EXHIBIT 46
SECURITIES LENDING AGENCY CLIENT AGREEMENT
THIS AGREEMENT is made as of the 17TH DAY OF JUNE, 2003 by and between
each of the party or parties listed as Clients on Exhibit 1 to this Agreement
(each a "Client") and UBS Securities LLC ("UBS"). Capitalized terms not
otherwise defined shall have the meanings set forth in Section 14.
Each Client and UBS, intending to be legally bound, agree as follows:
1. APPOINTMENT OF UBS; TERMS OF LOANS.
(a) (i) Each Client hereby authorizes and appoints UBS, and
UBS agrees to act, as Client's agent to effect Loans of Available Securities to
Eligible Borrowers and to provide related administrative services to Client, all
pursuant to the terms and conditions of this Agreement. During the term of this
Agreement, UBS may from time to time, in its sole discretion, contact Eligible
Borrowers on behalf of any Client and lend Available Securities belonging to
that Client ("Lending Client") to those Eligible Borrowers. Before committing to
lend Available Securities to an Eligible Borrower, UBS shall make a reasonable
investigation and determination that the Borrower is creditworthy, and that UBS
has received no notice from the Client or the Custodian that any of the
Available Securities to be lent have been sold.
(ii) The initial Eligible Borrowers for each Client are
listed on Exhibit 2 hereto. Exhibit 2 may be amended by UBS from time to time,
PROVIDED, however, that no such amendment adding an Eligible Borrower shall be
effective with respect to any Client unless approved by that Client, and
PROVIDED FURTHER, that UBS shall amend Exhibit 2 to delete any Eligible Borrower
with respect to any Client promptly following written notice from that Client
directing UBS to do so.
(b) Each Loan shall be made pursuant to an agreement
("Borrowing Agreement") substantially in a form attached as Schedule A hereto
and a supplemental borrower agreement ("Supplemental Agreement") substantially
in a form attached as Schedule B hereto or in such other form as may be approved
by from time to time by Client. The form of the Borrowing Agreement used with
respect to a Loan made on behalf of any Client shall not be amended by UBS in
any material respect except with the prior written consent of that Client. UBS
shall disclose fully to Eligible Borrowers that UBS acts as agent for its
clients and not as principal.
(c) Each Loan shall be terminable by UBS on behalf of Lending
Client or the Borrower upon notice to the other party. At its sole discretion,
UBS may notify any Borrower of the termination of any Loan at any time. UBS will
notify the Borrower of the termination of any Loan on the same day that it is
directed to terminate the Loan by Lending Client if UBS receives such direction
by the Termination Notice Time on a Business Day; if the direction to terminate
is received by UBS after the Termination Notice Time, UBS will notify the
Borrower of the termination of the Loan on the next Business Day. In the case of
notice by UBS, the termination date so established will be no later than: (i) in
the case of
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Loans of Government Securities, the same Business Day as such notice, (ii) in
the case of Foreign Securities, the standard settlement date for trades of the
Loaned Securities entered into on the date of such notice in the principal
market for such securities, or (iii) in all other cases, the third Business Day
following such notice.
2. Authority of UBS with Respect to Loans.
(a) UBS is hereby authorized:
(i) to make, execute, acknowledge and deliver Borrowing
Agreements and any and all other documents or agreements of transfer and
conveyance and any and all other instruments that may be necessary or
appropriate to effect a transfer of Available Securities to Eligible Borrowers
pursuant to a Borrowing Agreement or to complete any Loan; and
(ii) to exercise all of the rights of Lending Client
under the Borrowing Agreement and to do all acts, whether or not expressly
authorized, which it may deem reasonably necessary or proper for the protection
of the Collateral held thereunder.
