EX-99.G2
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g2securlendauthor.htm
SECUR LENDING AUTHOR AGMT
SECURITIES LENDING AUTHORIZATION AGREEMENT
AGREEMENT, dated as of May 14, 2011 between ALLIANZ VARIABLE INSURANCE PRODUCTS TRUST (the “Client”), with respect to each of the funds identified on Attachment 1 hereto, as amended, modified or supplemented from time to time (each a “Lender” and collectively the “Lenders”) , and THE BANK OF
NEW YORK MELLON (“Bank”).
PRELIMINARY STATEMENT
Having determined that securities loan transactions are suitable and that each Lender has the financial resources for such transactions, Client desires to authorize Bank, on an exclusive basis, to establish, manage and administer a Securities Lending Program, subject to the terms and conditions of this Agreement, with respect to the lendable securities of Lenders held by Bank (the “Program”);
Accordingly, in consideration of the mutual promises and covenants contained in this Agreement, and intending to be legally bound, Bank and Client, on behalf of each Lender, agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, 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, with respect to each Lender, the custodial account(s) established and maintained by Bank on behalf of each such Lender for the safekeeping of Securities and monies received by Bank from time to time.
3. “Approved Investment” shall mean one or more pooled investment vehicles established by Bank or a Bank Affiliate for the exclusive purpose of the investment and reinvestment of Cash Collateral by the Bank on behalf of Lenders and meeting the requirements of the exemption set forth in Rule 12d1-1 under the Investment Company Act of 1940, as amended (the “1940 Act”) and, as set forth on Schedule I hereto (as may be amended from time to time by written agreement of the Bank and the Client).
4. “Authorized Person” shall mean any person duly authorized by Client to give Oral and/or Written Instructions on behalf of Lenders, such persons to be designated in a Certificate of Authorized Persons which contains a specimen signature of such person.
5. “Bank 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.
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7. “Borrower” shall mean those entities selected by Bank from time to time to participate as borrowers under the Program. Schedule II attached hereto lists the Borrowers in the Program as of the date hereof. Bank shall provide Client with a list of the Borrowers in the Program from time to time but in no event less than five days prior to making any loan of any Lender’s securities to any borrower not previously disclosed. Client may, with Written Instructions to the Bank, prohibit one or more Borrowers from borrowing Securities from one or more of the Lenders.
8. “Business Day” shall mean any day on which all of the following are open for business: (a) Bank; (b) the Depositories, as applicable for particular Loans; and (c) the principal exchanges or markets for the relevant Securities and/or Collateral.
9. “Cash Collateral” shall mean U.S. dollars and such other currencies as may be agreed in writing between the Bank and the Lender from time to time.
10. “Certificate of Authorized Persons” shall mean the written certificate designating Authorized Persons which Client shall deliver to Bank from time to time.
11. “Collateral” shall mean Cash Collateral and such other forms as may be agreed upon by the Bank and Client from time to time in writing.
12. “Collateral Account” shall mean, with respect to each Lender, one or more accounts established and maintained by Bank for such Lender for the purpose of holding Collateral, Approved Investments, Proceeds and any Securities Loan Fee paid by Borrowers in connection with Loans of such Lender hereunder.
13. “Collateral Requirement” shall mean on any Business Day (i) with respect to the loan of U.S. Securities, an amount equal to 102% of the then-current Market Value of such Loaned Securities; (ii) with respect to Foreign Securities an amount equal to 105% of the then current Market Value of such Loaned Securities, except in the case of loans of Foreign Securities which are denominated and payable in US Dollars, in which event the “Collateral Requirement” shall be an amount equal to 102% of the then-current Market Value of such Loaned Securities and (iii) such other percentage(s) as may be otherwise mutually agreed from time to time in writing.
14. “Depository” shall mean The Federal Reserve Bank of
New York /Treasury book-entry system, Depository Trust Company, Euroclear, CREST and any other domestic or foreign securities depository or clearing agency used for the settlement and/or custody of U.S. Securities and/or Foreign Securities, as the case may be, and their respective nominees.
15. “Distributions” shall mean (i) amounts equivalent to all interest, dividends and other cash payments payable in respect of Loaned Securities; and (ii) all non-cash distributions payable by Borrowers in respect of Loaned Securities.
