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EXHIBIT 9(s)
SECURITIES LENDING AGREEMENT FOR NON-ERISA ACCOUNTS DATED AS OF
JANUARY 8, 1998 BETWEEN THE REGISTRANT, BANC ONE INVESTMENT ADVISORS
CORPORATION AND BANK ONE TRUST COMPANY, N.A.
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SECURITIES LENDING AGREEMENT
FOR NON-ERISA ACCOUNTS
This Securities Lending Agreement (the "Agreement") is entered into as
of January 8, 1998 by and between The One Group(R), an open-end management
investment company formed under the Investment Company Act of 1940 (the
"Lender"), Banc One Investment Advisors Corporation, an investment advisor under
the Investment Advisers Act of 1940 (the "Advisor"), and Bank One Trust Company,
N.A., a national banking association (the "Subcustodian").
BACKGROUND INFORMATION
----------------------
A. The Advisor serves as investment advisor to the Lender pursuant to
an Investment Advisory Agreement dated January 11, 1995, as amended
from time to time.
B. The Advisor in conjunction with the Subcustodian has developed an
international securities lending program (the "International Securities
Lending Program"), (the exact terms and conditions of which are
contained in, and subject to this Agreement) pursuant to which Advisor
will provide lending agent services to Lender for purposes of lending
Lender's foreign securities (the "Foreign Securities").
C. The Foreign Securities are held in custody by State Street Bank and
Trust Company (the "Custodian") or its foreign sub-custodians pursuant
to a Custodian Agreement (the "Custodian Agreement").
D. The Lender desires to appoint the Advisor as its lending agent and
Subcustodian as its custodian for the purpose of holding collateral
received in connection with loans of Foreign Securities. The Advisor
has agreed to act as agent for the Lender and the Subcustodian has
agreed to act as custodian for the Lender in accordance with the terms
of this Agreement. The Lender has established one or more collateral
accounts (each, a "Collateral Account"; collectively, the "Collateral
Accounts") with the Subcustodian which will, from time to time, hold
the cash and securities received as collateral (the "Collateral") in
connection with loans of Foreign Securities which are the subject of,
and can be loaned pursuant to the terms and conditions of this
Agreement.
STATEMENT OF AGREEMENT
----------------------
The parties hereby acknowledge the accuracy of the foregoing background
information and hereby agree as follows:
Section l. APPOINTMENT. The Lender hereby appoints the Advisor as its
agent to act as set forth in this Agreement and the Advisor hereby accepts the
appointment as agent and agrees to so act. The Lender agrees that the Advisor is
acting as a fully disclosed agent and not as principal in connection with the
International Securities Lending Program. The Advisor and the Subcustodian shall
have the right to disclose the identity of the Lender to any Borrower as defined
herein or give notice that such identity is available upon request.
Lender is a series investment company consisting of a variety of
investment portfolios and is entering this Agreement on behalf of the investment
portfolios identified on EXHIBIT A attached hereto and incorporated hereby by
reference ("Funds"). Any reference to Lender in this Agreement shall be deemed a
reference solely to the particular Fund to which a given lending transaction
under this Agreement relates. Under no circumstances shall the rights,
obligations, or remedies with respect to a particular Fund constitute a right,
obligation or remedy applicable to any other Fund. In particular and without
limiting the generality of the foregoing: (a) any event of default regarding one
Fund shall not create any right or obligation with respect to any other Fund,
(b) Advisor and the Subcustodian shall have no right to set off claims of a Fund
by applying property of any other Fund, and (c) no Fund shall have the right to
set off against assets or property held by a Borrower or Subcustodian for any
other Fund.
Lender was created as a Massachusetts Business Trust under a
Declaration of Trust filed on May 23, 1985 ("Trust Agreement"). The Trust
Agreement provides, among other things, that trustees of Lender are responsible
for the actions of Lender in their capacity as trustees and not personally. The
parties hereto expressly acknowledge and agree that
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the obligations of Lender hereunder shall not be binding upon any of the
shareholders, trustees, officers, employees or agents of Lender, but shall only
bind the trust property of Lender, as provided in the Trust Agreement. The
execution and delivery of this Agreement by an officer of the Lender has been
approved by the trustees of the Lender, and neither the authorization nor the
execution and delivery shall be deemed to have been made by any of them
individually or to impose any liability on any of them personally, but shall
bind only the trust property of the Lender as provided in the Trust Agreement.
Section 2. AUTHORIZATION AND APPROVAL OF BORROWERS. The Advisor has
reviewed and approved the standard form of Master Securities Loan Agreement
attached hereto as EXHIBIT B and substantially similar agreements heretofore
executed by the Subcustodian for the lending of customer securities and
substantially similar agreements hereafter approved by Advisor and executed by
the Subcustodian (the "Loan Agreement" or "Loan Agreements"). The Lender hereby
authorizes the Advisor to lend Foreign Securities in accordance with the Loan
Agreements to any of the Borrowers specified by Advisor on the list attached
hereto as EXHIBIT C as amended from time to time by the Advisor (each a
"Borrower").
The Advisor is authorized to negotiate rebates with the Borrower to be paid to
the Borrower for the use of Cash Collateral (as defined in section 8(c)) as well
as the fees to be paid to the Lender for the loan of securities collateralized
by Collateral other than Cash Collateral.
Section 3. LENDER'S REPRESENTATIONS. In order to permit the Advisor and
the Subcustodian to make such representations as may be required by the Loan
Agreement, the Lender hereby represents and warrants to the Advisor, which
representations and warranties shall be deemed to be continuing and to be
reaffirmed on any day that a loan under this Agreement is outstanding, that:
(a) This Agreement is, and each loan will be, legally and validly
entered into, does not, and will not, violate any statute, regulation, rule,
order, or judgment binding on the Lender, or any agreement binding on the Lender
or affecting its property, and is enforceable against the Lender in accordance
with its terms, except as may be limited by bankruptcy, insolvency, or similar
laws, or by equitable principles relating to or limiting creditors' rights
generally;
(b) The person executing this Agreement and any other persons
designated from time to time by the Lender in writing (each such person, an
"Authorized Person") are duly and properly authorized to act on behalf of the
Lender or the Advisor, respectively;
(c) The Lender owns the Foreign Securities held by the Custodian or the
Custodian's foreign sub-custodians under the Custodian Agreement or subject to a
loan under this Agreement free and clear of all liens, claims, security
interests and encumbrances and no such security has been sold. Lender agrees to
immediately notify the Advisor and identify any of the Foreign Securities which
are no longer subject to the representations set forth in this paragraph (c) or
which are otherwise being withdrawn from participation in the International
Securities Lending Program;
(d) The Lender is acting as principal with respect to loans made under
this Agreement; and
(e) The Lender is not subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") with respect to this Agreement and
the Foreign Securities.
Section 4. LOAN OPPORTUNITIES. The Lender acknowledges and agrees that
the Advisor or the Subcustodian may lend securities (including, without
limitation, foreign securities) owned by other of the Advisor's or the
Subcustodian's customers to Borrowers. The Lender agrees that it shall have no
claim against the Advisor or the Subcustodian based on, or relating to, loans
made for other customers or loan opportunities refused hereunder, whether or not
the Advisor has made fewer or more loans for any other customer than for the
Lender, and whether or not any loan for another customer, or the opportunity
refused, could have resulted in loans made under this Agreement.
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Section 5. MAKING OF LOANS. The Advisor will notify Borrowers that it
is prepared to lend Foreign Securities of the Lender. If the Advisor determines,
in response to a Borrower's orally advising the Advisor of its desire to borrow
Foreign Securities, to lend Foreign Securities of the Lender pursuant to a Loan
Agreement, the Advisor will instruct the Subcustodian to receive such Collateral
as required by the Loan Agreement. Upon receipt of verification from the
Subcustodian that it has received the Collateral required by the Loan Agreement,
the Advisor shall instruct the Custodian to deliver the Foreign Securities to
the applicable Borrower, and is hereby authorized to take such actions to effect
the loan as are required by the Loan Agreement; provided, however, that the
Advisor shall lend no more than 33% of the securities owned by a Fund and verify
that the such loans are secured by Collateral equal to at least 100% of the
market value plus accrued interest on the Foreign Securities lent. For each
Borrower, the Advisor shall establish a maximum limit on the amount of
securities that will be delivered to each Borrower in connection with loans of
the Lender's securities, including Foreign Securities (the "Borrower Limit").
The Subcustodian shall not deliver Lender's Foreign Securities to a Borrower
when the value of the loan exceeds the Borrower Limit for all securities of the
Lender.
Section 6. LOAN TERMINATION. The Advisor shall, subject to the terms of
the Loan Agreement, terminate a loan made to a Borrower whenever the Advisor
shall actually receive:
(a) oral or written instructions to terminate the loan from a
person believed by the Advisor to be an Authorized Person of
the Lender;
(b) oral or written notice from the Lender that the loaned Foreign
Security is no longer subject to the representations set form
in section 3(c) or that the Foreign Securities are no longer
eligible for participation in the International Securities
Lending Program;
(c) a written instruction from an Authorized Person or a person
believed by the Advisor to be an Authorized Person of the
Lender that the Borrower with whom the loan is outstanding is
to be deleted from the list referred to in Section 2 hereof;
(d) actual notice of a default under any Loan Agreement pursuant
to which Foreign Securities have been loaned; or
(e) termination of this Agreement.
Notwithstanding the foregoing or any other provision in this Agreement,
the Advisor may at any time terminate any loan in its absolute discretion.
Section 7. OUTSTANDING LOANS. Subject to the supervision of the
Advisor, the Subcustodian shall perform the following acts in connection with
loans of Foreign Securities hereunder:
(a) enter into Loan Agreements on such terms as approved by the
Advisor;
(b) establish one or more Collateral Accounts to hold cash and
other securities received from Borrowers under the Loan
Agreement;
(c) notify the Advisor upon receipt of Collateral from the
Borrower as required by the applicable Loan Agreement;
(d) prepare each business day a ▇▇▇▇-to-market valuation of the
then fair market value of the loaned Foreign Securities,
including income accrued but unpaid thereon;
(e) receive and release Collateral as provided in the applicable
Loan Agreement;
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(f) accept substitutions of Collateral and execute and deliver or
send any receipts required under the Loan Agreement in
connection therewith;
(g) make investments of Cash Collateral in accordance with
instructions of the Advisor;
(h) take such action upon termination of a loan as may be
directed by the Advisor; and
(i) monitor compliance with the terms of the Loan Agreement and
within a reasonable time after learning of a default, give
notice thereof to the Advisor, and thereafter take such
actions, if any, as may be specified by the Advisor.
The Advisor shall perform the following acts in connection with loans of Foreign
Securities hereunder:
(a) select Borrowers with whom loans of securities may be made
hereunder;
(b) negotiate the terms of the loans;
(c) invest Cash Collateral in accordance with Section 8 hereof;
(d) notify Subcustodian that a Borrower has returned a loaned
Foreign Security upon receiving notice thereof from Custodian;
(e) within a reasonable time after learning of a default, give
notice thereof to the Subcustodian and the Lender, and
thereafter take such actions, if any, as may be specified in
written instructions actually received from a person believed
by the Advisor to be an Authorized Person of the Lender. In
the absence of instructions from the Lender to the Advisor,
Advisor is authorized, without notice to Lender, to exercise
such rights of Lender and to pursue such available remedies of
Lender under the appropriate Loan Agreement as it deems
appropriate; provided, however, nothing herein shall require
Advisor or the Subcustodian to expend their own funds to
exercise such rights or pursue such remedies; and
(f) take such action upon termination of a loan as may be required
by the Loan Agreement.