(b) Each Client acknowledges and agrees that:
(i) if Client's Available Securities or Collateral are,
or under the terms of this Agreement are required to be, held by its Custodian,
Client shall direct its Custodian to take such actions as are necessary or
appropriate to enable UBS to perform its obligations hereunder or under any
Borrowing Agreement;
(ii) UBS shall have full discretion regarding the
selection of the particular Eligible Borrowers to whom Loans of Available
Securities may be made and as to the selection of the particular Available
Securities loaned pursuant to any Loan;
(iii) there is no assurance that Loans will be made at any
time;
(iv) UBS may perform securities lending activities for
other clients of UBS, including clients that are, or that are advised or managed
by, its Affiliates, and UBS may allocate securities lending opportunities among
any or all of its clients using such reasonably impartial methods as UBS may
follow from time to time; and
(v) Client waives the right to vote Loaned Securities or
to provide any consent or take any similar action with respect to any Loaned
Securities. Notwithstanding the foregoing, under the terms of the Borrowing
Agreement, Client shall be entitled to receive any payment made in respect of
any consent solicitation with respect to its Loaned Securities.
(vi) Should a sale, voluntary corporate action, or cash
or non-cash distribution or other action requiring Client selection or
notification occur in respect of any Loaned Securities, Client shall provide UBS
with timely advice of such action.
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(c) If an installment, call or rights issue becomes payable on,
or in respect of any, Loaned Securities, UBS shall use reasonable efforts to
ensure that any timely instructions from Lending Client are complied with, but
UBS shall not be required to make any payment unless Lending Client has first
provided funds to make such payment.
(d) Notwithstanding anything to the contrary herein, UBS agrees
that, with respect to any Collateral provided or to be provided by any Eligible
Borrower for any Loan, UBS will not, without Client's express written
authorization to do so, agree to accept or allow the substitution of any
Collateral other than Eligible Collateral. For purposes of this Agreement, the
dollar amount of any cash transferred to the Client Account by the Eligible
Borrower as Eligible Collateral, shall be deemed to be such Eligible
Collateral's "Market Value" at all times. UBS shall, as permitted under section
8.4 of the Borrowing Agreement, agree with all Borrowers to xxxx, and shall
xxxx, values to market on an Account by Account basis.
3. COLLATERAL; RESPONSIBILITIES OF UBS AND CLIENT.
(a) Under the terms of each Loan, Borrower shall be required to
transfer to UBS or to the Client Account, at or before the inception of the
Loan, Eligible Collateral having a Market Value (determined as of the close of
trading on the preceding Business Day) at least equal to 105% of the Market
Value of any Loaned Securities that are Foreign Securities and 102% of all other
Loaned Securities (the "Required Collateral Level").
(b) UBS shall determine the Market Value of the Loaned
Securities and the Eligible Collateral for each Loan on each Business Day. Under
the terms of each Loan, if at any time the Market Value of the Eligible
Collateral for any Loan is less than 101% of the Market Value of the respective
Loaned Securities (104% if the Loaned Securities are Foreign Securities), then
the Borrower shall be required to transfer to UBS or the Client Account, on or
before the next Business Day, additional Eligible Collateral sufficient to
increase the Market Value of the Eligible Collateral to at least the Required
Collateral Level. For purposes of this calculation, both a decrease in the value
of non-cash collateral and/or an increase in the Market Value of the Loaned
Securities may require additional Eligible Collateral to be transferred. In
accordance with general market practice, UBS will cause all additional
Collateral collected from Borrower, to be transferred to the Client Account, to
the extent that UBS receives it.
(c) (i) If the Collateral Guidelines provide that Collateral
for Client is to be held in its Client Account, UBS shall transfer any
Collateral received by it with respect to Loans for that Client to its Client
Account. If UBS receives such Collateral prior to 3:00 p.m., Eastern time (or,
in the case of cash Collateral, 5:00 p.m., Eastern time), such transfer shall be
made on the same Business Day that the Collateral is transferred to UBS; if such
Collateral received later than that time, such transfer shall be made on the
next Business Day.
(ii) If the Collateral Guidelines do not provide that
Collateral for Client is to be held in its Client Account, UBS shall remit the
net earnings on cash Collateral for such Client to its Client Account on a
monthly basis, within 10 Business Days after the end of the month, and shall use
its best efforts to credit to such Client Account any loan fees paid by
Borrowers to UBS in
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respect of any Loan on the dates that such fees are received by UBS. In each
case, the amount credited to such Clients may be reduced by the amount of any
compensation due to UBS pursuant to Section 6.
(d) Unless otherwise indicated in this Agreement or the
exhibits hereto, or unless otherwise agreed by Client and UBS, UBS shall invest,
or shall arrange for the investment of, all cash Collateral in accordance with
the Investment Guidelines. All investments of cash Collateral shall be for the
account of the Lending Client and shall be solely at the Lending Client's risk.
To the extent consistent with the Investment Guidelines, cash Collateral may be
invested in repurchase agreements with UBS or in investment companies or other
commingled accounts advised or managed by UBS or its Affiliates, and Client
consents to the retention by UBS and its Affiliates of any advisory or other
fees paid by such accounts. If UBS arranges for cash Collateral to be invested
by an investment manager or adviser (other than UBS but including any advisory
Affiliate of UBS) approved by Client, Client will be responsible for any
investment management or advisory fees charged by that investment manager or
adviser.
(e) UBS shall give appropriate and timely directions to Lending
Client or its Custodian with respect to the transfer and re-transfer of any and
all Loaned Securities, Collateral maintained in the Client Account and payments,
distributions and proceeds thereon or thereof, and if the Collateral is
maintained in the Client Account, with respect to the payment of any loan
rebates to Borrowers, and each Lending Client will direct its Custodian to
timely execute such directions.
(f) In the event of any default by any Borrower in respect of
any Loan, UBS shall be responsible for notifying the Lending Client, and UBS
shall take any and all actions in accordance with the Borrowing Agreement
necessary or appropriate to protect the interest of the Lending Client in
respect of the Loan, including without limitation, liquidating or, if the
Collateral is maintained in the Client Account, directing Lending Client or its
Custodian to liquidate, the Collateral.
(g) Except as provided in paragraph (h), UBS shall arrange for
an amount equal to any interest, dividends or other distributions paid on Loaned
Securities to be credited to the appropriate Client Account in accordance with
the compensation schedule set forth in Exhibit 4 hereto.
(h) Non-cash distributions on Loaned Securities in the nature
of stock splits or stock dividends shall be added to the Loan and become Loaned
Securities; PROVIDED that a Lending Client may, by giving UBS ten (10) Business
Days' notice prior to the date of such non-cash distribution, direct UBS to
request that the Borrower deliver such non-cash distributions to its Client
Account, in which case UBS shall arrange for such non-cash distribution to be
credited to that Client Account as soon as practicable.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Each Client represents, warrants and covenants as follows:
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(i) this Agreement constitutes the legal, valid and
binding obligation of Client, enforceable against it in accordance with its
terms except as enforcement may be limited by bankruptcy, insolvency or similar
laws, or by equitable principles relating to or limiting creditors' rights
generally;
(ii) the execution, delivery and performance by Client of
this Agreement, execution of each Borrowing Agreement by UBS on behalf of
Client, and UBS's entering into Loans under Borrowing Agreements on behalf of
Client, have been duly and validly authorized by Client, and Loans made in
accordance with the terms hereof will comply with all laws and regulations,
including those of securities regulatory and self-regulatory organizations,
applicable to Client;
(iii) Client owns, and will own at the time that any Loan
is outstanding, all Available Securities free and clear of any lien or
encumbrance;
(iv) Client has made its own determination as to the tax
treatment of any dividends, remuneration or other funds received hereunder;
(v) Client and any party serving as an investment
consultant to Client have approved the lending of Available Securities, have
determined that each of the Eligible Borrowers, the Eligible Collateral and the
Investment Guidelines (as the same may be amended pursuant to the terms hereof)
are appropriate for Loans by Client hereunder and have directed UBS to comply
with the same, and have determined that lending the Available Securities in
accordance with the terms hereof is an appropriate activity for Client,
consistent with its investment objectives and policies;
(vi) the Available Securities are not "plan assets"
within the meaning of ERISA, or if the Available Securities are such plan
assets, a Loan of the Available Securities to an Eligible Borrower would not
constitute a prohibited transaction for purposes of ERISA; and
(vii) no Loan of the Available Securities will violate any
statute, regulation, rule, order, judgment or agreement binding on Client or any
of its assets.
