Exhibit No. EX-99.h.3
SECURITIES LENDING AGREEMENT AND GUARANTY
AGREEMENT, dated as of ______________________, between each Investment
Company and Series listed on Exhibit A hereto, separately and not jointly, (each
of which is hereinafter referred to as "Lender"), and The Bank of New York
("Bank").
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, unless the context otherwise requires, the
following words shall have the meanings set forth below:
1. "Act of Insolvency" shall mean (i) the filing by a Borrower of a
petition in bankruptcy or a petition seeking reorganization, liquidation or
similar relief, or the filing of any such petition against a Borrower which is
not dismissed or stayed within 60 calendar days, (ii) the adjudication of a
Borrower as bankrupt or insolvent, (iii) the seeking or consenting to the
appointment of a trustee, receiver or liquidator by a Borrower, or (iv) the
making of a general assignment for the benefit of creditors by a Borrower or a
Borrower's admission in writing of its inability to pay its debts as they become
due.
2. "Account" shall mean the custodial account established and maintained by
Bank on behalf of Lender for the safekeeping of Securities and monies received
by Bank from time to time.
3. "Approved Investment" shall mean any type of Security, instrument,
participation or interest in property in which Cash Collateral may be invested
or reinvested, as set forth on Schedule I hereto (which may be amended from time
to time by execution of a revised Schedule I).
4. "Authorized Person" shall mean any officer of Lender and any other
person, whether or not any such person is an officer or employee of Lender, duly
authorized by corporate resolutions of the Board of Directors of Lender to give
Oral and/or Written Instructions on behalf of Lender, such persons to be
designated in a written Certificate of Authorized Persons which contains a
specimen signature of such person.
5. "BNY Affiliate" shall mean any affiliate of Bank, as such term is
defined in Regulation W issued by the Board of Governors of the Federal Reserve
System.
6. "Book-Entry System" shall mean the Treasury/Reserve Automated Debt Entry
System maintained at The Federal Reserve Bank of New York.
7. "Borrower" shall mean any entity named on a list supplied to Lender by
Bank (as such list may be amended from time to time), other than any entity
deleted from such list pursuant to a Certificate.
8. "Business Day" shall mean any day on which Bank is open for business and
on which the Book-Entry System and/or the applicable Depositories are open for
business.
9. "Cash Collateral" shall mean either fed funds of New York Clearing House
funds, as applicable for a particular Loan.
10. "Certificate" shall mean any notice, instruction, schedule or other
instrument in writing, authorized or required by this Agreement to be given to
Bank, which is actually received by Bank and signed on behalf of Lender by an
Authorized Person or a person reasonably believed by Bank to be an Authorized
Person.
11. "Collateral" shall mean Government Securities, Letters of Credit and/or
Cash Collateral.
12. "Collateral Account" shall mean an account established and maintained
by Bank for the purpose of holding Collateral, Approved Investments, Proceeds
and any Securities Loan Fee paid by Borrowers in connection with Loans
hereunder.
13. "Collateral Requirement" shall mean with respect to Loans an amount
equal to 102% of the then current Market Value of Loaned Securities which are
the subject of Loans as of the close of trading on the preceding Business Day.
14. "Depository" shall mean the Depository Trust Company and any other
securities depository or clearing agency (and their respective successors and
nominees) registered with the Securities and Exchange Commission or otherwise
authorized to act as a securities depository or clearing agency.
15. "Distributions" shall mean interest, dividends and other payments and
distributions payable by Borrowers in respect of Loaned Securities.
16. "Government Security" shall mean Book-entry Securities as defined in 31
C.F.R. Part 357.2 and any other securities issued or fully guaranteed by the
United States government or any agency, instrumentality or establishment of the
United States government.
17. "Letter of Credit" shall mean a clean, unconditional and irrevocable
letter of credit in favor of Bank as agent for Lender issued by a bank named on
a list supplied to Lender by Bank (as such list may be amended from time to
time), other than a bank deleted from such list pursuant to a Certificate.
18. "Loan" shall mean a loan of Securities hereunder.
19. "Loaned Security" shall mean any Security which is subject to a Loan.