Section 8. COLLATERAL.
(a) In connection with loans of Foreign Securities made on behalf of
the Lender, the Advisor agrees to limit Collateral accepted and investments of
Cash Collateral to those securities in which the Fund of the Lender owning the
loaned Foreign Securities could invest and, subject to this requirement, the
Lender authorizes the Advisor: (i) to accept Collateral of the types which are
designated on EXHIBIT D with such changes as recommended from time to time by
the Advisor with the approval of the Lender; and (ii) to invest cash received as
Collateral for a loan of Foreign Securities in any of the types of investments
specified on EXHIBIT D as modified from time to time. The Lender hereby
authorizes the Advisor to purchase or sell investments of Cash Collateral to or
from other accounts advised by the Advisor or held by its affiliates.
(b) All uncertificated U.S. government or agency securities, and any
other securities received by the Subcustodian as Collateral in connection with
any transactions involving Cash Collateral (as defined below), shall be
segregated by a separate recordation hereunder on the books of the Subcustodian,
and may be held as the Subcustodian may determine in any form or manner in which
the Subcustodian is permitted to hold securities including, without limitation,
by depositing the same with such subcustodians or agents as have been approved
by the Lender or in the Federal Reserve/Treasury Book-Entry System (the
"Book-Entry System") or the Depository Trust Company (the "Depository"), or
their respective successors or nominees. Subcustodian is hereby authorized to
enter into such agreements as are necessary to appoint such agents,
subcustodians, and Depositories.
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(c) All money received as, or with respect to, Collateral, including
money received with respect to investment of the same, or upon the maturity,
sale, or liquidation of any such investments ("Cash Collateral"), may, in the
Advisor's sole discretion, be invested and reinvested in the types of
investments listed in EXHIBIT D as modified from time to time.
(d) Notwithstanding the foregoing, or any other provision contained in
this Agreement, the Advisor shall at all times have: (i) the right to cause the
Subcustodian to hold in the Collateral Account a portion of the Cash Collateral
uninvested without any obligation to pay interest thereon whenever the Advisor,
in its sole discretion, deems it advisable, provided the Advisor uses its best
efforts to minimize such amount, and (ii) the absolute right, without obtaining
any approval of the Lender, to liquidate any investment or reinvestment and
cause the net proceeds to be credited to the Collateral Account.
(e) The Subcustodian shall maintain the notifications required by
applicable law with respect to securities transactions involving Cash Collateral
and shall furnish monthly activity statements. The Subcustodian shall comply
with all applicable legal requirements regarding the custody of the Lender's
securities under the Investment Company Act of 1940 and the rules and
regulations promulgated thereunder including, if applicable, Rule 17f-2.
(f) The Subcustodian shall execute, as agent for the Lender, any
certificates of ownership, declarations or other certificates required under the
tax laws or pursuant to any other law or governmental regulation now or
hereafter in effect with respect to securities held as Collateral. The
Subcustodian shall, in addition, supply any information regarding Collateral
transactions required by any applicable law or governmental regulation without
first giving notice to the Lender or the Advisor.
(g) The Advisor shall take such actions with respect to the Collateral
as are required from time to time pursuant to any Loan Agreement.
(h) All investments of Cash Collateral made in accordance with this
Agreement shall be for the account and risk of the Lender. To the extent that
any loss arising out of such investments of Cash Collateral results in a
deficiency in the amount of Cash Collateral available for return to a Borrower
pursuant to the Loan Agreement, the Lender agrees to pay the Subcustodian on
demand cash in an amount equal to such deficiency. In addition, the Subcustodian
shall be entitled to charge the Lender's accounts for such deficiency in
accordance with Section 10 of this Agreement.
(i) All Collateral and securities or other property acquired through
the investment of Cash Collateral shall be controlled by, and subject to the
instructions of, the Advisor; provided, however, that the Advisor shall comply
with any instructions of the Lender with respect to the same.
Section 9. SUBCUSTODIAN'S FEES. The Lender shall in connection with
each loan hereunder pay to the Subcustodian the fee (the "Subcustodian's Fee")
as specified on EXHIBIT E, which Subcustodian Fee shall accrue daily.
Section 10. THE COLLATERAL ACCOUNT. The Advisor and the Subcustodian
shall act as follows with respect to the Collateral Account in which the
Subcustodian holds Collateral on behalf of the Lender:
(a) The Subcustodian shall monthly: (i) credit the Collateral Account
with all amounts, if any, paid by a Borrower in connection with a loan
collateralized in whole or in part with Collateral other than Cash Collateral;
(ii) credit the Collateral Account with the earnings, if any, arising from the
investment of Cash Collateral; (iii) debit the Collateral Account by an amount
equal to the amounts to be paid to the Borrower pursuant to the Loan Agreement;
and (iv) debit the Collateral Account in an amount equal to the accrued
Subcustodian's Fees described in Section 9 hereof;
(b) Whenever the Loan Agreement requires a return of Cash Collateral,
the Subcustodian shall debit the Collateral Account by the amount so returned;
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(c) In the event debits to the Collateral Account pursuant to the
foregoing subsections 10(a) and 10(b) produce a deficit therein, the
Subcustodian 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, the
Subcustodian shall have the right to charge the deficiency to any other account
or accounts maintained by the Lender with the Subcustodian; provided, however,
that the Subcustodian shall not have the right to charge any accounts maintained
for one Fund (as defined in section 1 hereof) for the obligations of another
Fund.
(d) If the Subcustodian, in its sole discretion, advances funds on
behalf of the Lender in order to eliminate a deficiency created under the
foregoing subsections 10(a), 10(b), or 10(c), the Subcustodian shall notify the
Advisor. Upon receipt of such notice by the Advisor, the Lender agrees to repay
the Subcustodian upon demand the amount of any advance described herein plus
accrued interest at a rate per annum (based on a 360-day year for the actual
number of days involved) not to exceed the fed funds rate as publicly announced
to be in effect from time to time, such rate to be adjusted on the effective
date of any change in the fed funds rate.
(e) Except with respect to amounts representing the crediting of a Loan
Fee as defined in the Loan Agreement, if any, paid by a Borrower, money from
time to time held in the Collateral Account shall be controlled by, and subject
to the instructions of, the Advisor; provided, however, that the Advisor shall
comply with any instructions of the Lender with respect to the same.
Section 11. RIGHTS OF BORROWERS WITH RESPECT TO LOANED FOREIGN
SECURITIES. Until a loan is terminated in accordance with Section 6, the
Borrower shall exercise all of the incidents of ownership of the loaned Foreign
Securities, including the right to transfer the loaned Foreign Securities to
others; provided, however, that the Lender shall be entitled to receive
distributions, dividends, and other payments made on or in connection with the
loaned Foreign Securities to the extent provided and in accordance with the
terms of the applicable Loan Agreement. The Lender hereby expressly waives the
right to vote any Foreign Securities that are subject to a loan.
Section 12. RESPONSIBILITY. The Advisor and the Subcustodian undertake
to perform such duties and only such duties as are specifically set forth in
this Agreement. The Advisor and the Subcustodian shall not be liable for any
loss or damage, including counsel fees and court costs, whether or not resulting
from their acts or omissions to act hereunder or otherwise, unless the loss or
damage arises out of the Advisor's or the Subcustodian's own negligence. Except
for any liability, loss, or expense arising from or connected with the Advisor's
or the Subcustodian's own negligence, the Lender agrees to reimburse and hold
the Advisor and the Subcustodian harmless from and against any liability, loss
and expense, including counsel fees and expenses and court costs, arising in
connection with this Agreement or any Loan Agreement 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. The Subcustodian may charge any amounts to
which it or the Advisor is entitled hereunder against the Collateral Account.
Without limiting the generality of the foregoing, the Lender agrees: (i) that
the Advisor and the Subcustodian shall not be responsible for any statements,
representations, or warranties which any Borrower makes in connection with any
Foreign Securities loans hereunder, if reasonably relied upon in good faith, or
for the performance by any Borrower of the terms of the Loan Agreement, or any
agreement related thereto; (ii) that the Advisor and the Subcustodian shall be
fully protected in acting in accordance with the oral or written instructions of
any person reasonably believed by them to be an Authorized Person; (iii) that in
the event of a default by a Borrower under the Loan Agreement, the Advisor and
the Subcustodian shall be fully protected in acting in accordance with this
Agreement; and (iv) that the Advisor and the Subcustodian shall not be under any
duty or obligation to advance or expend their own funds to take action to effect
payment by a Borrower of any amounts owed by the Borrower pursuant to the Loan
Agreement, provided the Subcustodian timely advises the Advisor of the
non-payment by the Borrower of any such amount. The indemnification provided to
Advisor and the Subcustodian hereunder shall survive termination of this
Agreement. The Lender acknowledges and agrees that all investments of Cash
Collateral shall be for the account of the Lender and any reinvestment risk
associated with Cash Collateral shall be borne solely by the Lender and that
neither the Advisor nor the Subcustodian shall provide indemnification to the
Lender in connection with this Agreement or the International Securities Lending
Program.
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Section 13. SEVERABILITY. If any provisions of this Agreement shall be
held or made invalid by a statute, rule, regulation, decision of a tribunal or
otherwise, the remainder of this Agreement shall not be affected thereby and, to
this extent, the provisions of this Agreement shall be deemed to be severable.
Section 14. EXCLUSIVITY. The Lender agrees that it shall not enter into
any other securities loan agreement with any other bank or securities
broker/dealer whereby the other bank or broker/dealer is permitted to make loans
on behalf of the Lender of Foreign Securities which are the subject of this
Agreement.
Section 15. CONFLICTS OF INTEREST AND DISCLOSURE. NOTHING IN THIS
AGREEMENT SHALL PRECLUDE THE ADVISOR, THE SUBCUSTODIAN, OR THEIR AFFILIATES FROM
ENTERING INTO SEPARATE ARRANGEMENTS OR AGREEMENTS WITH BORROWERS INVOLVING THE
PROVISION OF PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, DEPOSITS,
LOANS, OR BROKERAGE SERVICES. THE ADVISOR AND THE SUBCUSTODIAN HEREBY DISCLOSE
THAT THEY OR THEIR AFFILIATES MAY RECEIVE COMPENSATION OR REMUNERATION FROM THE
BORROWERS IN CONNECTION WITH SUCH SEPARATE ARRANGEMENTS OR AGREEMENTS,
INCLUDING, WITHOUT LIMITATION, VOLUME DISCOUNTS AND DISCOUNTED PERIODICAL
SUBSCRIPTIONS. THE ADVISOR AND THE SUBCUSTODIAN FURTHER DISCLOSE THAT
INVESTMENTS OF CASH COLLATERAL MADE PURSUANT TO SECTION 8 MAY HAVE THEIR OWN
FEES AND EXPENSES WHICH MAY REDUCE THE EARNINGS PAYABLE TO LENDER PURSUANT TO
THIS AGREEMENT.