16. “Foreign Security” shall mean any Security which is cleared and principally settled outside the United States.
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 independent of the Borrowers
18. “Loan” shall mean a loan of Securities on behalf of a Lender hereunder.
19. “Loaned Security” shall mean any Security of a Lender which is subject to a Loan.
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20. “Market Value” shall mean (a) with respect to Cash Collateral, its amount as of the time of receipt thereof by the Bank, unadjusted for any subsequent increases or decreases in value as a result of any investment thereof by the Bank pursuant to this Agreement, (b) with respect to Securities and/or Non-Cash Collateral, the price of such Securities and/or Non-Cash Collateral 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 and/or Non-Cash Collateral, and (c) with respect to Letters of Credit, the undrawn stated amount of such Letters of Credit.
21. “Oral Instructions” shall mean verbal instructions actually received by Bank.
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 a Lender 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 as agent for its customers (including Lenders) from time to time.
26. “Securities Loan Fee” shall mean the amount, if any, payable by a Borrower to Bank pursuant to the Securities Borrowing Agreement in connection with Loans.
27. “Security” means any U.S. Security and/or Foreign Security and shall include U.S. Treasury securities maintained in the Book-Entry System, any other securities issued or fully guaranteed by the United States government or any agency, instrumentality, or establishment of the United States government, securities of federally-sponsored agencies, 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. “U.S Security” shall mean securities which are cleared and principally settled in the United States.
29. “Written Instructions” shall mean written communications actually received by Bank by S.W.I.F.T., letter, facsimile or other method or system specified by Bank as available for use in connection with the services hereunder.
ARTICLE II
APPOINTMENT OF BANK; SCOPE OF AGENCY AUTHORITY
1. Appointment; Separate Agreements. Client hereby appoints Bank as agent for each Lender to lend Securities in the Account of such Lender to Borrowers from time to time (except Securities which Client has advised Bank in Written Instructions are no longer subject to the representations set forth in Article III, sub-paragraph (d) hereof) in accordance with the provision hereof, and Bank hereby accepts appointment as such agent, agrees to so act. The Bank shall have authority to do or cause to be done all acts by and on behalf of each Lender as it shall determine to be desirable, necessary or appropriate to implement and administer the Loan of securities on behalf of Lenders as contemplated by this Agreement.
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This Agreement shall be deemed to create a separate agreement between the Bank and each Lender to the same extent as though each such Lender had separately executed an identical agreement. Any reference to Lender in this Agreement shall be deemed to refer solely and exclusively to a particular Lender to which a given lending transaction under this Agreement relates. The rights and obligations of each Lender pursuant hereto or in connection with any transaction hereunder, are independent of, and separate and distinct from, the rights and obligations of each and every other Lender pursuant hereto or in connection with any transaction hereunder. Under no circumstances shall the rights, obligations or remedies with respect to a particular Lender constitute a right, obligation or remedy applicable to any other Lender. In particular, and without limiting the generality of the foregoing, the parties hereto agree that: (a) any event of default regarding one Lender shall not create any right or obligation with respect to any other Lender; (b) neither the Bank nor any Borrower shall have any right to set off any claims of or against a Lender by applying property or rights of any other Lender, or series thereof, and (c) no Lender, or series thereof, shall have claims to, or the right to set off against, assets or property held by a Borrower on account of any other Lender or series thereof.
Until such time as a Loan is terminated and the Loaned Securities are returned to Lender, a Borrower shall have all incidents of ownership of the Loaned Securities, including but not limited to, the right to transfer the Loaned Securities to others; provided however, that Borrower will be obligated to Lender with respect to all Distributions. Each Lender hereby waives any and all voting rights with respect to Loaned Securities and the right to participate in any dividend reinvestment program during the term of any Loan.
2. Securities Borrowing Agreement. Client hereby authorizes Bank on behalf of the Lenders to lend Securities in the Account to Borrowers pursuant to Bank’s standard form(s) of Securities Borrowing Agreement as in effect from time to time, copies of which shall be made available to Client upon request.
