respect to such
Fund. Furthermore, unless the context otherwise requires, any reference in this
Agreement to any actions to be taken by the Trusts shall be deemed to refer to
duties and obligations with respect to such respective Fund. If a Trust selects
additional Funds for which it seeks to employ State Street as a securities
lending agent hereunder, that Trust shall notify State Street in writing. Upon
written acceptance by State Street, such additional Fund or Funds shall become
subject to the provisions of this Agreement to the same extent as the existing
Funds, except to the extent that such provisions (including those relating to
the compensation and expenses payable by the relevant Trust and its Funds) may
be modified with respect to each additional Fund in writing by such Trust and
State Street at the time of the addition of the Fund.
16
22. Trust Notice. A copy of each Agreement and Declaration of Trust, as
amended, establishing the Trusts is on file with the Secretary of State of the
Commonwealth of Massachusetts, and notice is hereby given that this Agreement
is executed on behalf of the Trusts by the officers of the Trusts as officers
and not individually and that the obligations of or arising out of this
Agreement are not binding upon any of the trustees, officers or shareholders
individually but are binding only upon the assets and property belonging
respectively to the respective Fund(s).
IXIS ADVISOR FUNDS TRUST I, IXIS
ADVISOR FUNDS TRUST II, IXIS ADVISOR
FUNDS TRUST III, IXIS ADVISOR FUNDSTRUST
IV, IXIS ADVISOR CASH MANAGEMENT
TRUST, ▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDS I, and
▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDS II, each on behalf of
its respective series as listed on
Schedule B, severally and not jointly
Name: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Treasurer
STATE STREET BANK AND TRUST COMPANY
Name: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
---------------------------------
By: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
▇▇▇: Executive Vice President
17
EXHIBIT 5
This Schedule is attached to and made part of the Securities Lending
Authorization Agreement, dated the 1st day of September 2005 between IXIS
ADVISOR FUNDS TRUST I, IXIS ADVISOR FUNDS TRUST II, IXIS ADVISOR FUNDS TRUST
III, IXIS ADVISOR FUNDS TRUST IV, IXIS ADVISOR CASH MANAGEMENT TRUST, ▇▇▇▇▇▇
▇▇▇▇▇▇ FUNDS I, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDS II, ON BEHALF OF ITS RESPECTIVE SERIES
AS LISTED ON SCHEDULE B, SEVERALLY AND NOT JOINTLY (the "Funds") and STATE
STREET BANK AND TRUST COMPANY ("State Street").
SECURITIES LOAN AGREEMENT - U.S. GOVERNMENT SECURITIES
The attached document contains information which is confidential and
proprietary to State Street Bank and Trust Company ("State Street"). It is
being provided for the exclusive purpose of allowing you to assess
participation in a securities lending program operated by State Street. Its use
for any other purpose or its distribution to anyone other than your own
personnel engaged in this assessment is prohibited without State Street's prior
written permission.
This document is the current standard agreement which forms the basis of
negotiations with potential borrowers under State Street's securities lending
program. During the course of such negotiations with various borrowers, State
Street may in its discretion modify this document in whole or part.
SECURITIES LOAN AGREEMENT
(United States Government Securities)
Between
-----------------
And
STATE STREET BANK AND TRUST AND COMPANY
TABLE OF CONTENTS
PAGE
----
DEFINITIONS 1
1. LOAN OF SECURITIES.................................................... 2
2. DELIVERIES AND TREATMENT OF COLLATERAL................................ 3
3. DELIVERIES AND TREATMENT OF BORROWED SECURITIES....................... 4
4. MARKS TO MARKET; MAINTENANCE OF COLLATERAL............................ 5
5. FEES.................................................................. 6
6. REPRESENTATIONS....................................................... 7
7. COVENANTS............................................................. 8
8. TERMINATION OF LOAN WITHOUT DEFAULT................................... 9
9. EVENTS OF DEFAULT..................................................... 10
10. LENDER'S REMEDIES ON BORROWER'S DEFAULT............................... 11
11. BORROWER'S REMEDIES ON LENDER'S DEFAULT............................... 12
12. RESERVED.............................................................. 12
13. INDEMNIFICATION....................................................... 13
14. WAIVER................................................................ 13
15. CONTINUING AGREEMENT; TERMINATION..................................... 13
16. NOTICES............................................................... 13
17. TIME.................................................................. 14
18. SECURITIES CONTRACTS.................................................. 14
19. SUPERSEDING AGREEMENT................................................. 14
20. ASSIGNMENTS........................................................... 14
21. GOVERNING LAW; JURISDICTION; SERVICE OF PROCESS....................... 14
22. SEVERABILITY.......................................................... 15
23. MODIFICATION.......................................................... 16
SECURITIES LOAN AGREEMENT
(United States Government Securities)
Agreement dated the __ day of __________, 200 between ____________ of
____________, a registered broker-dealer, registered government securities
dealer, or a bank ("Borrower") and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company ("Lender"), acting in its capacity as trustee,
custodian, or agent for various employee benefit plans, endowment funds,
custodial accounts, and other clients (the "Clients"), setting forth the terms
and conditions under which ▇▇▇▇▇▇, from time to time and on behalf of the
Clients, may lend to Borrower, against the receipt of collateral, certain
securities issued or guaranteed by the United States government or its agencies.
Definitions.
For the purposes hereof:
"Affiliate" means (i) any person directly or indirectly, through one or more
intermediaries, controlling, controlled by, or under common control with
another person; (ii) any officer, director, or partner, employee or relative
(as defined in Section 3(15) of ERISA) of such other person; and (iii) any
corporation or partnership of which such other person is an officer, director
or partner. For purposes of this definition the term "control" means the power
to exercise a controlling influence over the management or policies of a person
other than an individual.
"Borrowed Security" shall mean any "security" (as defined in the Exchange
Act) which is a U.S. Security, and is delivered as a Loan hereunder, until such
security is credited through the Federal Reserve book-entry system, to the
Lender's account at the Federal Reserve Bank of Boston or until the security is
replaced by purchase. For purposes of the return of Borrowed Securities by
Borrower pursuant to Section 8 or the purchase of securities pursuant to
Section 10, such term shall include securities of the same issuer, class, and
quantity as the Borrowed Securities.
"Business Day" shall mean any day recognized as a settlement day by the
Federal Reserve System and on which Lender is open for business to the public.