Section 16. STATEMENTS. The Subcustodian will at least monthly furnish
the Lender with statements relating to loans hereunder, and other information
reasonably requested by the Lender.
Section 17. NOTICES, ASSIGNMENTS, AMENDMENT, CONSTRUCTION.
(a) Any notice, instruction, other instrument or writing, authorized or
required to be given hereunder to the Subcustodian shall be sufficiently given
only if and when actually received by the Subcustodian, including receipt by
telefax, at its offices at:
Bank One Trust Company, NA
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Securities Lending
or at such other place as the Subcustodian may, from time to time, designate in
writing and, except as expressly provided to the contrary herein, signed by an
Authorized Person; and any notice, other instrument, writing, report or advice
authorized or required by the Agreement to be given to the Lender shall be
sufficiently given only if and when actually received by the Lender, including
receipt by telefax, at its offices at:
The One Group
c/o Banc One Investment Advisors Corporation, as Subadministrator
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
or at such other place as the Lender may from time to time designate in writing;
and any notice, instruction, other instrument or writing authorized or required
by the Agreement to be given to the Advisor shall be sufficiently given only if
and when actually received by the Advisor, including receipt by telefax, at its
offices at:
Banc One Investment Advisors Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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or at such other place as the Advisor may from time to time designate in
writing.
(b) This Agreement shall not be assignable by the parties hereto
without the written consent of the other parties. This Agreement shall be
binding upon each party and its respective successors and permitted assigns;
(c) This Agreement constitutes the entire agreement between the parties
hereto with respect to the transactions contemplated hereby and supersedes all
prior discussions, understandings, agreements and negotiations between the
parties hereto with respect to such transactions. This Agreement shall not be
amended or modified in any manner except by a written agreement executed by the
parties hereto with the same formality as this Agreement;
(d) This Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio;
(e) The headings in this Agreement are for convenience only and shall
not be used in construing this Agreement; and
(f) Either the Lender or the Advisor may terminate this Agreement by
delivering to the other party a written notice specifying a date of termination,
not earlier than the date of receipt of such notice by the other party, provided
that this Agreement shall continue in full force and effect with respect to all
loans of securities in effect on the date of termination.
Section 18. CUSTODY. Lender acknowledges that the Advisor is only
performing the securities lending services described in this Agreement and that
the Advisor retains no custody or possession of the securities, assets, and/or
cash in the Collateral Account and performs no depository services with respect
to the Collateral Account.
Section 19. ARBITRATION Any controversy or claim arising out of or
relating to this Agreement, or the breach of the same, shall be settled through
consultation and negotiation in good faith and a spirit of mutual cooperation.
However, if those attempts fail, the parties agree that any misunderstandings or
disputes arising from this Agreement shall be decided by arbitration which shall
be conducted, upon request by either party, before three (3) arbitrators (unless
both parties agree upon one (1) arbitrator), designated by the American
Arbitration Association (the "AAA"), in accordance with the terms of the
Commercial Arbitration Rules of the AAA, and, to the maximum extent applicable,
the United States Arbitration Act (Title 9 of the United States Code), or if
such Act is not applicable, any substantially equivalent state law. The parties
further agree that the arbitrator(s) will decide which party must bear the
expenses of the arbitration proceedings.
Section 20. SIPA NOTICE. THE PROVISIONS OF THE SECURITIES INVESTOR
PROTECTION ACT OF 1970 MAY NOT PROTECT THE LENDER WITH RESPECT TO LOANS
HEREUNDER AND, THEREFORE, THE COLLATERAL DELIVERED TO THE SUBCUSTODIAN AS
SUBCUSTODIAN FOR THE LENDER MAY CONSTITUTE THE ONLY SOURCE OF SATISFACTION OF A
BORROWER'S OBLIGATION IN THE EVENT SUCH BORROWER FAILS TO RETURN THE LOANED
FOREIGN SECURITIES.
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IN WITNESS WHEREOF, the Lender, the Advisor, and the Subcustodian have
caused this Agreement to be duly executed as of the date first above written.
The One Group
("Lender")
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
(Authorized Signature)
Banc One Investment Advisors Corporation
("Advisor")
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
(Authorized Signature)
Bank One Trust Company, N.A.
("Subcustodian")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
(Authorized Signature)
6294.04
11
SECURITIES LENDING AGREEMENT
EXHIBIT A
PARTICIPATING PORTFOLIOS
International Equity Index Fund
PSA
Exhibit B
Public Securities Association
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Telephone (▇▇▇) ▇▇▇-▇▇▇▇
MASTER SECURITIES LOAN AGREEMENT
Dated as of _________________
Between:
Bank One Trust Company, NA
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and
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This Agreement sets forth the terms and conditions under which one
party ("Lender") may. from time to time, lend to the other party ("Borrower")
certain securities against a pledge of collateral. Capitalized terms not
otherwise defined herein shall have the meanings provided in Section 26.
The parties hereto agree as follows:
1. Loans of Securities.
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1.1 Subject to the terms and conditions of this Agreement, Borrower or
Lender may. from time to time. orally seek to initiate a transaction in which
Lender will lend securities to Borrower. Borrower and Lender shall agree orally
on the terms of each Loan, including the issuer of the securities, the amount of
securities to be lent, the basis of compensation, and the amount of Collateral
to be transferred by Borrower, which terms may be amended during the Loan.
1.2 Notwithstanding any other provision in this Agreement regarding
when a Loan commences. a Loan hereunder shall not occur until the Loaned
Securities and the Collateral therefor have been transferred in accordance with
Section 16.
1.3 WITHOUT WAIVING ANY RIGHTS GIVEN TO LENDER HEREUNDER, IT IS
UNDERSTOOD AND AGREED THAT THE PROVISIONS OF THE SECURITIES INVESTOR PROTECTION
ACT OF 1970 MAY NOT PROTECT LENDER WITH RESPECT TO LOANED SECURITIES HEREUNDER
AND THAT. THEREFORE, THE COLLATERAL DELIVERED TO LENDER MAY CONSTITUTE THE ONLY
SOURCE OF SATISFACTION OF BORROWER'S OBLIGATIONS IN THE EVENT BORROWER FAILS TO
RETURN THE LOANED SECURITIES.
2. Transfer of Loaned Securities.
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2.1 Unless otherwise agreed. Lender shall transfer Loaned Securities to
Borrower hereunder on or before the Cutoff Time on the date agreed to by
Borrower and Lender for the commencement of the Loan.
2.2 Unless otherwise agreed, Borrower shall provide Lender. in each
Loan in which Lender is a Customer, with a schedule and receipt listing the
Loaned Securities. Such schedule and receipt may consist of (a) a schedule
provided to Borrower by Lender and executed and returned by Borrower when the
Loaned Securities are received, (b) in the case of securities transferred
through a Clearing Organization which provides transferors with a notice
evidencing such transfer, such notice, or (c) a confirmation or other document
provided to Lender by Borrower.
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3. Collateral.
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3.1 Unless otherwise agreed, Borrower shall, prior to or concurrently
with the transfer of the Loaned Securities to Borrower, but in no case later
than the close of business on the day of such transfer, transfer to Lender
Collateral with a market value at least equal to a percentage of the market
value of the Loaned Securities agreed to by Borrower and Lender (which shall be
not less than 100% of the market value of the Loaned Securities) (the "Margin
Percentage").
3.2 The Collateral transferred by Borrower to Lender, as adjusted
pursuant to Section 8, shall be security for Borrowers obligations in respect of
such Loan and for any other obligations of Borrower to Lender. Borrower hereby
pledges with, assigns to, and grants Lender a continuing first security interest
in, and a lien upon, the Collateral. which shall attach upon the transfer of the
Loaned Securities by Lender to Borrower and which shall cease upon the transfer
of the Loaned Securities by Borrower to Lender. In addition to the rights and
remedies given to Lender hereunder, Lender shall have all the rights and
remedies of a secured party under the New York Uniform Commercial Code. It is
understood that Lender may use or invest the Collateral, if such consists of
cash, at its own risk, but that (unless Lender is a Broker-Dealer) Lender shall,
during the term of any Loan hereunder, segregate Collateral from all securities
or other assets in its possession. Lender may pledge, repledge, hypothecate,
rehypothecate, lend, relend, Sell or otherwise transfer the Collateral, or
re-register Collateral evidenced by physical certificates in any name other than
Borrower's, only (a) if Lender is Broker-Dealer or (b) in the event of a Default
by Borrower. Segregation of Collateral may be accomplished by appropriate
identification on the books and records of Lender if it is a "financial
intermediary" or a "clearing corporation" within the meaning of the New York
Uniform Commercial Code.
3.3 Except as otherwise provided herein, upon transfer to Lender of the
Loaned Securities on the day a Loan is terminated pursuant to Section 5, Lender
shall be obligated to transfer the Collateral (as adjusted pursuant to Section
8) to Borrower no later than the Cutoff Time on such day or, it such day is not
a day on which a transfer of such Collateral may be effected under Section 16,
the next day on which such a transfer may be effected.
3.4 If Borrower transfers Collateral to Lender, as provided in Section
3.1, and Lender does not transfer the Loaned Securities to Borrower, Borrower
shall have the absolute right to the return of the Collateral: and if Lender
transfers Loaned Securities to Borrower and Borrower does not transfer
Collateral to Lender as provided in Section 3.1, Lender shall have the absolute
right to the return of the Loaned Securities.
3.5 Borrower may, upon reasonable notice to Lender (taking into account
all relevant factors, including industry practice, the type of Collateral to be
substituted and the applicable method of transfer), substitute Collateral for
Collateral securing any Loan or Loans, provided, however, that such substituted
Collateral shall (a) consist only of cash, securities or other property that
Borrower and Lender agreed would be acceptable Collateral prior to the Loan or
Loans and (b) have a market value such that the aggregate market value of such
substituted Collateral, together with all other Collateral for Loans in which
the party substituting such Collateral is acting as Borrower, shall equal or
exceed the agreed upon Margin Percentage of the market value of the Loaned
Securities. Prior to the expiration of any letter of credit supporting
Borrower's obligations hereunder, Borrower shall, no later than the Cutoff Time
on the date such letter of credit expires, obtain an extension of the expiration
of such letter of credit or replace such letter of credit by providing Lender
with a substitute letter of credit in an amount at least equal to the amount of
the letter of credit for which A is substituted.
3.6 Lender acknowledges that, in connection with Loans of Government
Securities and as otherwise permitted by applicable law, some securities
provided by Borrower as Collateral under this Agreement may not be guaranteed by
the United States.
4. Fees for Loan.
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4.1 Unless otherwise agreed. (a) Borrower agrees to pay Lender a loan
fee (a "Loan Fee"), computed daily on each Loan to the extent such Loan is
secured by Collateral other than cash, based on the aggregate par value (in the
case of Loans of Government Securities) or the aggregate market value (in the
case of all other Loans) of the Loaned Securities on the day for which such Loan
Fee is being computed, and (b) Lender agrees to pay Borrower a fee or rebate (a
"Cash Collateral Fee") on Collateral consisting of cash, computed daily based on
the amount of cash held by Lender as Collateral, in the case of each of the Loan
Fee and the Cash Collateral Fee at such rates as Borrower and Lender may agree.