20. "Market Value" shall mean (a) with respect to Government Securities,
the price of such Securities as quoted by a recognized pricing information
service at the time the determination of Market Value is made, plus accrued but
unpaid interest, if any, on the particular Security, (b) with respect to other
Securities, the price of such Securities as quoted by a recognized pricing
information service at the time such determination is made, plus accrued but
unpaid interest, if any, to the extent not included in the price as quoted, (c)
with respect to Cash Collateral, its amount, and (d) with respect to Letters of
Credit, the amount of such Letters of Credit.
21. "Oral Instructions" shall mean verbal instructions actually received by
Bank from an Authorized Person or from a person reasonably believed by Bank to
be an Authorized Person.
22. "Proceeds" shall mean any interest, dividends and other payments and
distributions received by Bank in respect of Collateral and Approved
Investments.
23. "Rebate" shall mean the amount payable by Bank to a Borrower in
connection with Loans at any time collateralized by Cash Collateral.
24. "Receipt" shall mean an advice or confirmation setting forth the terms
of a particular Loan.
25. "Securities Borrowing Agreement" shall mean the agreement pursuant to
which Bank lends securities to a Borrower on behalf of its customers (including
Lender) from time to time.
26. "Securities Loan Fee" shall mean the amount payable by a Borrower to
Bank pursuant to the Securities Borrowing Agreement in connection with Loans
collateralized by Collateral other than Cash Collateral.
27. "Security" shall include Government Securities, common stock and other
equity securities, bonds, debentures, corporate debt securities, notes,
mortgages or other obligations, and any certificates, warrants or other
instruments representing rights to receive, purchase, or subscribe for the same,
or evidencing or representing any other rights or interests therein.
28. "Written Instructions" shall mean written communications actually
received by Bank from an Authorized Person or from a person reasonably believed
by Bank to be an Authorized Person by letter, memorandum, telegram, cable,
telex, facsimile, computer, video (CRT) terminal or other on-line system, or any
other method whereby Bank is able to verify with a reasonable degree of
certainty the identity of the sender of such communications or the sender is
required to provide a password or other identification code.
ARTICLE II
APPOINTMENT OF BANK; SCOPE OF AGENCY AUTHORITY
1. Appointment. Lender hereby appoints Bank as its agent to lend Securities
in the Account to Borrowers from time to time (except Securities which Lender
has advised Bank in a Certificate are no longer subject to the representations
set forth in Article III, sub-paragraph (e) hereof), and Bank hereby accepts
appointment as such agent and agrees to so act. Bank shall not make any Loans
hereunder if the Market Value of the Loaned Securities subject to outstanding
Loans hereunder exceeds 33% of the total assets of Lender, as specified in a
Certificate delivered to Bank, or such other lower percentage as may be
specified in a Certificate delivered to Bank, nor shall Bank make any additional
Loans hereunder if as a result of such Loan the Market Value of all Loaned
Securities hereunder would exceed 33% of the total assets of Lender, as
specified in a Certificate delivered to Bank, or such other lower percentage as
may be specified in a Certificate delivered to Bank.
2. Securities Borrowing Agreement. Lender hereby acknowledges receipt of
Bank's standard form(s) of Securities Borrowing Agreement and authorizes Bank to
lend Securities in the Account to Borrowers pursuant to agreements substantially
in the form thereof. Bank is hereby authorized to negotiate with each Borrower
the amount of Rebates payable in connection with particular Loans. Bank shall
deliver to Lender a Receipt relating to each Loan.
3. Loan Opportunities. Bank shall treat Lender equitably with other lenders
of like circumstances in making lending opportunities available to it hereunder,
taking into account the demand for specific securities, availability of
securities, types of collateral, eligibility of borrowers, limitations on
investments of cash collateral and such other factors as Bank deems appropriate.
Bank shall nevertheless have the right to decline to make any Loans pursuant to
any Securities Borrowing Agreement and to discontinue lending under any
Securities Borrowing Agreement in its sole discretion and without notice to
Lender.