"Collateral" shall mean, whether now owned or hereafter acquired, (a) that
collateral permitted by the SEC under the Exchange Act and delivered to Lender
pursuant to Section 3 or 4, and (b) all accounts in which such collateral is
deposited and all securities and the like in which all cash collateral is
invested or reinvested.
"Loan" shall mean a loan of securities hereunder.
1
"Margin Percentage" shall mean one hundred and two percent (102%) or such
greater percentage as is agreed to by the parties pursuant to Section 1.1.
"Market Value" of a security means the fair market value of such security
(including, in the case of any Borrowed Security that is a debt security, the
accrued interest on such security) as determined by the independent pricing
service designated by ▇▇▇▇▇▇, or by such other independent sources as may be
selected on a reasonable basis by ▇▇▇▇▇▇.
"Prime Rate" shall mean the prime rate as quoted in the Wall Street Journal,
New York Edition, for the business day preceding the date on which such
determination is made. If more than one rate is so quoted, the Prime Rate shall
be the average of the rates so quoted.
"Replacement Value" shall mean the price, including any brokerage or other
expenses and accrued interest, at which a like amount of securities identical
to the Borrowed Securities could be purchased in the principal market for such
securities at the time of the Lender's election under Section 10.1 hereof.
"U.S. Security" means a security issued or guaranteed by the United States
government or any of its agencies.
▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ as the parties hereto agree as follows:
1. Loan of Securities.
1.1 Upon request of ▇▇▇▇▇▇▇▇, Lender may, from time to time, in its
discretion and on behalf of the Clients, lend securities to Borrower against
the receipt of collateral delivered by ▇▇▇▇▇▇▇▇. The parties shall agree on the
terms of each Loan, including the identity and amount of the securities to be
lent, the basis of compensation, and the type and amount of Collateral to be
delivered by Borrower (subject to the terms and conditions of this Agreement),
which terms may be amended during the period of the Loan only by mutual
agreement of the parties hereto.
1.2 Loans, all applicable terms and conditions thereof, and amendments and
activity, if any, with respect thereto, shall be evidenced by ▇▇▇▇▇▇'s records
pertaining to such Loans maintained by Lender in the regular course of its
business and such records shall represent conclusive evidence thereof except
for manifest error or willful misconduct. ▇▇▇▇▇▇ will send Borrower monthly
statements of outstanding Loans showing Loan activity which ▇▇▇▇▇▇▇▇ agrees to
examine promptly and to advise Lender of any error or exceptions. ▇▇▇▇▇▇▇▇'s
failure to so advise Lender within twenty (20) days after delivery of any such
statement shall be deemed to be Borrower's admission of the accuracy and
correctness of the contents thereof and Borrower shall be fully bound thereby.
1.3 Notwithstanding any other provisions in this Agreement with respect to
when a Loan occurs, a Loan hereunder shall not occur until the Borrowed
Securities and the
2
Collateral therefor are delivered. If, on any Business Day, ▇▇▇▇▇▇▇▇ delivers
Collateral, as provided in Section 2.1 hereunder, and ▇▇▇▇▇▇ does not deliver
the Borrowed Securities, Borrower shall have the absolute right to the prompt
return of the Collateral; and if, on any Business Day, Lender delivers Borrowed
Securities and Borrower does not deliver Collateral as provided in Section 2.1
hereunder, Lender shall have the absolute right to the prompt return of the
Borrowed Securities.
2. Deliveries and Treatment of Collateral.
2.1 Concurrently with the receipt of the Borrowed Securities, Borrower shall
deliver to Lender Collateral in an amount not less than the Margin Percentage
of the current Market Value of the Borrowed Securities. The Collateral shall be
delivered by one or both of the following methods, as agreed to by the parties
pursuant to Section 1.1: (a) Borrower delivering U.S. Securities through the
Federal Reserve book-entry system to the account of Lender at the Federal
Reserve Bank of Boston, and/or (b) Borrower delivering federal funds to the
Lender's account at the Federal Reserve Bank of Boston.
2.2 The Collateral delivered by Borrower to Lender, as adjusted pursuant to
Section 4 below, shall be security for the due and punctual performance by
Borrower of any and all of its obligations to the Lender hereunder and under
any other securities loan agreement between Borrower and Lender, now or
hereafter arising, and Borrower hereby pledges with, assigns to, and grants
Lender a continuing first security interest in, and a lien upon, the
Collateral. Such first security interest shall attach upon the delivery of the
Collateral to Lender, shall survive the termination of this Agreement, and
shall cease only upon the redelivery of the Collateral to Borrower subsequent
to the return of the Borrowed Securities to the Lender. In addition to the
rights and remedies given to Lender hereunder, ▇▇▇▇▇▇ shall have all the rights
and remedies of a secured party under the Uniform Commercial Code of
Massachusetts.
2.3 It is understood that Lender may use or invest the Collateral, to the
extent that such Collateral consists of cash. Such use or investment shall be
at Lender's risk and, subject to the payment of an agreed rebate fee pursuant
to Section 5.2, Lender shall be entitled to retain all income and profits
therefrom and shall bear all losses therefrom. Except as provided in
Section 10, Lender may not pledge, repledge, hypothecate, rehypothecate, lend,
or relend the Collateral, to the extent such Collateral consists of other than
cash. However, the Lender may commingle and hold non-cash Collateral in bulk.
2.4 With the approval of Lender, Borrower may at any time substitute for any
securities held by Lender as Collateral for the Borrowed Securities other
Collateral with respect to the Borrowed Securities of equal current Market
Value to the Securities for which it is to be substituted. Prior to the
maturity of any U.S. Security that is delivered to the Lender as Collateral,
the Borrower shall replace such U.S. Security with other Collateral acceptable
to the Lender and of equal current Market Value to the U.S. Security for which
it is to be substituted. Substituted collateral shall be considered Collateral
for all purposes hereof.
3
2.5 Borrower shall be entitled to receive all distributions made on or in
respect of non-cash Collateral the record or payable dates for which are during
the term of the Loan and which are not otherwise received by Borrower, to the
full extent it would be so entitled if the Collateral had not been delivered to
Lender; provided, however, that the amount, type or value of such distribution
which Borrower is entitled to receive hereunder shall not exceed the amount,
type and value received by State Street or its agents. Any distributions made
on or in respect of such Collateral which Borrower is entitled to receive under
this section shall be paid by Lender to Borrower forthwith upon receipt by
▇▇▇▇▇▇, so long as Borrower is not in Default at the time of such receipt.