Except as Borrower and Lender may otherwise agree (in the event that cash
Collateral is transferred by clearing house funds or otherwise), Loan Fees shall
accrue from and including the date on which the Loaned Securities are
transferred to Borrower
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to, but excluding, the date on which such Loaned Securities are returned to
Lender, and Cash Collateral Fees shall accrue from and including the date on
which the cash Collateral is transferred to Lender to, but excluding, the date
on which such cash Collateral is returned to Borrower.
4.2 Unless otherwise agreed, any Loan Fee or Cash Collateral Fee
payable hereunder shall be payable:
(a) in the case of any Loan of securities other than Government
Securities, upon the earlier of (i) the fifteenth day of the
month following the calendar month in which such fee was
incurred or (ii) the termination of all Loans hereunder (or,
if a transfer of cash in accordance with Section 16 may not be
effected on such fifteenth day or the day of such termination,
as the case may be, the next day on which such a transfer may
be effected); and
(b) in the case of any Loan of Government Securities, upon the
termination of such Loan.
Notwithstanding the foregoing, all Loan Fees shall be payable by Borrower
immediately in the event of a Default hereunder by Borrower and all Cash
Collateral Fees shall be payable immediately by Lender in the event of a Default
by Lender.
5. Termination of the Loan.
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Unless otherwise agreed, (a) Borrower may terminate a Loan on any
Business Day by giving notice to Lender and transferring the Loaned Securities
to Lender before the Cutoff time on such Business Day, and (b) Lender may
terminate a Loan on a termination date established by notice given to Borrower
prior to the close of business on a Business Day. The termination date
established by a termination notice given by Lender to Borrower shall be a date
no earlier than the standard settlement date for trades of the Loaned Securities
entered into on the date of such notice, which date shall, unless Borrower and
Lender agree to the contrary, be (i) in the case of Government Securities, the
next Business Day following such notice and (ii) in the case of all other
securities, the fifth Business Day following such notice. Unless otherwise
agreed, Borrower shall, on or before the Cutoff Time on the termination date of
a Loan, transfer the Loaned Securities to Lender: provided, however, that upon
such transfer by Borrower, Lender shall transfer the Collateral (as adjusted
pursuant to Section 8) to Borrower in accordance with Section 3.3.
6. Rights of Borrower in Respect of the Loaned Securities.
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Except as set forth in Sections 7.1 and 7.2 and as otherwise agreed by
Borrower and Lender, until Loaned Securities are required to be redelivered to
Lender upon termination of a Loan hereunder, Borrower shall have all of the
incidents of ownership of the Loaned Securities, including the right to transfer
the Loaned Securities to others. Lender hereby waives the right to vote, or to
provide any consent or to take any similar action with respect to, the Loaned
Securities in the event that the record date or deadline for such vote, consent
or other action falls during the term of the Loan.
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7. Dividends, Distributions, Etc.
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7.1 Lender shall be entitled to receive all distributions made on or in
respect of the Loaned Securities which are not otherwise received by Lender, to
the full extent it would be so entitled if the Loaned Securities had not been
lent to Borrower, including, but not limited to: (a) cash and all other
property, (b) stock dividends, (c) securities received as a result of split ups
of the Loaned Securities and distributions in respect thereof, (d) interest
payments, and (e) all rights to purchase additional securities.
7.2 Any cash distributions made on or in respect of the Loaned
Securities, which Lender is entitled to receive pursuant to Section 7.1, shall
be paid by the transfer of cash to Lender by Borrower, on the date any such
distribution is paid, in an amount equal to such cash distribution. so long as
Lender is not in Default at the time of such payment. Non-cash distributions
received by Borrower shall be added to the Loaned Securities on the date of
distribution and shall be considered such for all purposes, except that if the
Loan has terminated, Borrower shall forthwith transfer the same to Lender.
7.3 Borrower shall be entitled to receive all cash distributions made
on or in respect of non-cash Collateral which are not otherwise received by
Borrower, to the full extent it would be so entitled if the Collateral had not
been transferred to Lender. Any distributions of cash made on or in respect of
such Collateral which Borrower is entitled to receive hereunder shall be paid by
the transfer of cash to Borrower by Lender, on the date any such distribution is
paid, in an amount equal to such cash distribution, so long as Borrower is not
in Default at the time of such payment.
7.4 (a) Unless otherwise agreed, it (i) Borrower is required to make a
payment (a "Borrower Payment") with respect to cash distributions on Loaned
Securities under Sections 7.1 and 7.2 ("Securities Distributions"), or (ii)
Lender is required to make a payment (a 'Lender Payment") with respect to cash
distributions on Collateral under Section 7.3 (" Collateral Distributions"), and
(iii) Borrower or Lender, as the case may be ("Payee"), shall be required by law
to collect any withholding or other tax, duty, fee, levy or charge required to
be deducted or withheld from such Borrower Payment or Lender Payment ("Tax"),
then Payor shall (subject to subsections (b) and (c) below), pay such additional
amounts as may be necessary in order that the net amount of the Borrower Payment
or Lender Payment received by the Lender or Borrower, as the case may be
("Payee"), after payment of such Tax equals the net amount of the Securities
Distribution or Collateral Distribution that would have been received if such
Securities Distribution or Collateral Distribution had been paid directly to the
Payee.
(b) No additional amounts shall be payable to a Payee under
subsection (a) above to the extent that Tax would have been imposed on a
Securities Distribution or Collateral Distribution paid directly to the Payee.
(c) No additional amounts shall be payable to a Payee under
subsection (a) above to the extent that such Payee is entitled to an exemption
from, or reduction in the rate of, Tax on a Borrower Payment or Lender Payment
subject to the provision of a certificate or other documentation, but has failed
timely to provide such certificate or other documentation.
(d) Each party hereto shall be deemed to represent that, as of
the commencement of any Loan hereunder, no Tax would be imposed on any cash
distribution paid to it with respect to (i) Loaned Securities subject to a Loan
in which it is acting as Lender or (ii) Collateral for any Loan in which it is
acting as Borrower, unless such party has given notice to the contrary to the
other party hereto (which notice shall specify the rate at which such Tax would
be imposed). Each party agrees to notify the other of any change that occurs
during the term of a Loan in the rate of any Tax that would be imposed on any
such cash distributions payable to it.
7.5 To the extent that, under the provisions of Sections 7.1 through
7.4 (a) a transfer of cash or other property by Borrower would give rise to a
Margin Excess (as defined in Section 8.3 below) or (b) a transfer of cash or
other property by Lender would give rise to a Margin Deficit (as defined in
Section 8.2 below). Borrower or Lender (as the case may be) shall not be
obligated to make such transfer of cash or other property in accordance with
such Sections, but shall in lieu of such transfer immediately credit the amounts
that would have been transferable under such Sections to the account of Lender
or Borrower (as the case may be).
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8. ▇▇▇▇ to Market.
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8.1 Borrower shall daily ▇▇▇▇ to market any Loan hereunder and in the
event that at the close of trading on any Business Day the market value of the
Collateral for any Loan to Borrower shall be less than 100% of the market value
of all the outstanding Loaned Securities subject to such Loan, Borrower shall
transfer additional Collateral no later than the close of the next Business Day
so that the market value of such additional Collateral, when added to the market
value of the other Collateral for such Loan, shall equal 100% of the market
value of the Loaned Securities.
8.2 In addition to any rights of Lender under Section 8.1, in the event
that at the close of trading on any Business Day the aggregate market value of
all Collateral for Loans by Lender shall be less than the Margin Percentage of
the market value of all the outstanding Loaned Securities subject to such Loans
(a "Margin Deficit"), Lender may, by notice to Borrower, demand that Borrower
transfer to Lender additional Collateral so that the market value of such
additional Collateral, when added to the market value of all other Collateral
for such Loans, shall equal or exceed the agreed upon Margin Percentage of the
market value of the Loaned Securities. Unless otherwise agreed, such transfer is
to be made no later than the close of the next Business Day following the day of
Lender's notice to Borrower.
8.3 In the event that at the close of trading on any Business Day the
market value of all Collateral for Loans to Borrower shall be greater than the
Margin Percentage of the market value of all the outstanding Loaned Securities
subject to such Loans (a "Margin Excess"), Borrower may, by notice to Lender,
demand that Lender transfer to Borrower such amount of the Collateral selected
by Borrower so that the market value of the Collateral for such Loans, after
deduction of such amounts, shall thereupon not exceed the Margin Percentage of
the market value of the Loaned Securities. Unless otherwise agreed, such
transfer is to be made no later than the close of the next Business Day
following the day of Borrower's notice to Lender.
8.4 Borrower and Lender may agree, with respect to one or more Loans
hereunder, to ▇▇▇▇ the values to market pursuant to Sections 8.2 and 8.3 by
separately valuing the Loaned Securities lent and the Collateral given in
respect thereof an a Loan-by-Loan basis.
8.5 Borrower and Lender may agree, with respect to any or all Loans
hereunder, that the respective rights of Lender and Borrower under Sections 8.2
and 8.3 maybe exercised only where a Margin Excess or Margin Deficit exceeds a
specified dollar amount or a specified percentage of the market value of the
Loaned Securities under such Loans (which amount or percentage shall be agreed
to by Borrower and Lender prior to entering into any such Loans).
9. Representations. Each party to this Agreement hereby makes the following
representations and warranties, which shall continue during the term of any Loan
hereunder:
9.1 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 accordance with its terms.
9.2 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 regulatory and self-regulatory organizations.
9.3 Each party hereto represents and warrants and that it has not
relied on the other for any tax or accounting advice concerning this Agreement
and that it has made its own determination as to the tax and accounting
treatment of any Loan and any dividends, remuneration or other funds received
hereunder.
9.4 Borrower represents and warrants that it is acting for its own
account. Lender represents and warrants that it is acting for its own account
unless it expressly specifies otherwise in writing and complies with Section
10.3(b).
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9.5 Borrower represents and warrants that (a) it has, or will have at
the time of transfer of any Collateral, the right to grant a first security
interest therein subject to the terms and conditions hereof, and (b) it (or the
person to whom it relends the Loaned Securities) is borrowing or will borrow the
Loaned Securities (except for Loaned Securities that quality 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 as in effect from time to time.
9.6 Lender represents and warrants that it has, or will have at the
time of transfer of any Loaned Securities, the right to transfer the Loaned
Securities subject to the terms and conditions hereof.
10. Covenants.
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10.1 Each party hereto agrees and acknowledges that (a) each Loan
hereunder is a "securities contract," as such term is defined in Section 741(7)
of Title 11 of the United States Code (the "Bankruptcy Code"), (b) each and
every transfer of funds, securities and other property under this Agreement and
each Loan hereunder is a "settlement payment" or a "margin payment," as such
terms are used in Sections 362(b)(6) and 546(e) of the Bankruptcy Code, and (c)
the rights given to Borrower and Lender hereunder upon a Default by the other
constitute the right to cause the liquidation of a securities contract and the
right to set off mutual debts and claims in connection with a securities
contract, as such terms are used in Sections 555 and 362(b)(6) of the Bankruptcy
Code. Each party hereto further agrees and acknowledges that if a party hereto
is an "insured depository institution," as such term is defined in the Federal
Deposit Insurance Act, as amended ("FOIA"), then each Loan hereunder is a
"securities contract " and "qualified financial contract," as such terms are
defined in the FOIA and any rules, orders or policy statements thereunder.