(b) UBS represents, warrants and covenants to each Client as
follows:
(i) this Agreement constitutes a legal, valid and
binding obligation of UBS, enforceable against it in accordance with its terms
except as enforcement may be limited by bankruptcy, insolvency or similar laws,
or by equitable principles relating to or limiting creditors' rights generally;
(ii) the execution, delivery and performance by UBS of
this Agreement and of each Borrowing Agreement, and UBS's entering into Loans
under Borrowing Agreements on behalf of Client, have been duly and validly
authorized by UBS, and Loans made in accordance with the terms hereof will
comply with all laws and regulations relating to the lending of securities and
applicable to UBS as lending agent; and
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(iii) UBS has the power to execute and deliver this
Agreement, to enter into the transactions contemplated hereby and to perform its
obligations hereunder, and it has taken all necessary action to authorize such
execution, delivery and performance.
(c) Each of the above representations and warranties shall be
deemed made and repeated for all purposes at and as of all times when any Loan
entered into under the Borrowing Agreement is outstanding.
(d) Each Client and UBS agree that, under the terms of this
Agreement, Client retains ultimate authority with respect to lending Client's
securities and has directed UBS to lend Available Securities in accordance with
the terms hereof. Each Client and UBS further agrees that unless applicable law
requires otherwise, UBS is not, and shall not be considered to be, solely by
virtue of its role hereunder, an investment adviser for Client.
5. STATEMENTS; RECORDS. UBS shall maintain current and accurate
records of the Loans as required by applicable regulations and shall provide
each Client with monthly statements detailing all deliveries and receipts of
Loaned Securities and Collateral, all transactions in the Client Account made at
the direction of UBS, all fees received and income earned from the Collateral
and Loaned Securities, all fees and other amounts paid to each Borrower or
others, and such other information as Client may reasonably request.
6. COMPENSATION OF UBS. In consideration of the services to be
provided by UBS hereunder, UBS shall be entitled to compensation as set forth in
Exhibit 4. UBS is hereby authorized to charge such compensation and
reimbursements against and collect the same from the revenues derived from
securities lending activities or to direct the Custodian to pay UBS such
compensation and reimbursements on a monthly basis, within 10 business days
after the end of each month. The fees paid to UBS hereunder are solely in
consideration of securities lending services rendered by it and are in addition
to any other fees or compensation to which it may be entitled for services
rendered for Client under other agreements.
7. MODIFICATION AND TERMINATION OF AGREEMENT.
(a) This Agreement is a continuing agreement and shall remain in full
force and effect until terminated in accordance with this Section. This
Agreement may be modified with respect to any Client at any time upon mutual
written agreement of UBS and that Client, expressly referring to this Agreement
and indicating an intention to effect such modification. This Agreement also may
be terminated at any time by UBS or any Client upon fourteen (14) days prior
written notice to the other party.
(b) Following any termination of this Agreement but only with respect
to the Client or Clients with respect to which such termination is effective,
UBS shall:
(i) immediately cease making new Loans;
(ii) terminate, as promptly as possible, any outstanding Loans,
but shall continue to administer any such outstanding Loans as necessary to
effect their termination, including,
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without limitation, (A) the return to Borrowers of Collateral on Loans as to
which Loaned Securities are returned to UBS or to the Client Account and as to
which the Borrower is not in default, and (B) the coordination of the
liquidation of Collateral, all in the manner and on the terms permitted under
the Borrowing Agreements and deemed necessary or appropriate by UBS; and
(iii) remit and deliver, or arrange for remittance and delivery,
to the Client Account all securities, earnings and other items due to each
Lending Client.
(c) Regardless of any agreement as to, or the receipt of any notice
of, termination and the cessation of lending, this Agreement shall not entirely
terminate with respect to any Lending Client until all Loans have been closed,
all Collateral liquidated or returned, all deliveries and remittances due the
Client have been made, all obligations and undertakings (including, without
limitation those set forth in Sections 8(d) and 13(b) hereof) of UBS to Client
have been fulfilled and satisfied, and all final reports required hereunder have
been made.