2.6 Except as provided in Sections 10 and 11 hereunder, ▇▇▇▇▇▇ shall be
obligated to return the Collateral to Borrower upon the return to Lender of the
Borrowed Securities.
2.7 As further security for the due and punctual performance by Borrower of
any and all obligations to Lender hereunder, or under any other securities loan
agreement between Borrower and Lender, Borrower hereby grants and transfers to
Lender a lien upon and a security interest in any and all property (together
with the proceeds thereof) in which the Borrower at any time has rights and
which at any time has been delivered, transferred, or deposited in or credited
to an account with, the Lender or otherwise at any time is in the possession or
under the control or recorded on the books of the Lender, whether expressly as
collateral or for safekeeping or for any other or different purpose, including
(without limitation) Collateral delivered as security under any other
securities loan agreement between Borrower and Lender and any property which
may be in transit by mail or carrier for any purpose, or converted or affected
by any documents in the Lender's possession.
3. Deliveries and Treatment of Borrowed Securities.
3.1 Lender shall deliver the Borrowed Securities to Borrower by causing the
Borrowed Securities to be credited to ▇▇▇▇▇▇▇▇'s account and debited from
▇▇▇▇▇▇'s account within the Federal Reserve book-entry system, and such
crediting and debiting shall result in receipt by Borrower and Lender of a
notice of such crediting and debiting, which notice shall constitute a schedule
of the Borrowed Securities.
3.2 Except as provided in Section 3.3, Borrower shall exercise all of the
incidents of ownership with respect to the Borrowed Securities, including the
right to transfer the Borrowed Securities to others, until the Borrowed
Securities are returned to Lender in accordance with the terms hereof.
3.3 Lender shall be entitled to receive all distributions (including
payments upon maturity and other redemption) made on or in respect of the
Borrowed Securities, the record and/or payable dates for which are during the
term of the Loan and which are not otherwise
4
received by ▇▇▇▇▇▇, to the full extent it would be so entitled if the Borrowed
Securities had not been lent to Borrower, including, without limitation,
interest payments, and any other distributions or other income. Payment of each
such distribution shall be made by delivery of federal funds to the Lender's
account at the Federal Reserve Bank of Boston on payable, maturity, or
redemption date of such distribution.
4. Marks to Market; Maintenance of Collateral.
4.1 Borrower shall daily mark to market any Loans hereunder and in the event
that at the close of trading on any day the Market Value of all the Collateral
delivered by Borrower to Lender with respect to any Loan hereunder shall be
less than one hundred percent (100%) of the Market Value of all Borrowed
Securities outstanding with respect to such Loan, Borrower shall deliver to
Lender additional Collateral by the close of the next Business Day so that the
Market Value of additional Collateral when added to Market Value of the
Collateral with respect to such Loan shall equal at least the Margin Percentage
of the Market Value of the Borrowed Securities outstanding with respect to such
Loan. Such additional Collateral shall be delivered as provided in Section 3.1
above.
4.2 In the event that at the close of trading on any day the Market Value of
all the Collateral delivered by Borrower to Lender with respect to any Loan
hereunder shall be less than the Margin Percentage of the Market Value of all
the Borrowed Securities outstanding with respect to such Loan, Lender may, by
notice to Borrower, demand that Borrower deliver to Lender additional
Collateral so that the Market Value of such additional Collateral when added to
the Market Value of the Collateral with respect to such Loan shall equal at
least the Margin Percentage of the Market Value of the Borrowed Securities
outstanding with respect to such Loan. Such delivery is to be made by the close
of business of the day of ▇▇▇▇▇▇'s notice to Borrower if such notice is given
before 11:30 a.m. on a Business Day. If ▇▇▇▇▇▇'s notice is given after 11:30
a.m. on a Business Day or is given on a day other than a Business Day, such
delivery is to be made by the close of business of the next Business Day,
unless (a) such notice has been superseded by a proper demand made pursuant to
this Section 4.2 or Section 4.3 given before 11:30 a.m. of that next Business
Day or (b) a greater amount of additional Collateral is required to be
delivered on that next Business Day pursuant to Section 4.1. Such additional
Collateral shall be delivered as provided in Section 3.1 above.
4.3 In the event that at the close of trading on any day the Market Value of
all the Collateral delivered by Borrower to Lender with respect to any Loan
hereunder shall be greater than the Margin Percentage of the Market Value of
all the Borrowed Securities outstanding with respect to such Loan, Borrower
may, by notice to Lender, demand that Lender redeliver to Borrower such amount
of Collateral as may be selected by Borrower, so long as the Market Value of
the remaining Collateral equals at least the Margin Percentage of the Market
Value of the Borrowed Securities outstanding with respect to such Loan. Such
redelivery is to be made by the close of business of the day of ▇▇▇▇▇▇▇▇'s
notice to Lender if such notice is given before 11:30 a.m. on a Business Day.
If ▇▇▇▇▇▇▇▇'s notice is given after 11:30 a.m. on a Business Day or is given on
a day other than a Business Day, such redelivery
5
is to be made by the close of business of the next Business Day, unless
(a) such notice has been superseded by a proper demand made pursuant to
Section 4.2 or this Section 4.3 given before 11:30 a.m. of that next Business
Day, or (b) additional Collateral is required to be delivered on that next
Business Day pursuant to Section 4.1. Such Collateral shall be delivered as
provided in Section 3.1 above.
5. Fees.
5.1 When the agreement to lend securities is made, the parties shall agree
on the basis of compensation to be paid in respect of the Loan.
5.2 To the extent that a Loan of Borrowed Securities is collateralized by
cash, the parties may agree that ▇▇▇▇▇▇'s compensation shall consist of the
right to use and invest such cash Collateral, and that, in consideration for
such right to use and invest cash Collateral, Lender will pay Borrower a loan
rebate fee computed daily for each such Loan and based on the amount of cash
Collateral delivered with respect to such Loan. The amount of such loan rebate
fee shall be computed daily from the first Business Day that cash Collateral is
delivered to Lender, through and including the earliest of: (a) the date next
preceding the date that such cash Collateral is returned to Borrower; (b) the
date of a Default by Borrower; and (c) the date Lender gives notice of
termination pursuant to Section 8.2, provided that the parties may mutually
agree that a loan rebate fee will be paid for all or an agreed upon number of
days after such notice is given (but in no event for a period beyond the
earlier of the dates described in clauses (a) and (b) of this sentence).
Provided the Borrower is not in Default, such loan rebate fee shall be payable
upon the date the Borrowed Securities are returned to the Lender upon
termination of the Loan.