10.2 Borrower agrees to be liable as principal with respect to its
obligations hereunder.
10.3 Lender agrees either (a) to be liable as principal with respect to
its obligations hereunder or (b) to execute and comply fully with the provisions
of Annex I (the terms and conditions of which Annex are incorporated herein and
made a part hereof.
10.4 Promptly upon (and in any event within seven (7) Business Days
after) demand by Lender, Borrower shall furnish Lender with Borrower's most
recent publicly-available financial statements and any other financial
statements mutually agreed upon by Borrower and Lender. Unless otherwise agreed,
if Borrower is subject to the requirements of Rule 17a-5(c) under the Exchange
Act, it may satisfy the requirements of this Section by furnishing Lender with
its most recent statement required to be furnished to customers pursuant to such
Rule.
10.5 Except to the extent required by applicable law or regulation or
as otherwise agreed, Borrower and Lender agree that Loans hereunder shall in no
event be "exchange contracts" for purposes of the rules of any securities
exchange and that Loans hereunder shall not be governed by the buy-in or similar
rules of any such exchange, registered national securities or other
self-regulatory organization.
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11. Events.
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All Loans hereunder may, at the option of the non-defaulting party
exercised by notice to the defaulting party (which option shall be deemed to
have been exercised. even if no notice is given, immediately upon the occurrence
of an event specified in subsection (e) below), be terminated immediately upon
the occurrence of any one or more of the following events (individually, a
"Default"):
(a) if any Loaned Securities shall not be transferred to Lender
upon termination of the Loan as required by Section 5;
(b) if any Collateral shall not be transferred to Borrower upon
termination of the Loan as required by Sections 3.3 and 5;
(c) if either party shall fail to transfer Collateral as required
by Section 8;
(d) if either party (i) shall fail to transfer to the other party
amounts in respect of distributions required to be transferred
by Section 7, (ii) shall have received notice of such failure
from the non-defaulting party, and (iii) shall not have cured
such default by the Cutoff Time on the next day after such
notice on which a transfer of cash may be effected in
accordance with Section 16;
(e) if (i) either party shall commence as debtor any case or
proceeding under any bankruptcy, insolvency, reorganization,
liquidation, dissolution or similar law, or seek the
appointment of a receiver, conservator, trustee, custodian or
similar official for such party or any substantial part of its
property, (ii) any such case or proceeding shall be commenced
against either party, or another shall seek such an
appointment, or any application shall be filed against either
party for a protective decree under the provisions of the
Securities Investor Protection Act of 1970, which (A) is
consented to or not timely contested by such party, (B)
results in the entry of an order for relief, such an
appointment, the issuance of such a protective decree or the
en" of an order having a similar effect, or (C) is not
dismissed within 15 days, (iii) either party shall make a
general assignment for the benefit of creditors, or (iv)
either party shall admit in writing its inability to pay its
debts as they become due;
(f) if either party shall have been suspended or expelled from
membership or participation in any national securities
exchange or registered national securities association of
which it is a member or other self-regulatory organization to
whose rules it is subject or if it is suspended from dealing
in securities by any federal or state government agency
thereof.
(g) if either party shall have 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 or agency thereof;
(h) if any representation made by either party in respect of this
Agreement or any Loan or Loans hereunder shall be incorrect or
untrue in any material respect during the term of any Loan
hereunder;
(i) if either party notifies the other, orally or in writing, of
its inability to or its intention not to perform its
obligations hereunder or otherwise disaffirms, rejects or
repudiates any of its obligations hereunder; or
(j) if either party (i) shall fail to perform any material
obligation under this Agreement not specifically set forth in
clauses (a) through (i) above, including but not limited to
the payment of fees as required by Section 4, and the payment
of transfer taxes as required by Section 14, (ii) shall have
received notice of such failure from the nondefaulting party
and (iii) shall not have cured such failure by the Cutoff Time
on the next day after such notice on which a transfer of cash
may be effected under Section 16.
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12. Lender's Remedies.
------------------
Upon the occurrence of a Default under Section 11 entitling Lender to
terminate all Loans hereunder, Lender shall have the right (without further
notice to Borrower), in addition to any other remedies provided herein or under
applicable law, (a) to purchase a like amount of Loaned Securities ("Replacement
Securities") in the principal market for such securities in a commercially
reasonable manner, (b) to sell any Collateral in the principal market for such
Collateral in a commercially reasonable manner and (c) to apply and set off the
Collateral and any proceeds thereof (including any amounts drawn under a letter
of credit supporting any Loan) against the payment of the purchase price for
such Replacement Securities and any amounts due to Lender under Sections 4, 7,
14 and 17. In the event Lender shall exercise such rights. Borrower's obligation
to return a like amount of the Loaned Securities shall terminate. Lender may
similarly apply the Collateral and any proceeds thereof to any other obligation
of Borrower under this Agreement, including Borrower's obligations with respect
to distributions paid to Borrower (and not forwarded to Lender) in respect of
Loaned Securities. In the event that (i) the purchase price of Replacement
Securities (plus all other amounts, if any, due to Lender hereunder) exceeds
(ii) the amount of the Collateral, Borrower shall be liable to Lender for the
amount of such excess together with interest thereon at a rate equal to (A) in
the case of purchases of Foreign Securities, LIBOR, (B) in the case of purchases
of any other securities (or other amounts, if any, due to Lender hereunder), the
Federal Funds Rate or (c) such other rate as may be specified in Schedule B, in
each case as such rate fluctuates from day to day, from the date of such
purchase until the date of payment of such excess. As security for Borrower's
obligation to pay such excess, Lender shall have, and Borrower hereby grants, a
security interest in any property of Borrower then held by or for Lender and a
right of set off with respect to such property and any other amount payable by
Lender to Borrower. The purchase price of Replacement Securities purchased under
this Section 12 shall include, and the proceeds of any sale of Collateral shall
be determined after deduction of, broker's fees and commissions and all other
reasonable costs, fees and expenses related to such purchase or sale (as the
case may be). In the event Lender exercises its rights under this Section 12.
Lender may elect in its sole discretion, in lieu of purchasing all or a portion
of the Replacement Securities or selling all or a portion of the Collateral, to
be deemed to have made, respectively, such purchase of Replacement Securities or
sale of Collateral for an amount equal to the price therefor on the date of such
exercise obtained from a generally recognized source or the most recent closing
bid quotation from such a source. Subject to Section 19, upon the satisfaction
of all obligations hereunder, any remaining Collateral shall be returned to
Borrower.
13. Borrower's Remedies.
--------------------
Upon the occurrence of a Default under Section 11 entitling Borrower to
terminate all Loans hereunder, Borrower shall have the right (without further
notice to Lender), in addition to any other remedies provided herein or under
applicable law, (a) to purchase a like amount of Collateral ("Replacement
Collateral") in the principal market far such Collateral in a commercially
reasonable manner, (b) to sell a like amount of the Loaned Securities in the
principal market for such securities in a commercially reasonable manner and (c)
to apply and set off the Loaned Securities and any proceeds thereof against (i)
the payment of the purchase price for such Replacement Collateral (ii) Lender's
obligation to return any cash or other Collateral and (iii) any amounts due to
Borrower under Sections 4, 7 and 17. In such event, Borrower may treat the
Loaned Securities as its own and Lender's obligation to return a like amount of
the Collateral shall terminate; provided, however, that Lender shall immediately
return any letters of credit supporting any Loan upon the exercise or deemed
exercise by Borrower of its termination rights under Section 1 1. Borrower may
similarly apply the Loaned Securities and any proceeds thereof to any other
obligation of Lender under this Agreement, including Lender's obligations with
respect to distributions paid to Lender (and not forwarded to Borrower) in
respect of Collateral. In the event that (i) the sales price received from such
Loaned Securities is less than (ii) the purchase price of Replacement Collateral
(plus the amount of any cash or other Collateral not replaced by Borrower and
all other amounts, if any, due to Borrower hereunder), Lender shall be liable to
Borrower for the amount of any such deficiency, together with interest on such
amounts at a rate equal to (A) in the case of Collateral consisting of Foreign
Securities, LIBOR, (B) in the case of Collateral consisting of any other
securities (or other amounts due, if any, to Borrower hereunder), the Federal
Funds Rate or (c) such other rate as may be specified in Schedule B, in each
case as such rate fluctuates from day to day, from the date of such sale until
the date at payment at such deficiency. As security for Lender's obligation to
pay such deficiency, Borrower shall have, and Lender hereby grants, a security
interest in any property of Lender then held by or for Borrower and a right of
setoff with respect to such property and any other amount payable by Borrower to
Lender. The purchase price of any Replacement Collateral purchased under this
Section 13 shall include, and the proceeds of any sale of Loaned Securities
shall be determined after deduction of broker's fees and commissions and all
other reasonable costs, fees and expenses related to such purchase or sale (as
the case may be). In the event Borrower exercises its rights under this Section
13, Borrower may elect in its sole discretion,
- 8 -
19
in lieu of purchasing all or a portion of the Replacement Collateral or selling
all or a portion at the Loaned Securities, to be deemed to have made,
respectively, such purchase of Replacement Collateral or sale of Loaned
Securities for an amount equal to the price therefor on the date of such
exercise obtained from a generally recognized source or the most recent closing
bid quotation from such a source. Subject to Section 19, upon the satisfaction
of all Lender's obligations hereunder. any remaining Loaned Securities (or
remaining cash proceeds thereof shall be returned to Lender. Without limiting
the foregoing, the parties hereto agree that they intend the Loans hereunder to
be loans of securities. If, however, any Loan is deemed to be a loan of money by
Borrower to Lender, then Borrower shall have, and Lender shall be deemed to have
granted, a security interest in the Loaned Securities and the proceeds thereof.
14. Transfer Taxes.
--------------
All transfer taxes with respect to the transfer of the Loaned
Securities by Lender to Borrower and by Borrower to Lender upon termination of
the Loan shall be paid by Borrower.
15. Market Value.
------------
15.1 Unless otherwise agreed, if the principal market for the
securities to be valued is a national securities exchange in the United States,
their market value shall be determined by their last sale price on such exchange
on the preceding Business Day or, if there was no sale on that day, by the last
sale price an the next preceding Business Day on which there was a sale on such
exchange, all as quoted on the Consolidated Tape or, if not quoted on, the
Consolidated Tape, then as quoted by such exchange.
15.2 Except as provided in Section 15.3 or 15.4 or as otherwise agreed,
if the principal market for the securities to be valued is the over-the-counter
market, their market value shall be determined as follows. If the securities are
quoted on the National Association of Securities Dealers Automated Quotations
System ("NASDAQ"), their market value shall be the closing sale price on NASDAQ
on the preceding Business Day or, if the securities are issues for which last
sale prices are not quoted on NASDAQ, the closing bid price on such day. It the
securities to be valued are not quoted on NASDAQ, their market value shall be
the highest bid quotation as quoted in any of The Wall Street Journal, the
National Quotation Bureau pink sheets, the Salomon Brothers quotation sheets,
quotations sheets of registered market makers and, if necessary, dealers'
telephone quotations on the preceding Business Day. In each case, if the
relevant quotation did not exist on such day, then the relevant quotation an the
next preceding Business Day in which there was such a quotation shall be the
market value.