4. Use of Book-Entry System and Depositories. Lender hereby authorizes Bank
on a continuous and on-going basis, to deposit in the Book-Entry System and the
applicable Depositories all Securities eligible for deposit therein and to
utilize the Book-Entry System and Depositories to the extent possible in
connection with its receipt and delivery of Securities, Collateral, Approved
Investments and monies under this Agreement. Where Securities, Collateral and
Approved Investments eligible for deposit in the Book-Entry System or a
Depository are transferred to Lender hereunder, Bank shall identify as belonging
to Lender a quantity of Securities in a fungible bulk of securities shown on
Bank's account on the books of the Book-Entry System or the applicable
Depository. Securities, Collateral and Approved Investments deposited in the
Book-Entry System or a Depository will be represented in accounts which include
only assets held by Bank for customers, including but not limited to accounts in
which Bank acts in a fiduciary or agency capacity.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Lender hereby represents and warrants to Bank, which representations and
warranties shall be deemed to be continuing and to be reaffirmed on any day that
a Loan 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 Lender, or any provision of Lender's charter or by-laws, or
any agreement binding on Lender or affecting its property, and is enforceable
against Lender in accordance with its terms, except as may be limited by
bankruptcy, insolvency or similar laws, or by equitable principles relating to
or limiting creditors' rights generally;
(b) The person executing this Agreement and all Authorized Persons acting
on behalf of Lender has and have been duly and properly authorized to do so;
(c) If it is lending Securities as principal for its own account it will
not transfer, assign or encumber its interest in, or rights with respect to, any
Loans;
(d) If it is acting as agent for one or more third parties, Lender is
either authorized by virtue of standing instructions or is a fiduciary with the
authority to enter into, execute and bind such third parties to this Agreement
and the Loans effected for such third parties, and Lender is authorized to make,
and makes each of the representations and warranties set forth in sub-paragraphs
(a) through (c) above for each such third party; and
(e) All Securities in the Account are free and clear of all liens, claims,
security interests and encumbrances and no such Security has been sold. Lender
shall promptly deliver to Bank a Certificate identifying any and all Securities
which are no longer subject to the representations contained in this
sub-paragraph (e).
ARTICLE IV
SECURITIES LENDING TRANSACTIONS
1. General Bank Responsibilities. Bank shall enter Loans pursuant to the
Securities Borrowing Agreement and take all actions deemed necessary or
appropriate in order to perform on Lender's behalf thereunder, including
receiving Collateral having a Market Value of not less than the Collateral
Requirement, collecting Distributions and applicable Securities Loan Fees, and
demanding additional Collateral from the appropriate Borrowers when the Market
Value of Collateral received by Bank from such Borrowers is less than the then
current Market Value of all of the Loaned Securities. Whenever Bank demands
additional Collateral pursuant to the foregoing, such additional Collateral
together with the Collateral then held by Bank in connection with Loans shall
have a Market Value of not less than the Collateral Requirement.
2. Approved Investments. (a) Bank is hereby authorized and directed,
without obtaining any further approval from Lender, to invest and reinvest all
or substantially all of the Cash Collateral received in any Approved Investment.
Bank shall credit all Collateral, Approved Investments and Proceeds received
with respect to Collateral and Approved Investments to the Collateral Account
and xxxx its books and records to identify Lender's interest therein as
appropriate, it being understood that all monies credited to the Collateral
Account may for purposes of investment be commingled with cash collateral held
for other lenders of securities for whom Bank acts as their respective agent.
Bank reserves the right, in its sole discretion, to liquidate any Approved
Investment and credit the net proceeds to the Collateral Account.
(b) Lender may deliver to Bank a Certificate from time to time instructing
Bank not to make Approved Investments with particular financial institutions or
issuers.
(c) All Approved Investments shall be for the account and risk of Lender.
To the extent any loss arising out of Approved Investments results in a
deficiency in the amount of Collateral available for return to a Borrower,
Lender agrees to pay Bank on demand cash in an amount equal to such deficiency.
(d) Except as otherwise provided herein, all Collateral, Approved
Investments and Proceeds credited to the Collateral Account shall be controlled
by, and subject only to the instructions of, Bank, and Bank shall not be
required to comply with any instructions of Lender with respect to the same.