5.3 To the extent that a Loan of Borrowed Securities is collateralized by
other than cash, the parties may agree that Borrower shall pay to Lender a loan
premium based on the par value of the borrowed securities. The amount of such
loan premium shall be computed from the first Business Day that the Borrowed
Securities are delivered to Borrower, through and including the date next
preceding the date that securities identical to the Borrowed Securities are
returned to Lender pursuant to Section 8 or the date that Lender makes a
purchase of securities or an election to treat the Borrowed Securities as sold
pursuant to Section 10.1 Any fee payable by Borrower hereunder shall be payable
upon the earliest of the following: (a) the seventh Business Day of the month
following the month in which the fee was incurred; or (b) immediately, in the
event of a Default hereunder by ▇▇▇▇▇▇▇▇; or (c) the date this Agreement is
terminated.
5.4 All transfer taxes and transfer fees with respect to any transfers
hereunder of Borrowed Securities shall be paid by Borrower.
6
6. Representations of the Parties.
The parties hereby make the following representations and warranties, which
shall continue during the term of any Loan hereunder;
6.1 Each party hereto represents and warrants that (a) it has the power to
execute and deliver this Agreement, to enter into the Loans contemplated
hereby, and to perform its obligations hereunder; (b) it has taken all
necessary action to authorize such execution, delivery, and performance; and
(c) this Agreement constitutes a legal, valid, and binding obligation
enforceable against it (in the case of Lender, in its capacity as trustee,
custodian or agent of the Clients).
6.2 Each party hereto represents and warrants that the execution, delivery
and performance by it of this Agreement and each Loan hereunder will at all
times comply with all applicable laws and regulations, including those of
applicable securities regulatory and self-regulatory organizations.
6.3 Each party hereto represents and warrants that it has made its own
determination as to the tax treatment of any dividends, remuneration, or other
funds received hereunder.
6.4 Borrower represents and warrants that (a) it is a corporation,
partnership, or other entity duly organized and validly existing under federal
law or the laws of the state of its organization, (b) it is a broker-dealer
registered under the Securities Exchange Act of 1934 (the "Exchange Act"), a
bank within the meaning of Section 3(a)(6)(A)-(C) of the Exchange Act or a
government securities dealer or a government securities broker as defined in
Section 400.3 of the regulations promulgated by the Department of the Treasury
under Section 15C of the Exchange Act and registered or exempt from
registration pursuant to said Act, (c) it has, or will have at the time of
delivery of any Collateral, the right to grant a first security interest
therein subject to the terms and conditions hereof, and (d) it (or the party to
whom it relends the Borrowed Securities) is borrowing or will borrow the
Borrowed Securities (except for Borrowed Securities that qualify as "exempted
securities" under Regulation T of the Board of Governors of the Federal Reserve
System) for the purpose of making delivery of such securities in the case of
short sales, failure to receive securities required to be delivered, or as
otherwise permitted pursuant to Regulation T.
6.5 Borrower represents that the statements provided to Lender pursuant to
Section 7 fairly represent its financial condition and the financial position
of any parent company and, if the Borrower is a broker or a government
securities dealer or government securities broker, its net capital ratio as of
the date of such statements, and that there has been no material adverse change
in its financial condition or the financial condition of any parent company or
net capital ratio since that date that has not been disclosed in writing to
Lender. Each request by Borrower for a Loan shall constitute a present
representation: (a) that there has been no material adverse change in
Borrower's financial condition or the financial condition of any parent company
that has not been disclosed in writing to Lender, since the date of the most
recent statement furnished to Lender pursuant to Section 7; and (b) that, as
7
of the date of such request for a Loan, if the Borrower is a broker or a
government securities dealer or government securities broker, it is in
compliance with Rule 15c3-1 of the Securities and Exchange Commission ("SEC")
under the Exchange Act as modified, in the case of a Borrower which is a
government securities broker or government securities dealer, by the
regulations promulgated by the Department of the Treasury under Section 15C of
said Act.
6.6 To the extent that ▇▇▇▇▇▇ has provided Borrower with written statements
identifying any of its Clients as employee benefit plans subject to title I of
the Employees Retirement Income Security Act of 1974 ("ERISA"), each request by
Borrower for a Loan shall constitute a present representation that, except as
disclosed in writing by Borrower to Lender, neither Borrower nor any Affiliate
of Borrower is a "fiduciary" (within the meaning of Section 3(21) of ERISA)
with respect to the assets of the Clients so identified that may be Borrowed
Securities hereunder.
[6.7 Borrower represents and warrants that it has an unqualified obligation
to reimburse [name of Guarantor] for the full amount of any and all payments
made or required to be made by [name of Guarantor] in compliance with the Bank
Act (Canada)] Note: Delete unless Borrower's obligations are being guaranteed
by a Canadian Bank
6.7[8] Lender represents and warrants (a) that it is a trust company duly
organized and validly existing under the laws of the Commonwealth of
Massachusetts and (b) that it has, or will have at the time of delivery of any
Borrowed Securities, the authority to deliver, on behalf of its Client(s), the
Borrowed Securities subject to the terms and conditions hereof.
7. Covenants.
7.1 If Borrower is a broker or a government securities dealer or government
securities broker, it makes the covenants set forth in this Section 7.1. Upon
execution of this Agreement, ▇▇▇▇▇▇▇▇ shall deliver to the Lender ▇▇▇▇▇▇▇▇'s
and ▇▇▇▇▇▇▇▇'s parent company's most recent statements required to be furnished
to Borrower's and ▇▇▇▇▇▇▇▇'s parent company's customers by Rule 17a-5(c) and
(d) of the SEC under the Exchange Act as modified, in the case of a Borrower
which is a government securities broker or government securities dealer, by the
regulations promulgated by the Department of the Treasury under Section 15C of
said Act. As long as any Loan is outstanding under this Agreement, Borrower
shall promptly deliver to Lender all such statements subsequently required to
be furnished to Borrower's and Borrower's parent company's customers by such
Rule. Upon execution of this Agreement, Borrower shall also deliver to Lender
Borrower's and Borrower's parent company's most recent financial information
otherwise available to its shareholders, the SEC, or the public, including
(without limitation) the most recent available audited and unaudited statements
of ▇▇▇▇▇▇▇▇'s and Borrower's parent company's financial conditions and any
report of notice required by Rules 17a-5(a)(2)(i) and (ii) and 17a-11 of the
SEC under the Exchange Act as modified, in the case of a Borrower which is a
government securities broker or government securities dealer, by regulations
promulgated by the Department of the
8
Treasury under Section 15C of said Act. As long as any Loan is outstanding
under this Agreement, Borrower will promptly deliver to the Lender all such
financial information subsequently available, and any other financial
information or statements that Lender may reasonably request.