15.3 Unless otherwise agreed, if the securities to be valued are
Government Securities, their market value shall be the average of the bid and
ask prices as quoted on Prophesy at 3:30 P.M. New York time on the Business Day
preceding the date on which such determination is made. If the securities are
not so quoted on such day, their market value shall be determined as of the next
preceding Business Day on which they were so quoted. If the securities to be
valued are Government Securities that are not quoted on Prophesy, their market
value shall be determined as of the close of business on the preceding Business
Day in accordance with market practice for such securities.
15.4 Unless otherwise agreed, it the securities to be valued are
Foreign Securities, their market value shall be determined as of the close of
business an the preceding Business Day in accordance with market practice in the
principal market for such securities.
15.5 Unless otherwise agreed, the market value of a letter of credit
shall be the undrawn amount thereof.
15.6 All determinations of market value under Sections 15.1, 15.2, 15.3
and 15.4 shall include, where applicable, accrued interest to the extent not
already included therein (other than any interest transferred to the other party
pursuant to Section 7), unless market practice with respect to the valuation of
such securities in connection with securities loans is to the contrary. All
determinations of market value that are required to be made at the close of
trading on any Business Day pursuant to Section 8 or otherwise hereunder shall
be made as if being determined at the commencement of trading on the next
Business Day. The determinations of market value provided for in this Section 15
shall apply for all purposes under this Agreement, except for purposes of
Sections 12 and 13.
- 9 -
20
16. Transfers.
---------
16.1 All transfers of securities hereunder shall be by (a) physical
delivery of certificates representing such securities together with duly
executed stock and bond transfer powers, as the case may be, with signatures
guaranteed by a bank or a member firm of the New York Stock Exchange, Inc., (b)
transfer an the books of a Clearing Organization, or (c) such other means as
Borrower and Lender may agree. In every transfer of securities hereunder, the
transferor shall take all steps necessary (i) to effect a "transfer" under
Section 8-313 of the New York Uniform Commercial Code or, where applicable,
under any U.S. federal regulation governing transfers of securities and (ii) to
provide the transferee with comparable rights under any applicable foreign law
or regulation.
16.2 All transfers of cash Collateral hereunder shall be by (a) wire
transfer in immediately available, freely transferable funds or (b) such other
means as Borrower and Lender may agree. All other transfers of cash hereunder
shall be made in accordance with the preceding sentence or by delivery of a
certified or official bank check representing next day New York Clearing House
Funds.
16.3 All transfers of a letter of credit from Borrower to Lender shall
be made by physical delivery to Lender of an irrevocable letter of credit issued
by a "bank" as defined in Section 3(a)(6)(A)-(C) of the Exchange Act. Transfer
of a letter of credit from Lender to Borrower shall be made by causing such
letter of credit to be returned or by causing the amount of such letter of
credit to be reduced to the amount required after such transfer.
16.4 A transfer of securities, cash or letters of credit may be
effected under this Section 16 on any day except (a) a day on which the
transferee is closed for business at its address set forth in Schedule A hereto
or (b) a day on which a Clearing Organization or wire transfer system is closed,
it the facilities of such Clearing Organization or wire transfer system are
required to effect such transfer.
17. Contractual Currency.
--------------------
17.1 Borrower and Lender agree that: (a) any payment in respect of a
distribution under Section 7 shall be made in the currency in which the
underlying distribution of cash was made; (b) any return of cash shall be made
in the currency in which the underlying transfer of cash was made and (c) any
other payment of cash in connection with a Loan under this Agreement shall be in
the currency agreed upon by Borrower and Lender in connection with such Loan
(the currency established under clause (a), (b) or (c) hereinafter referred to
as the "Contractual Currency"). Notwithstanding the foregoing, the payee of any
such payment may, at its option, accept tender thereof in any other currency:
provided, however, that, to the extent permitted by applicable law.
the obligation of the payor to make such payment will be discharged only to the
extent of the amount of Contractual Currency that such payee may, consistent
with normal banking procedures, purchase with such other currency (after
deduction of any premium and costs of exchange) on the banking day next
succeeding its receipt of such currency.
17.2 If for any reason the amount in the Contractual Currency received
under Section 17.1, including amounts received after conversion of any recovery
under any judgment or order expressed in a currency other than the Contractual
Currency, falls short of the amount in the Contractual Currency due in respect
of this Agreement, the party required to make the payment will (unless a Default
has occurred and such party is the non-defaulting party) as a separate and
independent obligation and to the extent permitted by applicable law,
immediately pay such additional amount in the Contractual Currency as may be
necessary to compensate for the shortfall.
17.3 If for any reason the amount in the Contractual Currency received
under Section 17.1 exceeds the amount in the Contractual Currency due in respect
of this Agreement, then the party receiving the payment will (unless a Default
has occurred and such party is the non-defaulting party) refund promptly the
amount of such excess.
18. ERISA.
-----
Lender shall, if any of the securities transferred to the Borrower
hereunder for any Loan have been or shall be obtained, directly or indirectly,
from or using the assets of any Plan, so notify Borrower in writing upon the
execution of the Agreement or upon initiation of such Loan under Section 1.1. If
Lender so notifies Borrower, then Borrower and
- 10 -
21
Lender shall conduct the Loan in accordance with the terms and conditions of
Department of Labor Prohibited Transaction Exemption 81-6 (46 Fed. Reg. 7527,
Jan. 23, 1981; as amended, 52 Fed. Reg. 18754, May 19, 1987), or any successor
thereto (unless Borrower and Lender have agreed prior to entering into a Loan
that such Loan will be conducted in reliance on another exemption, or without
relying on any exemption, from the prohibited transaction provisions of Section
406 of the Employee Retirement Income Security Act of 1974, as amended, and
Section 4975 of the Internal Revenue Code of 1986, as amended). Without limiting
the foregoing and notwithstanding any other provision of this Agreement. if the
Loan will be conducted in accordance with Prohibited Transaction Exemption 81-6,
then:
(a) Borrower represents and warrants to Lender that it is either
(i) a bank subject to federal or state supervision, (ii) a
broker-dealer registered under the Exchange Act or (iii)
exempt from registration under Section 15(a)(1) of the
Exchange Act as a dealer in Government Securities.
(b) Borrower represents and warrants that, during the term of any
Loan hereunder, neither Borrower nor any affiliate of Borrower
has any discretionary authority or control with respect to the
investment of the assets of the Plan involved in the Loan or
renders investment advice (within the meaning of 29 C.F.R.
Section 2510.321(c)) with respect to the assets of the Plan
involved in the Loan. Lender agrees that, prior to or at the
commencement of any Loan hereunder, it will communicate to
Borrower information regarding the Plan sufficient to identify
to Borrower any person or persons that have discretionary
authority or control with respect to the investment of the
assets of the Plan involved in the Loan or that render
investment advice (as defined in the preceding sentence) with
respect to the assets of the Plan involved in the Loan. In the
event Lender fails to communicate and keep current during the
term of any Loan such information, Lender rather than Borrower
shall be deemed to have made the representation and warranty
in the first sentence of this clause (b).
(c) Borrower and Lender agree that:
(i) the term "Collateral" shall mean cash, securities
issued or guaranteed by the United States government
or its agencies or instrumentalities, or irrevocable
bank letters of credit issued by a person other than
Borrower or an affiliate thereof;
(ii) prior to the making of any Loans hereunder, Borrower
shall provide Lender with (A) the most recent
available audited statement of Borrower's financial
condition and (B) the most recent available unaudited
statement of Borrower's financial condition (if more
recent than the most recent audited statement), and
each Loan made hereunder shall be deemed a
representation by Borrower that there has been no
material adverse change in Borrower's financial
condition subsequent to the date of the latest
financial statements or information furnished in
accordance herewith;
(iii) the Loan may be terminated by Lender at any time,
whereupon Borrower shall deliver the Loaned
Securities to Lender within the lesser of (A) the
customary delivery period for such securities; (B)
five Business Days and (c) the time negotiated for
such delivery between Borrower and Lender; provided,
however, that Borrower and Lender may agree to a
longer period only if permitted by Prohibited
Transaction Exemption 81-6; and
(iv) the Collateral transferred shall be security only for
obligations of Borrower to the Plan with respect to
Loans, and shall not be security for any obligation
of Borrower to any agent or affiliate of the Plan.
19. Single Agreement. Borrower and Lender acknowledge that, and have entered
into this Agreement in reliance on the fact that, all Loans hereunder constitute
a single business and contractual relationship and have been entered into in
consideration of each other. Accordingly, Borrower and Lender hereby agree that
payments, deliveries and other transfers made by either of them in respect of
any Loan shall be deemed to have been made in consideration of payments,
deliveries and other transfers in respect of any other Loan hereunder, and the
obligations to make any such payments, deliveries and
- 11 -
22
other transfers may be applied against each other and netted. In addition,
Borrower and Lender acknowledge that, and have entered into this Agreement in
reliance an the fact that, all Loans hereunder have been entered into in
consideration of each other. Accordingly, Borrower and Lender hereby agree that
(a) each shall perform all of its obligations in respect of each Loan hereunder,
and that a default in the performance of any such obligation by Borrower or by
Lender (the "Defaulting Party") in any Loan hereunder shall constitute a default
by the Defaulting Party under all such Loans hereunder, and (b) the
nondefaulting party shall be entitled to set off claims and apply property held
by it in respect of any Loan hereunder against obligations owing to A in respect
of any other Loan with the Defaulting Party.
20. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
21. Waiver. The failure of a party to this Agreement 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 or any other term of this Agreement. All waivers in
respect of a Default must be in writing.
22. Remedies. All remedies hereunder and all obligations with respect to any
Loan shall survive the termination of the relevant Loan, return of Loaned
Securities or Collateral and termination of this Agreement.
23. Notices and Other Communications. Unless another address is specified in
writing by the respective party to whom any notice or other communication is to
be given hereunder, all such notices or communications shall be in writing or
confirmed in writing and delivered at the respective addresses set forth in
Schedule A attached hereto. All notices shall be effective upon actual receipt,
provided, however, that if any notice shall be received by a party on a day on
which such party is not open for business at its office located at the address
set forth in Schedule A. Such notice shall be deemed to have been received by
such party at the opening of business an the next day on which such party is
open for business at such address.
24. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
24.1 EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO
THE NONEXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE
COURT SITTING IN NEW YORK CITY, AND ANY APPELLATE COURT FROM ANY SUCH COURT,
SOLELY FOR THE PURPOSE OF ANY SUIT, ACTION OR PROCEEDING BROUGHT TO ENFORCE ITS
OBLIGATIONS HEREUNDER OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY LOAN
HEREUNDER AND (B) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, ANY
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT AND ANY RIGHT OF JURISDICTION ON ACCOUNT OF ITS PLACE OF
RESIDENCE OR DOMICILE.