3. Loan Opportunities. Bank shall treat each 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 Client.
4. Use of Book-Entry System and Depositories. Client 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 a Lender hereunder, Bank shall identify as belonging to such Lender a quantity of Securities in a fungible bulk of Securities shown as credited to 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.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Client hereby represents, warrants and covenants to Bank, which representations and warranties and covenants 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 any Lender’s plan document, or any agreement binding on any Lender or affecting its property, and is enforceable against each Lender in accordance with its terms, except as enforceability 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 Client has and have been duly and properly authorized to do so and the Client has been duly and properly authorized to act on behalf of or with respect to the Lenders;
(c) Each Lender is lending Securities as principal for its own account and will not transfer, assign or encumber its interest in, or rights with respect to, any Loans; and
(d) All Securities in the Account are free and clear of all liens, claims, security interests and encumbrances and no such security has been sold. Client shall promptly deliver to Bank Written Instructions identifying any and all Securities which are no longer subject to the representations contained in this sub-paragraph.
ARTICLE IV
SECURITIES LENDING TRANSACTIONS
1. General Bank Responsibilities.
(a) Bank shall enter Loans pursuant to the Securities Borrowing Agreement and is hereby authorized to negotiate with each Borrower the amount of Rebates or Securities Loan Fee payable in connection with particular Loans, and to take all actions deemed necessary or appropriate in order to perform on Lender’s behalf thereunder, including without limitation:
(i) initially receiving Collateral having a Market Value of not less than the Collateral Requirement;
(ii) collecting Distributions from Borrower and, unless otherwise agreed, crediting cash Distributions to the Account in the currency in which such Distributions are paid;
(iii) collecting applicable Securities Loan Fees and crediting the same to the Collateral Account;
(iv) if, as of the close of trading on any Business Day the Market Value of Collateral received by Bank from a Borrower in respect of a Loan hereunder is less than the then current Market Value of all of the Loaned Securities, demanding additional Collateral from such Borrower for delivery on the next following Business Day in an amount such that the additional Collateral together with the Collateral then
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held by Bank in connection with Loans to such Borrower shall have a Market Value at the time of such demand of not less than the Collateral Requirement; and
(v) terminating Loans whenever Bank in its sole discretion elects to do so or is directed to do so by Client.
Upon termination of any Loan, including a termination by the Borrower, (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 and subject to satisfaction of Lender’s obligations under paragraph 2(b) of Article IV, 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.
(b) Where Bank is authorized or directed by Client to convert currency received hereunder into another currency, Bank shall effect such transactions through customary banking channels whenever it is practicable to do so. All expenses and risks incident to such conversions shall be borne by Lender, and Bank shall have no responsibility for the fluctuation in exchange rates affecting such conversions.
2. Approved Investments; Principal Losses.
(a) Bank is hereby authorized and directed, without obtaining any further approval from Client, 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) Any losses of principal or other diminution of value from investing and reinvesting Cash Collateral (whether realized or unrealized, collectively, “Principal Losses”) shall be at Lender’s risk and for Lender’s account. To the extent any Principal Loss results in the amount of Cash Collateral or other Collateral held by Bank for the Collateral Account of any Lender being less than the value of Cash Collateral or other Collateral as and when delivered by a Borrower (as determined by Bank at any time and from time to time and after giving effect to the xxxx to market provisions of the Securities Borrowing Agreement), Client agrees to pay or cause such Lender to pay to Bank on demand cash in an amount equal to such deficiency provided, however, that if such amounts are not so paid, Bank is hereby authorized to obtain and setoff such amounts directly from and against the Account or the Collateral Account of such Lender.
(c) 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 Client or Lender with respect to the same.
3. Termination of Loans.
(a) Bank shall terminate any Loan no later than five Business Days after:
(i) receipt by Bank of a notice of termination from a Borrower;
(ii) receipt by Bank of Written Instructions to do so;
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(iii)
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receipt by Bank of Written Instructions advising it that the Borrower to whom such Loan was made is no longer a permitted Borrower of Lender’s Securities;
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(iv)
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receipt by Bank of Written Instructions advising that the Loaned Security is no longer subject to the representations contained in Article III hereof;
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(v)
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receipt by Bank of notice or Written Instructions advising that an Event of Default (as defined in the Securities Borrowing Agreement) has occurred and is continuing beyond any applicable grace period;
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(vi) whenever Bank, in its sole discretion, elects to terminate such Loan; or
(vii) termination of this Agreement.
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 (or the equivalent thereof in the event of reorganization, recapitalization or merger of the issuer of the Loaned Securities) and any Distributions then due and subject to satisfaction of Lender’s obligations under paragraph 2(b) of Article IV, 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.
(b) In order for Bank to timely settle the sale of Loaned Securities, it shall be Client’s responsibility to ensure timely 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. Remedy for Borrower Default; Subrogation.
(a) If for any reason (including as a result of an Act of Insolvency) a Borrower fails to return any Loaned Securities as and when required pursuant to the Securities Borrowing Agreement, Bank shall, within a commercially reasonable time under prevailing circumstances (the “Replacement Period”), take such actions which it deems necessary or appropriate to liquidate Approved Investments and Collateral held in connection with Loans to such Borrower and, unless advised by Lender to the contrary, shall apply the proceeds thereof to the purchase of Securities identical to the Loaned Securities (or the equivalent thereof in the event of a reorganization, recapitalization or merger 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(b) 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(b) 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) Client agrees, without the execution of any documents or the giving of any notice, that Bank is and will remain subrogated to all of Client’s and Lender’s respective rights under the Securities Borrowing Agreement or otherwise (to the extent of any credit pursuant to paragraph 5(a) of this Article),
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including but not limited to, Lender’s rights with respect to Loaned Securities and Distributions, and Collateral, Approved Investments and Proceeds. Client agrees to execute, or cause Lender 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) of this Article if it believes that such action will violate any applicable statute, regulation, rule, order or judgment. Furthermore, except as provided in paragraph 5(a) of this Article, Bank shall have no other liability to Client and/or 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 Client or Bank may terminate the provisions of paragraph 5(a) of this Article with respect to any Borrower at any time by delivery of a notice to the other party specifying a termination date not earlier than 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.
(e) Bank may setoff any amounts payable by Lender under this Agreement against amounts payable by Bank under paragraph 5(a) of this Article.
6. Taxes. Each 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”). Without limiting the generality of the foregoing, each Lender acknowledges that the tax treatment of amounts equivalent to all interest, dividends or other cash Distributions paid with respect to Loaned Securities (“In Lieu of Distributions”) may differ from the tax treatment of the interest, dividends or other cash distributions to which such payment relates and that Client and/or Lender, has made its own determination as to the tax treatment of any In Lieu of Distributions, remuneration or other funds received hereunder. Each Lender shall severally 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). For the avoidance of doubt, and notwithstanding any provision in this Agreement to the contrary, Lender shall not be responsible for, and shall not indemnify the Bank for, the amount of any Taxes that Bank or any withholding agent is required under applicable law (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, any Borrower. 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, upon notice to the Client, from the Account or any cash account maintained by Lender with Bank 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 Client of the additional amount of cash (in the appropriate currency) required, and Client shall, or shall cause Lender to, 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.
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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 willful misconduct of Bank. 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. Bank shall not 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, Client agrees to reimburse or cause Lender to reimburse Bank and to hold Bank 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 Client, Lender, or any third party 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 willful misconduct of Bank. The foregoing shall be a continuing obligation of Client and Lender, their respective 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 of Authorized Persons 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. 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
(a) Bank may, in its sole discretion, advance funds to any Lender in order to pay to Borrowers any Rebates or to return to Borrowers Cash Collateral to which they are entitled or take any action prescribed under Section 5(a) of Article IV hereof or for any other purpose pursuant to this Agreement. Bank may also credit the Account or Collateral Account with Securities Loan Fees payable by Borrowers prior to its receipt thereof. Any such credit or advance hereunder (each an “Advance”) shall be conditional upon receipt by Bank of final payment or settlement and may be reversed to the extent final payment is not received.