3. Termination of Loans. (a) Bank shall terminate any Loan:
(i) upon receipt by Bank of a notice of termination from a Borrower;
(ii) upon receipt by Bank of Written Instructions to do so;
(iii) upon receipt by Bank of a Certificate instructing it to delete
the Borrower to whom such Loan was made from the list referred to
in Article I, paragraph 6 hereof;
(iv)upon receipt by Bank of a Certificate advising that the Loaned
Security is no longer subject to the representations contained in
Article III, sub-paragraph (e) hereof;
(v) upon receipt by Bank of notice or a Certificate advising that an
Event of Default (as defined in the Securities Borrowing
Agreement) has occurred and is continuing beyond any applicable
grace period;
(vi) whenever Bank, in its sole discretion, elects to terminate such
Loan; or
(vii) upon termination of this Agreement.
(b) Upon termination of any Loan (which shall be effected according to the
standard settlement time for trades in the particular Loaned Security) and
receipt from the Borrower of the Loaned Securities and any Distributions then
due, Bank shall return to the Borrower such amount of Collateral as is required
by the Securities Borrowing Agreement and pay the Borrower any Rebates then
payable.
(c) In order for Bank to timely settle the sale of Loaned Securities, it
shall be Lender's responsibility to ensure prompt notification to Bank regarding
any such sale.
4. Securities Loan Fee. Bank shall receive any applicable Securities Loan
Fee paid by Borrowers and credit all such amounts received to the Collateral
Account.
5. Guarantee and Subrogation. (a) If as a result of an Act of Insolvency a
Borrower fails to return any Loaned Securities, Bank shall take all actions
which it deems necessary or appropriate to liquidate Approved Investments and
Collateral in connection with Loans to such Borrower and, unless advised by
Lender to the contrary, shall make a reasonable effort for two Business Days
(the "Replacement Period") to apply the proceeds thereof to the purchase of
Securities identical to the Loaned Securities (or the equivalent thereof in the
event of a reorganization or recapitalization of the issuer) not returned. If
during the Replacement Period the Collateral liquidation proceeds are
insufficient to replace any of the Loaned Securities not returned, Bank shall,
subject to satisfaction of Lender's obligations under paragraph 2(c) of this
Article, pay such additional amounts as are necessary to make such replacement.
Purchases of replacement Securities shall be made only in such markets, in such
manner and upon such terms as Bank shall consider appropriate in its sole
discretion. Replacement Securities shall be credited to the Account upon receipt
by Bank. If Bank is unsuccessful in purchasing any replacement Securities during
the Replacement Period, the proceeds of the liquidation of Approved Investments
and Collateral pursuant hereto shall be credited to the Account, and Bank shall,
subject to satisfaction of Lender's obligations under paragraph 2(c) of this
Article, credit to the Account cash in an amount (if any) equal to (X) the
Market Value of the Loaned Securities not returned, minus (Y) the Collateral
liquidation proceeds, such calculation to be made on the date of such credit.
(b) Lender agrees, without the execution of any documents or the giving of
any notice, that Bank is and will remain subrogated to all of Lender's rights
under the Securities Borrowing Agreement or otherwise (to the extent of any
credit pursuant to paragraph 5(a) above), including but not limited to, Lender's
rights with respect to Loaned Securities and Distributions, and Collateral,
Approved Investments and Proceeds. Lender agrees to execute and deliver to Bank
such documents as Bank may require and to otherwise fully cooperate with Bank to
give effect to its rights of subrogation hereunder.
(c) Bank shall have no obligation to take any actions pursuant to paragraph
5(a) above if it believes that such action will violate any applicable statute,
regulation, rule, order or judgment. Furthermore, except as provided in
paragraph 5(a), Bank shall have no other liability to Lender relating to any
Borrower's failure to return Loaned Securities and no duty or obligation to take
action to effect payment by a Borrower of any amounts owed by such Borrower
pursuant to the Securities Borrowing Agreement.