24.2 EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY
HAVE TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
25. Miscellaneous. This Agreement supersedes any other agreement between the
parties hereto concerning loans of securities between Borrower and Lender. This
Agreement shall not be assigned by either party without the prior written
consent of the other party and any attempted assignment without such consent
shall be null and void. Subject to the foregoing, this Agreement shall be
binding upon and shall ensure to the benefit of Borrower and Lender and their
respective heirs, representatives, successors and assigns. This Agreement may be
terminated by either party upon written notice to the other, subject only to
fulfillment of any obligations then outstanding. This Agreement shall not be
modified, except by an instrument in writing signed by the party against whom
enforcement is sought. The parties hereto acknowledge and agree that, in
connection with this Agreement and each Loan hereunder, time is of the essence.
Each provision and agreement herein shall be treated as separate and independent
from any other provision herein and shall be enforceable notwithstanding the
unenforceability of any such other provision or agreement.
- 12 -
23
26. Definitions. For the purposes hereof:
26.1 " Broker-Dealer" shall mean any person that is a broker (including
a municipal securities broker), dealer, municipal securities dealer, government
securities broker or government securities dealer as defined in the Exchange
Act, regardless of whether the activities of such person are conducted; in the
United States or otherwise require such person to register with the Securities
and Exchange Commission or other regulatory body.
26.2 "Business Day" shall mean, with respect to any Loan hereunder, a
day on which regular trading occurs in the principal market for the Loaned
Securities subject to such Loan, provided, however, that for purposes of Section
15, such term shall mean a day on which regular trading occurs in the principal
market for the securities whose value is being determined. Notwithstanding the
foregoing, (i) for purposes of Section 8,"Business Day" shall mean any day on
which regular trading occurs in the principal market tar any Loaned Securities
or for any securities Collateral under any outstanding Loan hereunder and "next
Business Day" shall mean the next day on which a transfer of Collateral may be
effected in accordance with Section 16; and (ii) in no event shall a Saturday or
Sunday be considered a Business Day.
26.3 "Clearing Organization" shall mean The Depository Trust Company,
or, if agreed to by Borrower and Lender, such other clearing agency at which
Borrower (or Borrower's agent) and Lender (or Lender's agent) maintain accounts,
or a book-entry system maintained by a Federal Reserve Bank.
26.4 "Collateral" shall mean, whether now owned or hereafter acquired
and to the extent permitted by applicable law, (a) any property which Borrower
and Lender agree shall be acceptable collateral prior to the Loan and which is
transferred to Lender pursuant to Section 3 or 8 (including as collateral, for
definitional purposes, any letters of credit mutually acceptable to Lender and
Borrower), (b) any property substituted therefor pursuant to Section 3.5, (c)
all accounts in which such property is deposited and all securities and the like
in which any cash collateral is invested or reinvested, and (d) any proceeds of
any of the foregoing. For purposes of return of Collateral by Lender or purchase
or sale of securities pursuant to Section 12 or 13, such term shall include
securities of the same issuer, class and quantity as the Collateral initially
transferred by Borrower to Lender.
26.5 "Customer" shall mean any person that is a customer of Borrower
under Rule 15c3-3 under the Exchange Act or any comparable regulation of the
Secretary of the Treasury under Section 15C of the Exchange Act (to the extent
that Borrower is subject to such Rule or comparable regulation).
26.6 "Cutoff Time" shall mean a time on a Business Day by which a
transfer of cash, securities or other property must be made by Borrower or
Lender to the other, as shall be agreed by Borrower and Lender in Schedule B or
otherwise orally or in writing or, in the absence of any such agreement, as
shall be determined in accordance with market practice.
26.7 "Default" shall have the meaning assigned in Section 11.
26.8 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
26.9 "Federal Funds Rate" shall mean the rate of interest (expressed as
an annual rate), as published in Federal Reserve Statistical Release H.15(519)
or any publication substituted therefor, charged for federal funds (dollars in
immediately available funds borrowed by banks an overnight unsecured basis) on
that day or, if that day is not a banking day in New York City, on the next
preceding banking day.
26.10 "Foreign Securities" shall mean, unless otherwise agreed,
securities that are principally cleared and settled outside the United States.
26.11 "Government Securities" shall mean government securities as
defined in Section 3(a)(42)(A)-(C) of the Exchange Act.
26.12 "LIBOR" shall mean for any date, the offered rate for deposits in
U.S. dollars for a period of three months which appears an the Reuters Screen
LIBO page as of 11:00 A.M., London time, an such date (or, if at least two such
rates appear, the arithmetic mean of such rates).
- 13 -
24
26.13 "Loan" shall mean a loan of securities hereunder.
26.14 "Loaned Security" shall mean any security which is a security as
defined in the Exchange Act, transferred in a Loan hereunder until such security
(or an identical security) is transferred back to Lender hereunder, except that,
if any new or different security shall be exchanged for any Loaned Security by
recapitalization, merger, consolidation or other corporate action, such new or
different security shall, effective upon such exchange, be deemed to become a
Loaned Security in substitution for the former Loaned Security for which such
exchange is made. For purposes of return of Loaned Securities by Borrower or
purchase or sale of securities pursuant to Section 12 or 13, such term shall
include securities of the same issuer, class and quantity as the Loaned
Securities, as adjusted pursuant to the preceding sentence.
26.15 "Plan" shall mean (a) any "employee benefit plan" as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974 which is
subject to Pan 4 of Subtitle B of Title 1 of such Act: (b) any "plan" as defined
in Section 4975(e)(1) of the Internal Revenue Code of 1986; or (c) any entity
the assets of which are deemed to be assets of any such "employee benefit plan"
or "plan" by reason of the Department of Labor's plan asset regulation. 29
C.F.R. Section 2510.3101.
Bank One Trust Company, NA
By:_______________________________
Title:____________________________
Date:_____________________________
By:_______________________________
Title:____________________________
Date:_____________________________
- 14 -
25
ANNEX 1
-------
Lender Acting as Agent
----------------------
This Annex sets forth the terms and conditions governing all
transactions in which a party lending securities ("Agent") in a Loan is acting
as agent for one or more third parties (each a "Principal"). Unless otherwise
defined, capitalized terms used in this Annex shall have the meanings assigned
in the Securities Loan Agreement of which it forms a part (such agreement,
together with this Annex and any other schedules or exhibits, referred to as the
"Agreement") and, unless otherwise specified, all section references herein are
intended to refer to sections of such Securities Loan Agreement.
1. Additional Representations and Warranties. In addition to the
representations and warranties set forth in Section 9 of the Agreement, Agent
hereby makes the following representations and warranties, which shall continue
during the term of any Loan; Principal has duly authorized Agent to execute and
deliver the Agreement an its behalf. has the power to so authorize Agent and to
enter into the Loans contemplated by the Agreement and to perform the
obligations of Lender under such Loans, and has taken all necessary action to
authorize such execution and delivery by Agent and such performance by it.
2. Identification. Agent agrees (a) to provide Borrower prior to any
Loan under the Agreement with a written list of Principals for which it intends
to act as Agent (which list may be amended in writing from time to time with the
consent of Borrower), and (b) to provide Borrower, before the close of business
on the next Business Day after orally agreeing to enter into a Loan, with notice
of the specific Principal or Principals for whom it is acting in connection with
such Loan. If (i) Agent fails to identify such Principal or Principals prior to
the close of business an such next Business Day or (ii) Borrower shall determine
in its sole discretion that any Principal or Principals identified by Agent are
not acceptable to R. Borrower may reject and rescind any Loan with such
Principal or Principals, return to Agent any Loaned Securities previously
transferred to Borrower and refuse any further performance under such Loan, and
Agent shall immediately return to Borrower any Collateral previously transferred
to Agent in connection with such Loan; provided, however, that (A) Borrower
shall promptly (and in any event within one Business Day) notify Agent of its
determination to reject and rescind such Loan and (B) to the extent that any
performance was rendered by any party under any Loan rejected by Borrower, such
party shall remain entitled to any fees or other amounts that would have been
payable to it with respect to such performance if such Loan had not been
rejected. Borrower acknowledges that Agent shall not have any obligation to
provide R with confidential information regarding the financial status of its
Principals; Agent agrees, however, that it will assist Borrower in obtaining
from Agent's Principals such information regarding the financial status of such
Principals as Borrower may reasonably request.
3. Limitation of Agent's Liability. The parties expressly acknowledge
that if the representations and warranties of Agent under the Agreement,
including this Annex, are true and correct in all material respects during the
term of any Loan and Agent otherwise complies with the provisions of this Annex,
then (a) Agent's obligations under the Agreement shall not include a guarantee
of performance by As Principal or Principals and (b) Borrowers remedies shall
not include a right of set off against obligations, if any, of Agent arising in
other transactions in which Agent is acting as principal.
4. Multiple Principals.
(a) In the event that Agent proposes to act for more than one Principal
hereunder, Borrower and Agent shall elect whether (i) to treat Loans under this
Agreement as transactions entered into on behalf of separate Principals or (ii)
to aggregate such Loans as if they were transactions by a single Principal.
Failure to make such an election in writing shall be deemed an election to treat
Loans under this Agreement as transactions on behalf of separate Principals.
- 1 -
26
(b) In the event that Borrower and Agent elect (or are deemed to elect)
to treat Loans under the Agreement as transactions on behalf of separate
Principals. the parties agree that (i) Agent will provide Borrower, together
with the notice described in Section 2(b) of this Annex, notice specifying the
portion of each Loan allocable to the account of each of the Principals for
which it is acting (to the extent that any such Loan is allocable to the account
of more than one Principal); (ii) the portion of any individual Loan allocable
to each Principal shall be deemed a separate Loan under the Agreement; (iii) the
▇▇▇▇ to market obligations of Borrower and Lender under Section 8 of the
Agreement shall be determined on a Loan-by-Loan basis (unless the parties agree
to determine such obligations on a Principal-by-Principal basis); and (iv)
Borrower's and Lender's remedies under the Agreement upon the occurrence of a
Default shall be determined as if Agent had entered into a separate Agreement
with Borrower on behalf of each of its Principals.
(c) In the event that Borrower and Agent elect to treat Loans under
this Agreement as if they were transactions by a single Principal, the parties
agree that (i) Agent's notice under Section 2(b) of this Annex need only
identify the names of its Principals but not the portion of each Loan allocable
to each Principal's account; (ii) the ▇▇▇▇ to market obligations of Borrower and
Lender under Section a shall, subject to any greater requirement imposed by
applicable law, be determined on an aggregate basis for all Loans entered into
by Agent on behalf of any Principal; and (iii) Borrower's and Lender's remedies
upon the occurrence of a Default shall be determined as if all Principals were a
single Lender.
(d) Notwithstanding any other provision of the Agreement (including
without limitation this Annex), the parties agree that any transactions by Agent
on behalf of a Plan shall be treated as transactions on behalf of separate
Principals in accordance with Section 4(b) of this Annex (and all ▇▇▇▇ to market
obligations of the parties shall be determined on a Loan-by-Loan basis).
5. Interpretation of Terms. All references to "Lender" in the Agreement
shall, subject to the provisions of this Annex (including among other provisions
the limitations on Agent's liability in Section 3 of this Annex), be construed
to reflect that (i) each Principal shall have, in connection with any Loan or
Loans entered into by 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, and (ii) Agent's Principal or
Principals have designated Agent as their sole Agent for performance of Lender's
obligations to Borrower and for receipt of performance by Borrower of its
obligations to Lender in connection with any Loan or Loans under the Agreement
(including, among other things, as agent for each Principal in connection with
transfers of securities, cash or other property and as agent for giving and
receiving all notices under the Agreement). Both Agent and its Principal or
Principals shall be deemed parties" to the Agreement and all references to a
"party" or "either party" in the Agreement shall be deemed revised accordingly
(and any Default by Agent under paragraph (e) or any other applicable provision
of Section 11 shall be deemed a Default by Lender).