8. STANDARD OF CARE; INDEMNIFICATION.
(a) Subject to the requirements of ERISA with respect to Loans
involving "plan assets" within the meaning of ERISA, and except as otherwise
provided for in Sections 8(c) and 13(b) hereof, UBS shall not be liable for any
loss or damage suffered or incurred by any Client in connection with any Loan or
the administration and operation of UBS's securities lending program, whether or
not resulting from any act or omission to act hereunder or otherwise, unless and
except to the extent such loss or damage has been determined by a final judgment
or order of a court of competent jurisdiction to have arisen out of UBS's own
breach of this Agreement, the Borrower Agreement or the Supplemental Agreement,
or UBS's own negligence or willful misconduct. Notwithstanding anything in this
Agreement to the contrary, including any losses covered under paragraphs 8(d)
and 13(b) of this Agreement, UBS shall not be liable to any Client for any
special or indirect losses or damages which the Client may incur or suffer by or
as a consequence of UBS's performance of, or failure to perform, the services to
be provided hereunder, whether or not the likelihood of such losses or damages
was known by UBS, nor shall UBS be liable for any losses or damages resulting
from UBS's having complied with the Investment Guidelines or with any other
directions from, or requirements of, the Client.
(b) UBS shall indemnify Client in the event a Borrower defaults on any
Loan by failing to return equivalent securities when due, by either (i)
replacing in Client's account the unreturned Loaned Securities with other
securities of the same issuer, class and denomination (or the equivalent
securities in the event of an intervening corporate change) or (ii) at UBS's
option, paying the Client federal funds equal to the Market Value of the
unreturned Loaned Securities as of the date of the Borrower default. UBS shall
also be responsible for any interest or dividends accrued on the Loaned
Securities between the date of the Borrower default and the date on which the
actions in clauses (i) or (ii) have been completed, together with all brokerage
commissions, fees and stock transfer taxes incurred by UBS in replacing the
unreturned Loaned Securities. UBS may utilize Collateral proceeds and all income
generated by the Loan, to the extent thereof, including income and gains from
the investment of cash Collateral, toward the satisfaction of the
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foregoing obligations, and shall be subrogated and succeed to all of the
Client's rights against the Borrower to the extent of any such payment, loss or
expense in excess thereof.
(c) UBS shall not be liable to any Client for any investment losses
with respect to cash Collateral. Each Client authorizes UBS to charge the Client
Account for any amounts payable by such Client pursuant to this Section 8(b).
(d) Client shall indemnify UBS and hold it harmless from and against
any and all liability, loss, damages and claims, including attorneys' fees and
all other expenses reasonably incurred in its defense, to which UBS shall be
subjected by reason of UBS's actions, or failure to act in accordance with this
Agreement; provided however that Client's aforesaid obligation to indemnify and
hold UBS harmless shall not apply with respect to any liability, loss, damages
or claims (including attorneys' fees and other expenses) (i) arising from or
related to any action or inaction by UBS that is in violation of, or constitutes
a breach of, or is inconsistent with, UBS's obligations under, this Agreement, a
Borrowing Agreement or a Supplemental Agreement, or that is determined by a
court of competent jurisdiction to constitute negligence or willful misconduct
on the part of UBS, or (ii) if Available Securities are "plan assets" within the
meaning of ERISA, but only to the extent that UBS acts as a fiduciary with
respect to such plan assets, to a breach of fiduciary duty by UBS under ERISA.
9. GOVERNING LAW; JURISDICTION. This Agreement shall be construed in
accordance with the laws of the State of New York without giving effect to the
conflict of law principles thereof.
10. MISCELLANEOUS.
(a) If Exhibit 1 specifies that a party identified thereon as a Client
is acting on behalf of one or more of its portfolios, series, sub-trusts or
sub-accounts (each, a "portfolio") that are also identified on Exhibit 1, each
such portfolio shall be deemed to be a Client for all purposes under this
Agreement.