(d) Either party may terminate the provisions of paragraph 5(a) above with
respect to any Borrower at any time by delivery of a notice to the other party
specifying a termination date not earlier then the date of receipt of such
notice by the other party. No such termination shall be effective with respect
to then existing rights of either party under this paragraph 5 or outstanding
Securities Loans hereunder. Upon such termination, Borrower shall cease to be
Borrower.
(e) Bank may offset any amounts payable by Lender under this Agreement
against amounts payable by Bank under paragraph 5(a) of this Article.
6. Taxes. Lender shall be solely responsible for all tax matters arising in
connection with Loans and Approved Investments, including without limitation,
determinations of whether or not any Loan or Approved Investment results in
liability to it for income tax, capital gains tax, value added tax, withholding
tax, stamp duties, transfer taxes or any other taxes, assessments, duties and
other governmental charges, including any interest or penalty with respect
thereto ("Taxes"). Lender shall indemnify Bank for the amount of any Taxes that
Bank or any withholding agent is required under applicable laws (whether by
assessment or otherwise) to pay on behalf of, or in respect of income earned by
or payments or distributions made to or for the account of Lender (including any
payment of Tax required by reason of an earlier failure to withhold). In the
event that Bank or any withholding agent is required under applicable law to pay
any Tax on behalf of Lender, Bank is hereby authorized to withdraw cash from any
cash account in the amount required to pay such Tax and to use such cash for the
timely payment of such Tax in the manner required by applicable law. If the
aggregate amount of cash in such cash account is not sufficient to pay such Tax,
Bank shall promptly notify Lender of the additional amount of cash (in the
appropriate currency) required, and Lender shall directly deposit such
additional amount in the appropriate cash account promptly after receipt of such
notice, for use by Bank as specified herein. In no event shall Bank be
responsible for collecting any Taxes from Borrowers.
ARTICLE V
CONCERNING BANK
1. Standard of Care; Reimbursement. (a) Bank shall not be liable for any
costs, expenses, damages, liabilities or claims (including attorneys' and
accountants' fees) incurred by Lender, except those costs, expenses, damages,
liabilities or claims arising out of the negligence, bad faith or wilful
misconduct of Bank and except for any costs or expenses incurred by Bank in
performing its obligations pursuant to paragraph 5(a) of Article IV hereof. Bank
shall have no obligation hereunder for costs, expenses, damages, liabilities or
claims (including attorneys' and accountants' fees), which are sustained or
incurred by reason of any action or inaction by the Book-Entry System or any
Depository or their respective successors or nominees. In no event shall Bank be
liable for special, indirect or consequential damages, or lost profits or loss
of business, arising under or in connection with this Agreement, even if
previously informed of the possibility of such damages and regardless of the
form of action.
(b) Except for any costs or expenses incurred by Bank in performing its
obligations pursuant to paragraph 5(a) of Article IV hereof, Lender agrees to
reimburse Bank and to hold it harmless from and against any and all costs,
expenses, damages, liabilities or claims, including reasonable fees and expenses
of counsel incurred by Bank in a successful defense of claims by Lender, which
Bank may sustain or incur or which may be asserted against Bank by reason of or
as a result of any action taken or omitted by Bank in connection with operating
under this Agreement, other than those costs, expenses, damages, liabilities or
claims arising out of the negligence, bad faith or wilful misconduct of Bank.
The foregoing shall be a continuing obligation of Lender, its successors and
assigns, notwithstanding the termination of any Loans hereunder or of this
Agreement. Bank may charge any amounts to which it is entitled hereunder against
the Account. Actions taken or omitted in reliance upon Oral or Written
Instructions, any Certificate, or upon any information, order, indenture, stock
certificate, power of attorney, assignment, affidavit or other instrument
reasonably believed by Bank to be genuine or bearing the signature of a person
or persons reasonably believed to be authorized to sign, countersign or execute
the same, shall be conclusively presumed to have been taken or omitted in good
faith.
2. No Obligation to Inquire. Without limiting the generality of the
foregoing, Bank shall be under no obligation to inquire into, and shall not be
liable for, the validity of the issue of any Securities, Collateral or Approved
Investments held in the Account or Collateral Account, or the legality or
propriety of any Loans hereunder.