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(b) Client agrees to repay or cause Lender to repay Bank on demand the amount of any Advance or any other amount owed by Lender hereunder plus (except as may be prohibited by law) accrued interest at a rate per annum (based on a 360-day year for the actual number of days involved) not to exceed the relevant overnight inter-bank offered rate as determined by Bank. In the event that any such Advance or other amounts owed by Lender are not so paid, Bank is hereby authorized to obtain such amounts directly from, and setoff such amounts against, the Account or the Collateral Account and Bank shall have a right of setoff against, all assets now or hereafter held in or credited to the Account and the Collateral Account (held on Lender’s behalf) and any other property at any time held by Bank or any Bank Affiliate for the account of Lender.
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. In consideration for the securities lending services to be provided by Bank hereunder, Bank shall be entitled to compensation in accordance with the fee schedule set forth in Schedule III attached hereto, as may be amended from time to time upon written agreement of the parties.
9. Instructions.
(a) Subject to the terms below, Bank shall be entitled to rely upon any Written or Oral Instructions actually received by Bank and reasonably believed by Bank to be duly authorized and delivered. Client agrees that an Authorized Person shall forward to Bank Written Instructions confirming Oral Instructions by the close of business of the same day that such Oral Instructions are given to Bank. Client agrees that the fact that such confirming Written Instructions are not received or that contrary Written Instructions are received by Bank shall in no way affect the validity or enforceability of transactions authorized by such Oral Instructions and effected by Bank.
(b) If Bank receives Written Instructions which appear on their face to have been transmitted by an Authorized Person via (i) computer facsimile, email, the Internet or other insecure electronic method, or (ii) secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys, Client understands and agrees that Bank cannot determine the identity of the actual sender of such Written Instructions and that Bank shall conclusively presume that such Written Instructions have been sent by an Authorized Person. Lender shall be responsible for ensuring that only Authorized Persons transmit such Written Instructions to Bank and that all Authorized Persons treat applicable user and authorization codes, passwords and/or authentication keys with extreme care.
(c) Client and each Lender acknowledges and agrees that it is fully informed of the protections and risks associated with the various methods of transmitting Written Instructions to Bank and that there may be more secure methods of transmitting Written Instructions than the method(s) selected
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by Client. Client agrees that the security procedures (if any) to be followed in connection with its transmission of Written Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances.
(d) If Client elects to transmit Written Instructions through an on-line communication system offered by Bank, Client’s use thereof shall be subject to the Terms and Conditions which are contained in the agreement for custodial services between Lender and Bank pursuant to which the Account is established hereunder, or in the absence thereof, Bank’s standard Terms and Conditions for use of such system. If Client elects (with Bank’s prior consent) to transmit Written Instructions through an on-line communications service owned or operated by a third party, Lender agrees that Bank shall not be responsible or liable for the reliability or availability of any such service.
10. Disclosure of Account Information. It is understood and agreed that Bank is authorized to supply any information regarding Client, Lender, the Account or Collateral Account which is required by any statute, regulation, rule or order now or hereafter in effect. In addition, in connection with the administration of the Program and in order to facilitate the approval Loans, Bank is specifically authorized to disclose to each Borrower, the identity of Client and Lender as well as such other information specific to Lender (including, without limitation, business address, U.S. Tax Identification Number, and lendable Securities), as is reasonably necessary in accordance with industry practice for the conduct of the Program by the Bank.
11. Statements. Bank will at least monthly furnish Client 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.
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 at the option of any party upon thirty (30) days prior written notice to the other party. After such notice is given or received by Bank and subject to satisfaction of Lender’s obligations under paragraph 2(b) of Article IV, Bank shall not make any further Loans and shall promptly take all commercially reasonable actions to terminate Loans then outstanding in accordance with the provisions hereof. The obligations and the rights of Client, Lender and Bank under this Agreement with respect to any outstanding loans shall survive and continue despite any termination of this Agreement until fully performed or satisfied.
11
ARTICLE VII
MISCELLANEOUS
1. Exclusivity. Client 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. Certificate of Authorized Persons. Client agrees to furnish to Bank a new Certificate of Authorized Persons 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 of Authorized Persons 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, with a copy to Client Service Center 000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxxxxxxxxx, 00000, 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 Client and received by it at its office at 0000 Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxxx, XX 00000-0000, attn: Chief Legal Officer, or at such other place as Client 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. Amendments. This Agreement 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. Any entity controlled by The Bank of
New York Mellon Corporation, which shall by merger, consolidation, purchase or otherwise succeed to substantially all of the securities lending business of Bank shall, upon such succession and without any appointment or other action by Client, be and become successor to Bank’s right, title and interest hereunder upon notification to Client.
12
(b) Bank may utilize the services of one or more Bank Affiliates as sub-agent to perform all or any portion of the services to be provided by Bank, provided, however, that Bank shall be responsible for the acts and omissions of such sub-agent to the same extent as though such acts or omissions were the acts or omissions of Bank.
8. Governing Law; Consent to Jurisdiction; Waiver of Immunity; Jury Trial Waiver. Except to the extent superseded by federal law, this Agreement shall be construed in accordance with the laws of the State of
New York, without regard to conflict of laws principles. Client hereby consents to the jurisdiction of a state or federal court situated in the Borough of Manhattan, The City of
New York in connection with any dispute arising hereunder. To the extent that in any jurisdiction Client or 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, it irrevocably agrees not to claim, and it hereby waives, such immunity. Client and Bank each hereby irrevocably waive 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 Client and 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 Client. Client 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 Client and Lender. Accordingly, prior to opening an Account hereunder Bank will ask Lender to provide certain information including, but not limited to, Client’s and 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. Client and Lender agree that Bank cannot open an account hereunder unless and until Bank verifies Client’s and Lender’s identity in accordance with its CIP.
12. SIPA NOTICE; Certain Losses. 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
Client acknowledges that certain events including, but not limited to, Client's and/or Lender’s termination of any Loan or Loans or termination of participation in the Program, certain changes to the composition of Lender’s lendable Securities, extraordinary changes in market conditions, applicable interest rates or the bankruptcy, insolvency or deteriorating credit condition of any issuer of a security may result in a loss to Lender.
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.
|
ALLIANZ VARIABLE INSURANCE PRODUCTS TRUST
By: /s/ Xxxxx Xxxxxx
(Signature)
Name: Xxxxx Xxxxxx
Title: President
|
THE BANK OF NEW YORK MELLON
By: /s/ Xxxxx X. Xxxxxxx
(Signature)
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
|
14
SCHEDULE I
to
SECURITIES LENDING AUTHORIZATION AGREEMENT
Dated May 14, 2011
by and between
THE BANK OF
NEW YORK MELLON, and ALLIANZ VARIABLE INSURANCE PRODUCTS TRUST , (the “Agreement”)
APPROVED INVESTMENTS (U.S. Dollar Cash Collateral)
In accordance with the Agreement, Cash Collateral received by Bank on behalf of Lender shall be invested and maintained in the
The ALLIANZ VARIABLE INSURANCE PRODUCTS SECURITIES LENDING COLLATERAL FUND No. 1 a series of THE ALLIANZ VARIABLE INSURANCE PRODUCTS SECURITIES LENDING COLLATERAL TRUST, a Delaware Statutory Trust
Client, on behalf of each Lender Acknowledges receipt of the
Declaration of Trust
of the ALLIANZ VARIABLE INSURANCE PRODUCTS SECURITIES LENDING COLLATERAL TRUST
By: /s/ Xxxxx Xxxxxx
Title: President
Date: 3/14/2011
15
SCHEDULE II
to
SECURITIES LENDING AUTHORIZATION AGREEMENT
dated May 14, 2011
by and between
THE BANK OF
NEW YORK MELLON, and ALLIANZ VARIABLE INSURANCE PRODUCTS TRUST, (the “Agreement”)
Approved Borrowers
|
Domestic Broker/Dealers & Banks
1. ABN AMRO Securities (USA) LLC
2. Alpine Associates L.P.
3. Alpine Partners L.P.
4. Banca IMI Securities Corp.
5. Bank of New York Mellon
6. Barclays Capital, Inc. *
7. BMO Capital Markets Corp
8. BNP Paribas Prime Brokerage Inc.
9. BNP Paribas Securities Corp *
10. BNY Convergex Execution Solutions LLC
11. Cantor Xxxxxxxxxx & Co. *
12. CIBC World Markets Corporation
13. Citadel Securities LLC
14. Citigroup Global Markets, Inc. *
15. Commerz Markets LLC
16. Credit Agricole (USA) Inc.
17. Credit Suisse Securities (USA) LLC *
18. Daiwa Securities America, Inc. *
19. Deutsche Bank Securities, Inc. *
20. First Clearing, LLC
21. FTN Financial Capital Markets
22. Xxxxxxx, Sachs & Company *
23. Guggenheim Liquidity Services LLC
24. HBK Global Securities L.P.
25. HSBC Securities (USA) Inc. *
26. ING Financial Markets LLC.
27. Xxxxxx Xxxxxxxxxx Xxxxx LLC
28. Jefferies and Co., Inc. *
29. X.X. Xxxxxx Clearing Corp.
30. X.X. Xxxxxx Securities, Inc. *
31. KDC Merger Arbitrage Fund L.P.
32. Knight Clearing Services LLC
33. Lazard Capital Markets, LLC
34. Maple Securities USA Inc.
35. Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Inc.
36. MF Global Securities Inc.
37. Mizuho Securities (USA) Inc. *
38. Xxxxxx Xxxxxxx & Co., Inc. *
39. MS Securities Services, Inc.
40. National Financial Services LLC
41. Natixis Securities North America Inc.
42. NewEdge USA, LLC
43. Nomura Securities International, Inc. *
44. Pershing LLC
45. Xxxxxxxx Securities LLC
46. Xxxxxxx Xxxxx & Associates
47. RBC Capital Markets LLC
48. RBC Dominion Securities Inc.
49. RBS Securities Corp. *
50. RCap Securities, Inc.
|
51. Scotia Capital (USA) Inc.
52. SG Americas Securities, LLC
53. South Street Securities LLC
54. TD Securities (USA) LLC
55. Timber Hill LLC
56. UBS Securities LLC *
57. Xxxxx Fargo Securities, LLC
International Brokers & Banks
58. Abbey National Treasury Services PLC
59. ABN AMRO Bank NV
60. ABN AMRO Markets (UK) Ltd.
61. Banc of America Securities Ltd.
62. Bank of Scotland PLC
63. Barclays Bank, PLC
64. Barclays Capital Securities Ltd.
65. BNP Xxxxxxx
00. Citigroup Global Markets Ltd
67. Commerzbank AG
68. Credit Suisse Securities (Europe), Ltd.
69. Deutsche Bank, AG
70. Xxxxxxx Sachs International
71. HSBC Bank PLC
72. HSBC France
73. ING Bank, N.V.
74. X.X. Xxxxxx Markets Ltd.
75. X.X. Xxxxxx Securities, Ltd.
76. Macquarie Bank Ltd.
77. Xxxxxxx Xxxxx International
78. MF Global (UK) Ltd.
79. Xxxxxx Xxxxxxx & Co. International, PLC
80. Xxxxxx Xxxxxxx Securities, Ltd
81. Natixis
82. Nomura International PLC
83. Royal Bank of Canada Europe Ltd.
84. The Royal Bank of Scotland N.V. **
85. The Royal Bank of Scotland N.V., New York Branch**
86. The Royal Bank of Scotland PLC
87. Skandinaviska Enskilda Xxxxxx XX
88. Societe Generale **
89. Societe Generale, New York Branch **
90. UBS AG
* Denotes Primary US Government Securities Dealer
** Treated as single entity for credit & processing purposes.
(Rev. 12/01/10)
|
16
SCHEDULE III
to
SECURITIES LENDING AUTHORIZATION AGREEMENT
dated May 14, 2011
by and between
THE BANK OF NEW YORK MELLON, and ALLIANZ VARIABLE INSURANCE PRODUCTS TRUST, (the “Agreement”)
In consideration for the securities lending services to be provided by the Bank hereunder, the Bank shall be entitled to the following:
Bank shall retain 9% of the net securities lending revenues generated under this Agreement as compensation for its securities lending services and Lender shall be entitled to the remainder of such net securities lending revenues. For purposes hereof, net securities lending revenues shall mean (i) all Securities Loan Fees; plus (ii) all Proceeds and earnings from the investment and reinvestment of Cash Collateral minus Rebate Fees paid by the Bank to the Borrower in respect of Loans. Bank is hereby authorized to charge such compensation against and collect and or retain such compensation from the revenues derived from the securities lending activities conducted on behalf of Lender pursuant to this Agreement.
The fees paid to Bank hereunder are solely in consideration of securities lending services rendered by Bank and are in addition to any other fees or compensation to which the Bank (or any Bank Affiliate) may be entitled for services rendered for Client and/or Lender under other agreements.
17
ATTACHMENT 1
to
SECURITIES LENDING AUTHORIZATION AGREEMENT
dated May 14, 2011
by and between
THE BANK OF NEW YORK MELLON, and ALLIANZ VARIABLE INSURANCE PRODUCTS TRUST, the Client, on behalf of
various Funds identified therein (the “Agreement”)
LIST OF LENDERS
The following is the list of the “Lenders” referred to in the
Securities Lending Authorization Agreement dated May 14, 2011, by and between THE BANK OF NEW YORK MELLON and ALLIANZ VARIABLE INSURANCE PRODUCTS TRUST, as Client.
| |
Name of Fund
|
Taxpayer Identification Number
|
|
2308
|
AZL Money Market Fund
|
00-0000000
|
|
2312
|
AZL Xxxxxx Xxxxxxx Mid Cap Growth Fund (fka Xxx Xxxxxx Mid Cap Growth Fund)
|
00-0000000
|
|
2313
|
AZL Xxxxx Xxxxx Large Cap Value Fund
|
00-0000000
|
|
2314
|
AZL Xxx Xxxxxx Growth and Income Fund
|
00-0000000
|
|
0000
|
XXX Xxxxx XX Venture Fund
|
00-0000000
|
|
2326
|
AZL Invesco International Equity Fund (fka Aim International Equity Fund)
|
00-0000000
|
|
2327
|
AZL Allianz AGIC Opportunity Fund (fka OCC Opportunity Fund)
|
00-0000000
|
|
2328
|
AZL Franklin Small Cap Value Fund
|
00-0000000
|
|
2329
|
AZL Xxxxxx Xxxxxxx International Equity Fund (FKA: Xxx Xxxxxx Int. Equity Fund)
|
00-0000000
|
|
2330
|
AZL Columbia Small Cap Value Fund
(fka: AZL Dreyfus Premier Small Cap Value Fund)
|
00-0000000
|
|
2332
|
AZL XX Xxxxxx US Equity Fund
|
00-0000000
|
|
2333
|
AZL Xxx Xxxxxx Equity and Income Fund
|
00-0000000
|
18
|
2334
|
AZL MFS Investors Trust Fund
|
00-0000000
|
|
2335
|
AZL Black Rock Capital Appreciation Fund
|
00-0000000
|
|
2336
|
AZL Xxxxxx Quantitative Small Cap Growth Fund
|
00-0000000
|
|
2338
|
AZL Xxxxxx Xxxxxxx Global Real Estate Fund (fka: Xxx Xxxxxx Global Real Estate Fund)
|
00-0000000
|
|
2339
|
AZL Columbia Mid Cap Value Fund (fka:Xxxxxxxxx Xxxxxx Regency Fund)
|
00-0000000
|
|
2340
|
AZL Xxxxxxxx Emerging Markets Equity Fund (fka:Xxxxxxxxxxx Developing Markets Fund)
|
00-0000000
|
|
2345
|
AZL S&P 500 Index Fund
|
00-0000000
|
|
2346
|
AZL Small Cap Stock Index Fund
|
00-0000000
|
|
2372
|
AZL NFJ International Value Fund
|
00-0000000
|
|
2374
|
AZL Mid Cap Index Fund
|
00-0000000
|
|
2375
|
AZL International Index Fund
|
00-0000000
|
|
2376
|
AZL Enhanced Bond Index Fund
|
00-0000000
|
|
2377
|
AZL Xxxxxxx 1000 Value Fund (New Fund)
|
00-0000000
|
|
2378
|
AZL Xxxxxxx 1000 Growth Fund (New Fund)
|
00-0000000
|
|
2379
|
AZL Gateway Fund (New Fund)
|
00-0000000
|
|
2380
|
AZL Franklin Xxxxxxxxx Founding Strategy Plus Fund (Multiple Sleeves)
|
00-0000000
|
| | | |