(b) Notwithstanding any other provision of this Agreement, the parties
agree that, if more than one Client (including any portfolio) is identified on
Exhibit 1:
(i) the relationships and agreements set forth in this
Agreement between each Client and UBS shall be several, separate and distinct
from those between any other Client and UBS, to the same effect as if that
Client had executed a separate agreement in the form hereof with UBS; and
(ii) the assets and liabilities of each Client are separate and
distinct from the assets and liabilities of each other Client, and no Client
shall be liable or shall be charged for any debt, obligation or liability of any
other Client under this Agreement.
(c) With respect to each Client that is a trust, notice is hereby
given that the obligations of this instrument are not binding upon any of the
trustees of Client individually but are binding solely upon the assets and
property of Client.
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(d) In the event any provision of this Agreement shall be held illegal
or invalid for any reason, such illegality or invalidity shall not affect the
remaining provisions of this Agreement, and this Agreement shall be construed
and enforced as if such illegal or invalid provision had never been contained
herein.
(e) This Agreement (including the exhibits and schedules attached
hereto) constitutes the entire agreement between the parties and supersedes any
prior agreements between the parties with respect to the subject matter hereof.
This Agreement shall not be assigned by either party without the prior written
consent of the other party.
11. NOTICES. All notices, reports and statements shall be mailed, sent
by express delivery service, or facsimile transmitted to the parties at the
following addresses and facsimile telephone numbers and shall be effective upon
receipt thereof:
TO UBS:
Address: UBS Securities LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Global Portfolio Lending
Fax: (000) 000-0000
TO CLIENT:
Address: c/o GE Capital Real Estate
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Fax: (000) 000-0000
Copies to: GE Capital Real Estate
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Legal Operation/Security Capital
Fax: 000-000-0000
12. SECURITIES INVESTORS PROTECTION ACT OF 1970 NOTICE.
EACH CLIENT IS HEREBY ADVISED AND ACKNOWLEDGES THAT THE PROVISIONS OF THE
SECURITIES INVESTOR PROTECTION ACT OF 1970 MAY NOT PROTECT CLIENT WITH RESPECT
TO THE LOAN OF SECURITIES HEREUNDER AND THAT, THEREFORE, THE COLLATERAL
DELIVERED TO CLIENT MAY CONSTITUTE
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THE ONLY SOURCE OF SATISFACTION OF BORROWER'S OBLIGATION IN THE EVENT THE
BORROWER FAILS TO RETURN THE SECURITIES.
13. DEFINITIONS. For the purposes hereof:
(a) "Affiliate" shall mean any entity, which controls, is controlled
by, or is under common control with another entity.
(b) "Available Securities" shall mean with respect to any Client and
on any date, those securities held or maintained in its Client Account, other
than those securities that Client has designated by written notice to UBS as not
being available for Loans.
(c) "Borrower" shall mean, with respect to any Loan, the party that is
a borrower under a Borrowing Agreement.
(d) "Borrowing Agreement" shall have the meaning set forth in Section
1.
(e) "Business Day" shall mean any day other than a day on which the
New York Stock Exchange, Inc. is closed for trading; PROVIDED, however, that for
purposes of the notice required to terminate any Loan, "Business Day" shall have
the meaning established under the related Borrowing Agreement.
(f) "Client Account" shall mean, with respect to any Client, the
account specified in Exhibit 3.
(g) "Collateral" shall mean all securities and other items of property
pledged as collateral for a Loan.
(h) "Collateral Guidelines" shall mean, with respect to any Client,
the guidelines for Eligible Collateral and for the investment of cash Collateral
set forth in Exhibit 5.
(i) "Custodian" shall mean, with respect to any Client, the entity
identified as such in Exhibit 3.
(j) "Eligible Borrower" shall mean, with respect to any Client and on
any date, any entity to which Available Securities may be loaned on behalf of
that Client, as listed in Exhibit 2, as the same may be amended from time to
time by UBS and approved in writing by Client.
(k) "Eligible Collateral" shall mean, with respect to any Lending
Client and subject to such limitations as are specified in the Collateral
Guidelines, Collateral consisting of (i) cash, (ii) Government Securities; (iii)
Letters of Credit; and (iv) such other securities, instruments or investment
property specified in the Collateral Guidelines.
(l) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may now or hereafter be amended.
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(m) "Foreign Securities" shall mean securities that are denominated in
a currency other than United States dollars and that are principally cleared and
settled outside of the United States.
(n) "Government Securities" shall mean government securities as
defined in Section 3(a)(42)(A)-(C) of the Securities Exchange Act of 1934, as
amended.
(o) "Lending Client" shall have the meaning set forth in Section 1.
(p) "Letter of Credit" shall mean an irrevocable, unconditional,
stand-by letter of credit, in form and substance satisfactory to the Lending
Client, issued by a bank (not affiliated with the Borrower under the related
Loan) listed in the Collateral Guidelines.
(q) "Loan" shall mean a loan of Available Securities pursuant to this
Agreement.
(r) "Loaned Securities" shall mean, with respect to any Loan, the
securities loaned by UBS on behalf of a Lending Client.
(s) "Market Value" shall have the meaning assigned in the applicable
Borrowing Agreement.
(t) "Required Collateral Level" shall have the meaning set forth in
Section 3(a).
(u) "Termination Notice Time" shall mean: (i) with respect to a
direction by Client to UBS to terminate a Loan of Foreign or Government
Securities, 9:45 a.m., Eastern time, on a Business Day; and (ii) with respect to
a direction by Client to UBS to terminate any other Loan, 11:30 a.m., Eastern
time, on a Business Day.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereto duly authorized effective as of
the day and year first above written.
UBS Securities LLC
BY: /s/ XXXXXX X. XXXXXXXX
----------------------------------
NAME: Xxxxxx X. Xxxxxxxx
TITLE: Executive Director
Client
BY: /s/ XXXXXX X. XXXXX
----------------------------------
NAME: Xxxxxx X. Xxxxx
TITLE: Vice President
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EXHIBIT 1
(LISTING OF CLIENTS)
Security Capital Shopping Mall Business Trust
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EXHIBIT 2
(ELIGIBLE BORROWERS)
CLIENT APPROVED CLIENT APPROVED
BORROWERS: CREDIT LIMITS (MILLIONS):
Citigroup Global Markets, Inc $ 250
JPMorgan Chase Bank $ 250
Merrill, Lynch, Xxxxxx, Xxxxxx
& Xxxxx Incorporated $ 250
Wachovia Bank, National Association $ 250
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EXHIBIT 3
(CLIENT ACCOUNT AND CUSTODIAN INFORMATION)
UBS Financial Services Inc.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Acct. # UT28179
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EXHIBIT 4
(COMPENSATION SCHEDULE)
A twenty (20) basis point (bp) loan fee on all loans made pursuant to
this agreement will be distributed on the following schedule:
Security Capital Shopping Mall Business Trust -14 bps
UBS Securities LLC - 6 bps
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EXHIBIT 5
(COLLATERAL GUIDELINES)
1. FOR EACH LENDING CLIENT, COLLATERAL SHALL BE HELD (CHECK APPROPRIATE
BOX):
[X] by UBS Financial Services Inc. for the account of Lending
Client;
[_] in the Client Account;
2. FOR EACH CLIENT, ELIGIBLE COLLATERAL SHALL INCLUDE:
A. CASH IN THE FOLLOWING CURRENCIES:
YES NO
(i) U.S. Dollars [X] [_]
(ii) Other:___________ [_] [X]
B. U.S. GOVERNMENT SECURITIES [_] [X]
Securities issued or guaranteed by the United
States government or any agency or instrumentality
thereof ("U.S. government securities")
3. FOR EACH CLIENT, CASH COLLATERAL MAY BE INVESTED IN AS FOLLOWS:
PERMISSIBLE INVESTMENTS
Asset Backeds
Bankers Acceptances (Domestic and Yankee)
Certificates of Deposit (Domestic and Yankee)
Commercial Paper
Euro Time Deposits (Banks that have been approved by Client)
Funding Agreements
Master Notes
Money Market Funds
Money Market Preferreds
Mortgages
Traditional/Non-Traditional Repurchase/Reverse Repurchase Agreements
Trust Certificates
UBS Private Money Market Fund LLC
U.S. Corporate Securities
U.S. Treasuries and Agencies
Yankee Debt
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