3. Reliance on Borrowers' Statements, Representations and Warranties.
Provided that it acts with reasonable care and in accordance with the terms of
this Agreement, Bank shall be entitled to rely upon the most recently available
audited and unaudited statements of financial condition and representations and
warranties made by Borrowers, and Bank shall not be liable for any loss or
damage suffered as a result of any such reliance.
4. Advances, Overdrafts and Indebtedness; Security Interest. Bank may, in
its sole discretion, advance funds to Lender in order to pay to Borrowers any
Rebates or to return to Borrowers Cash Collateral to which they are entitled.
Bank may also credit the Account or Collateral Account with Securities Loan Fees
payable by Borrowers prior to its receipt thereof. Any such credit shall be
conditional upon receipt by Bank of final payment and may be reversed to the
extent final payment is not received.
5. Advice of Counsel. Bank may, with respect to questions of law, apply for
and obtain the advice and opinion of counsel and shall be fully protected with
respect to anything done or omitted by it in good faith in conformity with such
advice or opinion.
6. No Collection Obligations. Bank shall be under no obligation or duty to
take action to effect collection of, or be liable for, any amounts payable in
respect of Securities or Approved Investments if such Securities or Approved
Investments are in default, or if payment is refused after due demand and
presentation.
7. Pricing Services. Bank is authorized to utilize any recognized pricing
information service in order to perform its valuation responsibilities with
respect to Loaned Securities, Collateral and Approved Investments, and Lender
agrees to hold Bank harmless from and against any loss or damage suffered or
incurred as a result of errors or omissions of any such pricing information
service.
8. Agent's Fee. For its performance as Lender's agent in making and
administering Loans, Lender shall pay to Bank a fee, accrued daily, equal to the
percentage set forth in Schedule II hereto, of the sum of all interest,
dividends and other distributions earned from Approved Investments and
Securities Loan Fees paid or payable by the relevant Borrowers, net of Rebates
paid by Bank to relevant Borrowers and brokerage commissions incurred in making
Approved Investments. Bank is authorized, on a monthly basis, to charge its fees
and any other amounts owed by Lender hereunder against the Account and/or
Collateral Account.
9. Reliance On Certificates and Instructions. Bank shall be entitled to
rely upon any Certificate, Written or Oral Instruction actually received by Bank
and reasonably believed by Bank to be duly authorized and delivered. Lender
agrees to forward to Bank Written Instructions confirming Oral Instructions in
such manner so that such Written Instructions are received by Bank by the close
of business of the same day that such Oral Instructions are given to Bank.
Lender agrees that the fact that such confirming Written Instructions are not
received or that contrary instructions are received by Bank shall in no way
affect the validity or enforceability of the transactions authorized by Lender.
In this regard, the records of Bank shall be presumed to reflect accurately any
Oral Instructions given by an Authorized Person or a person believed by Bank to
be an Authorized Person.
10. Disclosure of Account Information. It is understood and agreed that
Bank is authorized to supply any information regarding the Account or Collateral
Account which is required by any statute, regulation, rule or order now or
hereafter in effect; provided, however, that nothing in this Agreement shall be
deemed to authorize Bank to waive any attorney-client work product or other
privilege of Lender or its investment adviser
11. Statements. Bank will at least monthly furnish Lender with statements
relating to Loans hereunder.
12. Force Majeure. Bank shall not be responsible or liable for any failure
or delay in the performance of its obligations under this Agreement arising out
of or caused, directly or indirectly, by circumstances beyond its control,
including without limitation: acts of God; earthquakes; fires; floods; wars;
civil or military disturbances; sabotage; epidemics; riots; interruptions, loss
or malfunctions of utilities, transportation, computer (hardware or software) or
communications service; accidents; labor disputes; acts of civil or military
authority; governmental actions; or inability to obtain labor, material,
equipment or transportation. Bank hereby represents that it has established and
maintains commercially reasonable business recovery procedures.
13. No Implied Duties. Bank shall have no duties or responsibilities
whatsoever except such duties and responsibilities as are specifically set forth
in this Agreement, and no covenant or obligation shall be implied against Bank
in connection with this Agreement.