7.2 If Borrower is a Bank, Borrower makes the covenants set forth in this
Section 7.2. Upon execution of this Agreement, Borrower shall furnish to Lender
(i) the most recent available audited statement of ▇▇▇▇▇▇▇▇'s and Borrower's
parent company's financial condition, and (ii) the most recent available
unaudited statement of ▇▇▇▇▇▇▇▇'s and ▇▇▇▇▇▇▇▇'s parent company's financial
condition. As long as any Loan is outstanding under this Agreement, Borrower
will promptly deliver to Lender all such financial information that is
subsequently available, and any other financial information or statements that
Lender may reasonably request.
8. Termination of Loan without Default.
8.1 Borrower may cause the termination of a Loan at any time by returning
the Borrowed Securities to Lender.
8.2 Lender may cause the termination of a Loan by giving notice of
termination of such Loan to Borrower on any Business Day. Upon such notice,
▇▇▇▇▇▇▇▇ shall deliver Borrowed Securities to Lender no later than the earlier
of:
(a) the close of operations of the federal book entry system on the same
Business Day on which Lender gives notice of termination of such Loan to
Borrower, provided that such notice is given to Borrower on or before
9:00 a.m. (Eastern Standard Time); or
(b) the close of operations of the federal book entry system on the
first Business Day following the day on which ▇▇▇▇▇▇ gives notice of
termination of such Loan to Borrower, provided that such notice is given
to Borrower after 9:00 a.m. but before 5:00 p.m. (Eastern Standard Time).
8.3 Borrower's delivery of the Borrowed Securities to Lender pursuant to
Section 8.1 or 8.2 shall be made by causing the account of the Lender at the
Federal Reserve Bank of Boston to be credited with securities identical to the
Borrowed Securities. Upon such delivery by or on behalf of ▇▇▇▇▇▇▇▇, Lender
shall concurrently therewith deliver the Collateral (as adjusted pursuant to
Section 4) to Borrower; provided, however, that if upon the return of the
Borrowed Securities there is not sufficient time for Lender to effect a return
of the Collateral to Borrower through the Federal Reserve Bank of Boston on
that same day, Lender may return such Collateral on the next day such return
can be so effected.
9
9. Events of Default
9.1 All loans between Borrower and Lender may (at the option of the
non-defaulting party, exercised by notice to the defaulting party) be
terminated immediately upon the occurrence of any one or more of the following
events (individually, a "Default"):
(a) if either party fails to return Borrowed Securities or Collateral as
required by Section 8 hereof;
(b) if either party fails to deliver or return Collateral, as required
by Section 4 hereof;
(c) if either party fails to make the payment of distributions as
required by Section 2.5 and 3.3 hereof and such default is not cured within one
Business Day of notice of such failure to Borrower or Lender, as the case may
be;
(d) if either party or any parent company of the Borrower makes a
general assignment for the benefit of creditors, or admits in writing its
inability to pay its debts as they become due, or files or becomes subject to a
petition in bankruptcy or is adjudicated as bankrupt or insolvent, or files or
becomes subject to a petition seeking reorganization, liquidation, dissolution,
or similar relief under any present or future law or regulation, or seeks,
consents to or acquiesces in the appointment of any trustee, receiver, or
liquidator of it or any material part of its properties;
(e) if Borrower (if it is a broker or a government securities dealer or
government securities broker) is suspended or expelled from membership or
participation in the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, or any other securities exchange or
securities association, or if it is suspended from dealing in securities by the
SEC or the Department of the Treasury, or if its authority to deal in
securities is suspended or revoked under any state securities law or regulation;
(f) if Borrower (if it is a Bank) or Lender has its license, charter, or
other authorization necessary to conduct a material portion of its business
withdrawn, suspended or revoked by any applicable federal or state government
of agency thereof;
(g) if it is found that the Borrower has made a material
misrepresentation of its financial condition or the financial condition of any
parent company;
(h) if Borrower (if it is a broker or government securities dealer or
government securities broker) becomes subject to Rule 17a-11 of the SEC under
the Exchange Act as modified, in the case of a Borrower which is a government
securities broker or government securities dealer, by regulations promulgated
by the Department of the Treasury under Section 15C of said Act;
10
(i) if Borrower breaches any covenants, representations, or agreements
herein;
(j) if a final judgment for the payment of money shall be rendered
against Borrower and such judgment shall not have been discharged or its
execution stayed pending appeal within sixty (60) days of entry or such
judgment shall not have been discharged within sixty (60) days of expiration of
any such stay.
9.2 All references to "Lender" in this Agreement shall be construed to
reflect that each Client shall have, in connection with any Loan or Loans
entered into by Lender as agent on its behalf, the rights, responsibilities,
privileges and obligations of a "Lender" directly entering into such Loan or
Loans with Borrower under the Agreement. Both Lender and its Client shall be
deemed "parties" to this Agreement such that all references to Lender in this
Agreement shall be deemed to include references to each Client; provided,
however, a Default by Lender and/or Client with respect to a loan or loans on
behalf of one Client shall be an event of Default by that Client and the
Borrower may not treat all other loans between Borrower and Lender (on behalf
of non-defaulting Clients) as being in Default.
9.3 In the event: (i) Borrower and Lender enter into other securities loan
agreements as well as this Agreement (to govern, for example, borrowing
different security types) and, (ii) Borrower defaults under this Agreement or
under any other securities loan agreements with Lender, the default under that
one agreement would be considered an event of default under all securities loan
agreements between Borrower and Lender. Borrower acknowledges that should it
default under this or any of its other securities loan agreements with Lender,
a surplus of collateral under one loan to Borrower under one securities loan
agreement may be applied to another loan to Borrower under another securities
loan agreement. Borrower further acknowledges that such cross collateralization
applies to loans from all Clients to Borrower so that in the event of default,
collateral from an overcollateralized loan from one Client may be applied to an
undercollateralized loan from another Client.
10. ▇▇▇▇▇▇'s Remedies on ▇▇▇▇▇▇▇▇'s Default.
10.1 In the event of any Default by Borrower under Section 9 hereof, Lender
shall have the right, in addition to any other remedies provided herein or
under applicable law (without further notice to Borrower), at its option either
(a) to purchase a like amount of the Borrowed Securities in any market for such
securities or (b) to elect to treat the Borrowed Securities as having been
purchased by Borrower at a purchase price equal to the Replacement Value.
Lender may apply the Collateral to the payment of such purchase, after
deducting therefrom all amounts, if any, due Lender under this Agreement,
including (without limitation) Sections 2 and 5 hereof. In such event,
▇▇▇▇▇▇▇▇'s obligation to return the Borrowed Securities shall terminate. The
Lender shall not be obligated to assert or enforce any rights, liens or
security interest hereunder or to take any action in reference thereto, and the
Lender may in its discretion at any time relinquish its rights hereunder as to
11
particular property, in each case without thereby affecting or invalidating its
rights hereunder as to all or any other property securing or purporting to
secure the Loans. Borrower shall be liable to Lender for the cost of funds
which Lender must advance to purchase such securities during any stay on the
application of the Collateral (whether such stay is automatic or imposed by a
court or any other governmental agency).
10.2 In the event such purchase price or Replacement Value exceeds the
amount of the Collateral, Borrower shall be liable to Lender for the amount of
such excess (plus all amounts, if any, due to Lender hereunder) together with
interest on all such amounts at the Prime Rate, as it fluctuates from day to
day, on demand from the date of such purchase or election until the date of
payment of such excess. Lender shall have, as security for ▇▇▇▇▇▇▇▇'s
obligation to pay such excess, a first security interest in or right of setoff
against any property of Borrower then held by Lender (in any capacity) and any
other amount payable by ▇▇▇▇▇▇ (in any capacity) to Borrower including, without
limitation, any property of Borrower then held by the Lender under any other
security loan agreement between the Lender and the Borrower. The purchase price
of securities purchased under this Section 10 shall include broker's fees and
commissions and all other reasonable costs, fees, and expenses related to such
purchase. Upon the satisfaction of all of Borrower's obligations hereunder, any
remaining Collateral shall be returned to Borrower.
10.3 This section applies if Borrower is a broker. Without waiving any
rights given to the Lender hereunder, it is understood that the provisions of
the Securities Investor Protection Act of 1970 may not protect the Lender with
respect to Borrowed Securities hereunder and that, therefore, the Collateral
delivered to the Lender may constitute the only source of satisfaction of
▇▇▇▇▇▇▇▇'s obligations in the event Borrower fails to return the Borrowed
Securities.
11. ▇▇▇▇▇▇▇▇'s Remedies on ▇▇▇▇▇▇'s Default.
11.1 In the event of any Default by Lender under Section 9 hereof, Borrower
shall have the right to sell an amount of the Borrowed Securities, in the
principal market for such securities, that will provide proceeds equal in value
to the Market Value of the Collateral on the date of Default. In such event,
Borrower may retain the proceeds of such sale and ▇▇▇▇▇▇'s obligation to return
the Collateral shall terminate. In the event the sale price received from such
securities is less than the value of the Collateral, Lender shall be liable to
Borrower for the amount of any deficiency (plus all amounts, if any, due to
Borrower hereunder). Upon the satisfaction of all ▇▇▇▇▇▇'s obligations
hereunder, any remaining Borrowed Securities shall be returned to Lender.
12. Reserved.
12
13. INDEMNIFICATION.
Borrower hereby agrees to indemnify and hold harmless Lender, each Client,
and in the case of a Client that is an employee benefit plan, the sponsor and
fiduciaries of such plan, from any and all damages, losses, costs, and expenses
(including attorney's fees) that the Lender or any such Client, plan sponsor,
or plan fiduciary may incur or suffer due to the failure of the Borrower to
perform its obligations under this Agreement. This right to indemnification
shall survive the termination of any Loan or of this Agreement.
14. Waiver.
The failure of either party to insist upon strict adherence to any term of
this Agreement on any occasion shall not be considered a waiver or deprive that
party of the right thereafter to insist upon strict adherence to that term of
any other term of this Agreement. All waivers in respect of a Default must be
in writing.
15. Continuing Agreement; Termination.
It is the intention of the parties hereto that, subject to the termination
provisions set forth herein, this Agreement shall constitute a continuing
agreement in every respect and shall apply to each and every Loan, whether now
existing or hereafter made by Lender to Borrower. Borrower and Lender may each
at any time terminate this Agreement upon five (5) days' written notice to the
other to that effect. The sole effect of any such termination of this Agreement
will be that, following such termination, no further Loans by Lender shall be
made or considered made hereunder, but the provisions hereof shall continue in
full force and effect in all other respects until all Loans have been
terminated and all obligations satisfied as herein provided.
16. Notices.
Except as otherwise specifically provided herein, notices under this
Agreement may be made orally, in writing, or by any other means mutually
acceptable to the parties. If in writing, a notice shall be sufficient if
delivered to the party entitled to receive such notices at the following
addresses:
If to Borrower:
--------------------------------------
--------------------------------------
--------------------------------------
If to Lender: State Street Bank and Trust Company
Securities Finance Division
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: U.S. Government Securities Lending Area
13
Telephone and facsimile notices shall be sufficient if communicated to the
party entitled to receive such notice at the following numbers:
If to Borrower:
Telephone Facsimile
___________________________ ___________________________
If to Lender:
Telephone (6l7) 644-BOND(2663) Facsimile (6l7) 644-2667
The parties shall promptly notify each other in writing of any change of
address, addressee, telephone number or facsimile number. ▇▇▇▇▇▇ shall consider
▇▇▇▇▇▇▇▇'s address, addressee, telephone number and facsimile number correct
unless Borrower notifies Lender in writing otherwise.
17. Time.
All times specified herein shall be based on New York City time.
18. Securities Contracts.
Each party hereto agrees that this Agreement and the Loans made hereunder
shall be "securities contracts" for purposes of the Bankruptcy Code and any
bankruptcy proceeding thereunder.
19. Superseding Agreement.
This Agreement supersedes any other agreement between the parties concerning
loans of securities between the parties hereto.
20. Assignments.
This Agreement shall not be assigned by either party without the prior
written consent of the other party. Subject to the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective heirs, representatives, successors and assigns.
21. Governing Law; Jurisdiction; Service of Process.
This Agreement shall be governed and construed in accordance with the laws
of the Commonwealth of Massachusetts. Borrower hereby irrevocably submits to
the jurisdiction of any Massachusetts state or federal court sitting in the
Commonwealth of Massachusetts in any action or proceeding arising out of or
related to this Agreement, hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in such Massachusetts
state or Federal court except that this provision shall not preclude any
14
party from removing any action to Federal court. Borrower hereby irrevocably
waives, to the fullest extent it may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding. Borrower
hereby irrevocably appoints __________ [Massachusetts Person] as its agent to
receive on its behalf service of copies of the summons and complaint and any
other process which may be served in any such action or proceeding (the
"Process Agent"). Such service may be made by mailing or delivering a copy of
such process, in care of the Process Agent at the above address. Borrower
hereby irrevocably authorizes and directs the Process Agent to accept such
service on its behalf. As an alternative method of service, ▇▇▇▇▇▇▇▇ also
irrevocably consents to the service of any and all process in any such action
or proceeding by the mailing of copies of such process to Borrower at its
address specified in Section 16 hereof. ▇▇▇▇▇▇▇▇ agrees that a final judgment
in any such action or proceeding, all appeals having been taken or the time
period for such appeals having expired, shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided
by law.
22. Severability.
The provisions of this Agreement are severable and the invalidity or
unenforceability of any provision hereof shall not affect any other provision
of this Agreement. If in the construction of this Agreement any court should
deem any provision to be invalid because of scope or duration, then such court
shall forthwith reduce such scope or duration to that which is appropriate and
enforce this Agreement in its modified scope or duration.
15
23. Modification.
This Agreement shall not be modified, except by an instrument in writing
signed by the parties hereto.
BORROWER:
Name
-----------------------
By
-----------------------
Title
-----------------------
LENDER: STATE STREET BANK ANDTRUST COMPANY,
in its capacity as trustee, custodian,
oragent of the Clients.
Name
-----------------------
By
-----------------------
Title
-----------------------
16
Schedule A
This Schedule is attached to and made part of the Securities Lending
Authorization Agreement, dated the 1st day of September 2005 between IXIS
ADVISOR FUNDS TRUST I, IXIS ADVISOR FUNDS TRUST II, IXIS ADVISOR FUNDS TRUST
III, IXIS ADVISOR FUNDS TRUST IV, IXIS ADVISOR CASH MANAGEMENT TRUST, ▇▇▇▇▇▇
▇▇▇▇▇▇ FUNDS I, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDS II, EACH ON BEHALF OF ITS RESPECTIVE
SERIES AS LISTED ON SCHEDULE B, SEVERALLY AND NOT JOINTLY (the "Funds") and
STATE STREET BANK AND TRUST COMPANY ("State Street").
Schedule of Fees
1. Subject to Paragraph 2 below, all proceeds collected by State Street on
investment of cash Collateral or any fee income shall be allocated, with
respect to each Fund, as follows:
.. Sixty-Five percent (65%) payable to the Fund, and
.. Thirty-Five percent (35%) payable to State Street.
2. All payments to be allocated under Paragraph 1 above shall be made after
deduction of such other amounts payable to State Street or to the Borrower
under the terms of this Securities Lending Authorization Agreement.
3. Cash Collateral may only be invested in the State Street Securities Lending
Quality Trust.
On an annualized basis, the management/trustee/custody/fund administration fee
for investing cash Collateral in the Securities Lending Quality Trust (the
"Investment Trust") is not more than 7.00 basis points netted out of yield. The
trustee of the Investment Trust may pay out of the assets of the Investment
Trust all reasonable expenses and fees of the Investment Trust, including
professional fees or disbursements incurred in connection with the operation of
the Investment Trust.
Schedule A-1
This Schedule is attached to and made part of the Securities Lending
Authorization Agreement, dated the 1st day of September 2005 between IXIS
ADVISOR FUNDS TRUST I, IXIS ADVISOR FUNDS TRUST II, IXIS ADVISOR FUNDS TRUST
III, IXIS ADVISOR FUNDS TRUST IV, IXIS ADVISOR CASH MANAGEMENT TRUST, ▇▇▇▇▇▇
▇▇▇▇▇▇ FUNDS I, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDS II, EACH ON BEHALF OF ITS RESPECTIVE
SERIES AS LISTED ON SCHEDULE B, SEVERALLY AND NOT JOINTLY (the "Funds") and
STATE STREET BANK AND TRUST COMPANY ("State Street").
FUNDS SECURITIES LOAN LIMITATION
----- --------------------------
IXIS Advisor Funds Trust I
CGM Advisor Targeted Equity Fund 33 1/3%
▇▇▇▇▇▇▇▇▇▇ International Fund 33 1/3%
IXIS U.S. Diversified Portfolio 33 1/3%
IXIS Value Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Core Plus Bond Fund 33 1/3%
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Small Cap Value Fund 33 1/3%
Westpeak Capital Growth Fund 33 1/3%
IXIS Advisor Funds Trust II
▇▇▇▇▇▇ Associates Large Cap Value Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Massachusetts Tax Free Income Fund 33 1/3%
IXIS Advisor Funds Trust III
▇▇▇▇▇▇ Associates Focused Value Fund 33 1/3%
IXIS Equity Diversified Portfolio 33 1/3%
IXIS Moderate Diversified Portfolio 33 1/3%
IXIS Advisor Funds Trust IV
AEW Real Estate Fund 33 1/3%
IXIS Advisor Cash Management Trust
IXIS Cash Management Trust - Money Market Series 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Funds I
▇▇▇▇▇▇ ▇▇▇▇▇▇ Bond Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Fixed Income Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Global Bond Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ High Income Opportunities Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Institutional High Income Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Intermediate Duration Fixed Income Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Investment Grade Fixed Income Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Inflation Protected Securities Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Securitized Asset Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Small Cap Value Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Funds II
▇▇▇▇▇▇ ▇▇▇▇▇▇ High Income Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Limited Term Government and Agency Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Municipal Income Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Strategic Income Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Investment Grade Bond Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Growth Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Research Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Aggressive Growth Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Small Cap Growth Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Value Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Worldwide Fund 33 1/3%
▇▇▇▇▇▇ ▇▇▇▇▇▇ Tax-Managed Equity Fund 33 1/3%
Schedule 8.1
This Schedule is attached to and made part of the Securities Lending
Authorization Agreement, dated the 1st day of September 2005 between IXIS
ADVISOR FUNDS TRUST I, IXIS ADVISOR FUNDS TRUST II, IXIS ADVISOR FUNDS TRUST
III, IXIS ADVISOR FUNDS TRUST IV, IXIS ADVISOR CASH MANAGEMENT TRUST, ▇▇▇▇▇▇
▇▇▇▇▇▇ FUNDS I, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDS II, EACH ON BEHALF OF ITS RESPECTIVE
SERIES AS LISTED ON SCHEDULE B, SEVERALLY AND NOT JOINTLY (the "Funds") and
STATE STREET BANK AND TRUST COMPANY ("State Street").
Acceptable Forms of Collateral
. Cash (U.S. and foreign currency)
Schedule B
This Schedule is attached to and made part of the Securities Lending
Authorization Agreement, dated the 1st day of September 2005 between IXIS
ADVISOR FUNDS TRUST I, IXIS ADVISOR FUNDS TRUST II, IXIS ADVISOR FUNDS TRUST
III, IXIS ADVISOR FUNDS TRUST IV, IXIS ADVISOR CASH MANAGEMENT TRUST, ▇▇▇▇▇▇
▇▇▇▇▇▇ FUNDS I, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDS II, EACH ON BEHALF OF ITS RESPECTIVE
SERIES AS LISTED ON SCHEDULE B, SEVERALLY AND NOT JOINTLY (the "Funds") and
STATE STREET BANK AND TRUST COMPANY ("State Street").
Fund Name Taxpayer Id Number Tax Year-End
--------- ------------------ ------------
IXIS Advisor Funds Trust I
CGM Advisor Targeted Equity Fund ▇▇-▇▇▇▇▇▇▇ December 31st
▇▇▇▇▇▇▇▇▇▇ International Fund ▇▇-▇▇▇▇▇▇▇ December 31st
IXIS U.S. Diversified Portfolio ▇▇-▇▇▇▇▇▇▇ December 31st
IXIS Value Fund ▇▇-▇▇▇▇▇▇▇ December 31st
▇▇▇▇▇▇ ▇▇▇▇▇▇ Core Plus Bond Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Small Cap Value Fund ▇▇-▇▇▇▇▇▇▇ December 31st
Westpeak Capital Growth Fund ▇▇-▇▇▇▇▇▇▇ December 31st
IXIS Advisor Funds Trust II
▇▇▇▇▇▇ Associates Large Cap Value Fund ▇▇-▇▇▇▇▇▇▇ December 31st
▇▇▇▇▇▇ ▇▇▇▇▇▇ Massachusetts Tax Free Income
Fund ▇▇-▇▇▇▇▇▇▇ September 30th
IXIS Advisor Funds Trust III
▇▇▇▇▇▇ Associates Focused Value Fund ▇▇-▇▇▇▇▇▇▇ December 31st
IXIS Equity Diversified Portfolio ▇▇-▇▇▇▇▇▇▇ December 31st
IXIS Moderate Diversified Portfolio ▇▇-▇▇▇▇▇▇▇ December 31st
IXIS Advisor Funds Trust IV
AEW Real Estate Fund ▇▇-▇▇▇▇▇▇▇ January 31st
IXIS Advisor Cash Management Trust
IXIS Cash Management Trust - Money Market
Series ▇▇-▇▇▇▇▇▇▇ June 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Funds I
▇▇▇▇▇▇ ▇▇▇▇▇▇ Bond Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Fixed Income Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Global Bond Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ High Income Opportunities Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Institutional High Income Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Intermediate Duration Fixed
Income Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Investment Grade Fixed Income
Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Inflation Protected Securities
Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Securitized Asset Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Small Cap Value Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Funds II
▇▇▇▇▇▇ ▇▇▇▇▇▇ High Income Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Limited Term Government and
Agency Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Municipal Income Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Strategic Income Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Investment Grade Bond Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Growth Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Research Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Aggressive Growth Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Small Cap Growth Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Value Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Worldwide Fund ▇▇-▇▇▇▇▇▇▇ September 30th
▇▇▇▇▇▇ ▇▇▇▇▇▇ Tax-Managed Equity Fund ▇▇-▇▇▇▇▇▇▇ September 30th
Schedule B-1
This Schedule is attached to and made part of the Securities Lending
Authorization Agreement, dated the 1st day of September 2005 between IXIS
ADVISOR FUNDS TRUST I, IXIS ADVISOR FUNDS TRUST II, IXIS ADVISOR FUNDS TRUST
III, IXIS ADVISOR FUNDS TRUST IV, IXIS ADVISOR CASH MANAGEMENT TRUST, ▇▇▇▇▇▇
▇▇▇▇▇▇ FUNDS I, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDS II, EACH ON BEHALF OF ITS RESPECTIVE
SERIES AS LISTED ON SCHEDULE B, SEVERALLY AND NOT JOINTLY (the "Funds") and
STATE STREET BANK AND TRUST COMPANY ("State Street").
FUNDS EFFECTIVE DATE OF AGREEMENT
----- ---------------------------
IXIS Advisor Funds Trust I
CGM Advisor Targeted Equity Fund September 1, 2005
▇▇▇▇▇▇▇▇▇▇ International Fund September 1, 2005
IXIS U.S. Diversified Portfolio September 1, 2005
IXIS Value Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Core Plus Bond Fund October 1, 2005
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Small Cap Value Fund September 1, 2005
Westpeak Capital Growth Fund September 1, 2005
IXIS Advisor Funds Trust II
▇▇▇▇▇▇ Associates Large Cap Value Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Massachusetts Tax Free Income
Fund October 1, 2005
IXIS Advisor Funds Trust III
▇▇▇▇▇▇ Associates Focused Value Fund September 1, 2005
IXIS Equity Diversified Portfolio September 1, 2005
IXIS Moderate Diversified Portfolio September 1, 2005
IXIS Advisor Funds Trust IV
AEW Real Estate Fund September 1, 2005
IXIS Advisor Cash Management Trust
IXIS Cash Management Trust - Money Market
Series September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Funds I
▇▇▇▇▇▇ ▇▇▇▇▇▇ Bond Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Fixed Income Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Global Bond Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ High Income Opportunities Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Institutional High Income Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Intermediate Duration Fixed
Income Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Investment Grade Fixed Income
Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Inflation Protected Securities
Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Securitized Asset Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Small Cap Value Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Funds II
▇▇▇▇▇▇ ▇▇▇▇▇▇ High Income Fund October 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Limited Term Government and
Agency Fund October 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Municipal Income Fund October 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Strategic Income Fund October 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Investment Grade Bond Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Growth Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Research Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Aggressive Growth Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Small Cap Growth Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Value Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Worldwide Fund September 1, 2005
▇▇▇▇▇▇ ▇▇▇▇▇▇ Tax-Managed Equity Fund September 1, 2005