Bank One Trust Company, NA
By:_______________________________
Title:____________________________
Date:_____________________________
By:_______________________________
Title:____________________________
Date:_____________________________
- 2 -
27
Schedule A
----------
NAMES AND ADDRESSES FOR COMMUNICATIONS
If to Lender: Bank One Trust Company, N.A.
Attn: Securities Lending
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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or, if by postal service,
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IF TO BORROWER:
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AMENDMENT TO MASTER
SECURITIES LOAN AGREEMENT
This Amendment to the Master Securities Loan Agreement (the
"Agreement") is entered into by and between Bank One Trust Company, N. A. in its
capacity as agent for its customers and not individually (the "Lender") and
____________________________________ (the "Borrower") who hereby agree to amend
the Agreement as follows:
1. Section 3.1 of the Agreement is hereby deleted in its entirety and the
following is substituted in its place:
3.1 Unless otherwise agreed, Borrower shall, prior to the transfer of
the Loaned Securities to Borrower, but in no case later than the close
of business on the day that such transfer is to occur, transfer to
Lender Collateral with a market value at least equal to a percentage of
the market value of the Loaned Securities agreed to by Borrower and
Lender (which shall be not less than 105% of the market value of the
Loaned Securities if the Loaned Securities are Foreign Securities and
102% of the market value of the Loaned Securities if the Loaned
Securities are securities other than Foreign Securities) (the "Margin
Percentage").
2. Section 3.6 is hereby deleted in its entirety and the following new section
3.6 is substituted in its place:
3.6 Except as otherwise provided in an agreement entered into by
Borrower and Lender pursuant to Section 1.1 or Section 3.5(b), Lender
acknowledges that, in connection with Loans of Government Securities and as
otherwise permitted by applicable law, some securities provided by Borrower as
Collateral under this Agreement may not be guaranteed by the United States.
Section 5 is hereby deleted in its entirety and the following new Section 5 is
substituted in its place:
5. Termination of the Loan. Unless otherwise agreed, (a) Borrower may
terminate a loan on any Business Day by giving notice to Lender prior to 10:00
a.m. in the case of government securities and prior to 11:30 a.m. in the case of
all other securities on such Business Day and transferring the Loaned Securities
to Lender before the Cutoff Time on such Business Day, and (b) Lender may
terminate a loan on a termination date established by a notice given by Lender
to Borrower prior to the close of business on a Business Day. The termination
date established by a termination notice given by Lender to Borrower shall be a
date no earlier than the standard settlement date for trades of the Loaned
Securities entered into on the date of such notice, which date shall, unless
Borrower and Lender agree to the contrary, be (i) in the case of government
securities, the next Business Day following such notice, (ii) in the case of
Foreign Securities, the fifth Business Day following such notice, and (iii) in
the case of all other securities, the third Business Day following such notice.
Unless otherwise agreed, Borrower shall, on or before the Cutoff Time on the
termination date of a Loan, transfer the Loaned Securities to Lender, provided,
however, that after such transfer
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by Borrower, Lender shall transfer the Collateral (as adjusted pursuant to
Section 8) to Borrower in accordance with Section 3.3
4. Section 8.1 is hereby deleted in its entirety and substituting the following
is substituted in its place:
8.1 Borrower shall daily ▇▇▇▇ to market any Loan hereunder and in the
event that at the close of trading on any Business Day the market value
of the Collateral for any Loan to Borrower shall be less than: (i) 102%
of the market value of all the outstanding Loaned Securities which are
Foreign Securities subject to such Loan, and (ii) 100% of the market
value of all the outstanding Loaned Securities other than Foreign
Securities subject to such Loan, Borrower shall transfer additional
Collateral no later than the close of the next Business Day so that the
market value of such additional Collateral, when added to the market
value of the other Collateral for such Loan, shall equal: (i) 105% of
the market value of the Loaned Securities if the Loaned Securities are
Foreign Securities, and (ii) 102% of the market value of the Loaned
Securities if the Loaned Securities are not Foreign Securities.
5. Section 15.3 is hereby amended by deleting the references to "Prophesy" and
replacing them with "Bloomberg."
6. Section 24.1 is hereby amended by deleting the reference to "New York" and
replacing it with "Ohio" and by deleting the reference to "New York City" and
replacing it with "Columbus, Ohio."
7. The second sentence of Section 25 is hereby deleted it is entirety and the
following new sentence is substituted in its place:
This Agreement shall not be assigned by either party without the prior
written consent of the other party and any attempted assignment without such
consent shall be null and void except that Lender may assign this Agreement to
another affiliate of BANC ONE CORPORATION in its capacity as agent for its
customers and not individually without the consent of the Borrower.
8. Section 26.2 shall be deleted in its entirety and the following shall be
substituted in its place:
26.2 "Business Day" shall mean, with respect to any Loan hereunder, a
day on which regular trading occurs in the principal market for the
Loaned Securities subject to such Loan, provided, however, that for
purpose of Section 15, such term shall mean a day on which regular
trading occurs in the principal market for the securities whose value
is being determined. Notwithstanding the foregoing, (i) if the
securities are Foreign Securities, "Business Day" shall in no event
include a day on which the Lender or its agent are not open for
business; (ii) in no event shall a Saturday or Sunday be considered a
Business Day; and (iii) subject to sections (i) and (ii) above, for
purposes of Section 8, "Business Day" shall mean any day on which
regular trading occurs in the principal market for any Loaned
Securities or for any securities Collateral under any outstanding Loan
hereunder and subject to sections (i) and (ii)
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above, "next Business Day" shall mean the next day on which a transfer
of Collateral may be effected in accordance with Section 16.
9. Section 26.6 is hereby deleted in entirety and the following new Section 26.6
is substituted in its place:
"Cutoff Time" shall mean a time on a Business Day by which transfer of
cash, securities or other property must be made by Borrower or Lender to the
other, which for loans of government securities, shall mean the official Fed
wire dealer close on the termination date and which for loans of all other
securities, shall mean the close of the appropriate depository on the
termination date or such other times as shall be agreed upon by Borrower and
Lender orally or in writing.
10. The Agreement as amended by this Amendment constitutes the entire agreement
between the parties hereto with respect to the transactions contemplated hereby
and supersedes all prior discussions, understandings, agreements and
negotiations between the parties hereto with respect to such transactions. The
headings in this Amendment are for convenience only and shall not be used in
construing this Amendment.
IN WITNESS WHEREOF, this Amendment to the Agreement is executed by Bank One
Trust Company, N. A. in its capacity as agent for its Customers and not
individually and _____________________________________________.
BANK ONE TRUST COMPANY, N. A.
----------------------------- ___________________________________
AS AGENT FOR ITS CUSTOMERS
AND NOT INDIVIDUALLY
BY:_____________________________
BY:________________________________
psaamend: 10/1/97
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One
Group Intl.
1/8/98
SECURITIES LENDING AGREEMENT
EXHIBIT C
Approved Borrowers
BT Alex. ▇▇▇▇▇, Inc. (fka BT Securities Corporation)/Bankers Trust
Company
Bear Steams & Co., Inc./Bear Steams Securities Corporation
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corp.
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇ Brothers Inc.
Maple Partners U.S.A., Inc. (Fka First Marathon America)
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇, Inc./▇▇▇▇▇▇▇ ▇▇▇▇▇ Government
Securities Inc.
▇. ▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co./MS Securities Services
Nomura Securities International, Inc.
PaineWebber, Inc.
Paloma Securities, L. P.
Prudential Securities, Inc.
SBC Warburg Dillon Read
Salomon Brothers, Inc.
Societe Generale Securities Corporation
UBS Securities Corp.
U.S. Clearing Corp.
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SECURITIES LENDING AGREEMENT
EXHIBIT D
International Equity Index Fund
When securities are loaned pursuant to the Securities Lending Agreement dated
January 8, 1998, between The One Group (the "Lender"), Banc One Investment
Advisors Corporation (the "Adviser") and Bank One Trust Company, N.A. (the
"Subcustodian"), the Lender instructs as follows:
1. Types of Collateral. The Adviser may instruct the Subcustodian to
accept the types of collateral checked below when securities are loaned
subject to the terms of the above described Securities Lending
Agreement.
A. Cash
B. Securities issued or guaranteed by the United States
Government or its agencies
2. Investment of Cash Collateral In making the investments of cash
received as collateral discussed in the Securities Lending Agreement,
including income received from such collateral, the Adviser is
authorized and directed to use any of the types of investments (the
"Permitted Investments") checked below:
A. Short term obligations of banks limited to certificates of
deposit and time deposits, including without limitations any
such instrument issued by the Subcustodian or one of its
affiliates.
B. Short term obligations of the United States Government or its
agencies.
C. Repurchase agreements.
D. Money market mutual funds or other securities of any open-end
or closed-end investment company or investment trust
registered under the Investment Company Act of 1940, as
amended., including funds for which Banc One Investment
Advisors serves as investment advisor or administrator.
E. Commercial paper of foreign issuers and obligations of foreign
banks, overseas branches of U.S. banks, and supranational
entities
F. Obligations of supranational agencies.
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3. Maturity of Collateral Investments, The Adviser may instruct the
Subcustodian to make Permitted Investments as authorized in Section 2
that may be of longer or shorter maturity than the term of any
transaction to which they relate, it being understood that "short term"
Permitted Investments shall include Permitted Investments with such
maturities as are described in this section. The maturity of each
Permitted Investment will be based upon Lender instructions, if any,
the Adviser's estimate of the volume of securities that is likely to be
loaned on a continuous basis, the rates available on alternate
investments, interest rate trends, and overall market conditions. The
average weighted maturity of Permitted Investments shall not exceed 90
days, and in no case shall the final maturity of a Permitted Investment
exceed 12 months in the case of fixed rate investments and 36 months in
the case of floating rate investments. The difference between the
average weighted maturity of loan transactions and the average weighted
maturity of Permitted Investments shall not exceed 90 days. For the
purpose of calculating the average weighted maturity of loan
transactions, maturity shall, in the case of "term" loans, mean the
number of days remaining until the termination of the loan transaction,
or in the case of "open" loans, one day. For the purpose of calculating
the average weighted maturity of Permitted Investments, maturity shall
mean: (1) one day in the case of money market mutual funds, master
notes, and other instruments that may be liquidated without notice, (2)
the number of days remaining until the next put date in the case of
securities subject to unconditional and irrevocable puts of the issue
to the obligor, or (3) the actual number of days remaining until the
maturity date for all other Permitted Investments.
The One Group
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("Lender")
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Banc One Investment Advisors Corporation
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("Adviser")
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Bank One Trust Company, N.A.
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("Subcustodian")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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SECURITIES LENDING AGREEMENT
EXHIBIT E
Schedule of Fees
International
The subcustodian shall be paid a fee of 15 basis points, calculated on an annual
basis and accrued daily, based upon the value of collateral received from the
Borrower for each loan under this Agreement.