ARTICLE VI
TERMINATION
This Agreement may be terminated at any time by either party upon delivery
to the other party of a written notice specifying the date of such termination,
which shall be not less than 45 days after the date of receipt of such notice.
Notwithstanding any such notice, this Agreement shall continue in full force and
effect with respect to all Loans outstanding on the date of termination.
ARTICLE VII
MISCELLANEOUS
1. Exclusivity. Lender agrees that it shall not enter into any other
agreement with any third party whereby such third party is permitted to make
loans on behalf of Lender of Securities held by Bank from time to time.
2. Certificates. Lender agrees to furnish to Bank a new Certificate in the
event that any present Authorized Person ceases to be an Authorized Person or in
the event that any other Authorized Persons are appointed and authorized. Until
such new Certificate is received, Bank shall be fully protected in acting upon
Oral Instructions or signatures of the present Authorized Persons.
3. Notices. (a) Any notice or other instrument in writing, authorized or
required by this Agreement to be given to Bank, shall be sufficiently given if
addressed to Bank and received by it at its offices at 00 Xxx Xxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Securities Lending Division, or at such other place
as Bank may from time to time designate in writing.
(b) Any notice or other instrument in writing, authorized or required by
this Agreement to be given to Lender shall be sufficiently given if addressed to
Lender and received by it at its office at Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxxxx, XX 00000, or at such other place as Lender may from time to time
designate in writing.
4. Cumulative Rights and No Waiver. Each and every right granted to Bank
hereunder or under any other document delivered hereunder or in connection
herewith, or allowed it by law or equity, shall be cumulative and may be
exercised from time to time. No failure on the part of Bank to exercise, and no
delay in exercising, any right will operate as a waiver thereof, nor will any
single or partial exercise by Bank of any right preclude any other or future
exercise thereof or the exercise of any other right.
5. Severability. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or obligations
shall not in any way be affected or impaired thereby, and if any provision is
inapplicable to any person or circumstances, it shall nevertheless remain
applicable to all other persons and circumstances.
6. Entire Agreement; Amendments. This Agreement represents the entire
understanding of the parties hereto with regard to the subject matter contained
herein and may not be amended or modified in any manner except by a written
agreement executed by both parties.
7. Successors and Assigns. This Agreement shall extend to and shall be
binding upon the parties hereto, and their respective successors and assigns;
provided, however, that this Agreement shall not be assignable by either party
without the written consent of the other.
8. Governing Law; Consent to Jurisdiction; Waiver of Immunity; Jury Trial
Waiver. This Agreement shall be construed in accordance with the laws of the
State of New York, without regard to conflict of laws principles. Lender hereby
consents to the jurisdiction of a state or federal court situated in the Borough
of Manhattan, New York City, New York in connection with any dispute arising
hereunder. To the extent that in any jurisdiction Lender may now or hereafter be
entitled to claim, for itself or its assets, immunity from suit, execution,
attachment (before or after judgment) or other legal process, Lender irrevocably
agrees not to claim, and it hereby waives, such immunity. Lender and Bank each
hereby irrevocably waives any and all rights to trial by jury in any legal
proceeding arising out of or relating to this Agreement.
9. No Third Party Beneficiaries. In performing hereunder, Bank is acting
solely on behalf of Lender and no contractual or service relationship shall be
deemed to be established hereby between Bank and any other person.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but such
counterparts shall, together, constitute only one instrument.
11. Notice to Lender. Lender hereby acknowledges that Bank is subject to
federal laws, including the customer identification program (CIP) requirements
under the USA PATRIOT Act and its implementing regulations, pursuant to which
Bank must obtain, verify and record information that allows Bank to identify
Lender. Accordingly, prior to opening an Account hereunder Bank will ask Lender
to provide certain information including, but not limited to, Lender's name,
physical address, tax identification number and other information that will help
Bank to identify and verify Lender's identity such as organizational documents,
certificate of good standing, license to do business, or other pertinent
identifying information. Lender agrees that Bank cannot open an Account
hereunder unless and until the Bank verifies the Lender's identity in accordance
with its CIP.
12. SIPA NOTICE. THE PROVISIONS OF THE SECURITIES INVESTOR PROTECTION ACT
OF 1970 MAY NOT PROTECT LENDER WITH RESPECT TO LOANS HEREUNDER AND, THEREFORE,
THE COLLATERAL DELIVERED TO BANK AS AGENT FOR LENDER MAY CONSTITUTE THE ONLY
SOURCE OF SATISFACTION OF A BORROWER'S OBLIGATION IN THE EVENT SUCH BORROWER
FAILS TO RETURN THE LOANED SECURITIES.
13. Construction. This Agreement shall be deemed to be a separate agreement
between Bank and each investment company or Series listed on Exhibit A hereto,
and each such investment company or Series shall be a separate Lender for
purposes of this Agreement. In no event shall an investment company or Series be
responsible or liable for any obligations of any other investment company or
Series.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officers, thereunto duly authorized, as
of the day and year first above written.
REVENUESHARES ETF TRUST
On behalf of Series listed on
Exhibit A hereto
By: ___________________________
Name: Xxxxxxx X. Xxxxx
Title: President
THE BANK OF NEW YORK
By:____________________________
Name:
Title:
SCHEDULE I
APPROVED INVESTMENTS
Bank is hereby authorized to invest and reinvest Cash Collateral in the
following investments. Ratings descriptions specified in any category of
investments listed below shall mean the rating that is assigned to the
investment at the time that it is acquired.
Investment
Securities issued or fully guaranteed by the United States government and any
agency, instrumentality or establishment of the United States government
("Government Securities").
High-grade commercial paper, notes, bonds and other debt obligations including
promissory notes, master notes, funding agreements and guaranteed investment
contracts whether or not registered under the Securities Act of 1933, as
amended. Such obligations may have fixed, floating, or variable rate interest
payment provisions. Obligations maturing within one year shall be issued by
issuers rated at least A-1 (by Standard & Poor's) or P-1 (by Moody's).
Obligations maturing beyond one year shall be issued by issuers rated at least A
(by Standard & Poor's) or A2 (by Moody's).
Non-mortgage Asset-Backed Securities which carry the highest credit rating by
Standard & Poor's or Moody's.
Certificates of deposit, time deposits and other bank obligations of U.S. banks,
their branches and subsidiaries, and the branches and subsidiaries of foreign
banks. Obligations maturing within one year shall be issued by banks (or their
subsidiaries) rated at least A-1 (by Standard & Poor's) or P-1 (by Moody's).
Obligations maturing after one year shall be issued by banks (or their
subsidiaries) rated A (by Standard & Poor's) or A-2 (by Moody's).
Repurchase agreements, collateralized by U.S. Government Securities and entered
into with counterparties approved by The Bank of New York (including The Bank of
New York and its affiliates)
Securities, units, shares and other participations in money market funds,
unregistered short-term investment funds, pools or trusts (including those
managed by The Bank of New York) (collectively, "funds"), provided such funds
meet the same investment restrictions as in this Schedule I.
Maturities
Government Securities have no maturity limit.
Fixed rate instruments shall have a maturity no greater than 13 months.
Floating rate instruments shall have maturities as follows:
"A" & "AA" rated instruments no greater than three years with resets no less
frequent than 3 months, "AAA" rated instruments no greater than five years with
resets no less frequent than 3 months.
Dated:____________________ Revenue Shares ETF Trust, on behalf of the Series
listed on Exhibit A to the Securities Lending and Guarantee
Agreement
By: ___________________________
Name: Xxxxxxx X. Xxxxx
Title: President
SCHEDULE II
AGENT FEE
Domestic Securities Lending Lender: 80% Bank: 20%
Notes:
Dated:____________________ Revenue Shares ETF Trust, on behalf of the Series
listed on Exhibit A to the Securities Lending and Guarantee
Agreement
By: ___________________________
Name: Xxxxxxx X. Xxxxx
Title: President
THE BANK OF NEW YORK
By: _________________________
Name:
Title:
