SECURITIES LENDING AUTHORIZATION AGREEMENT
AGREEMENT, dated as of _______________, 2015 between DBX
ETF 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 those types of
securities, instrument, or interest in property in which Cash
Collateral may be invested or reinvested on behalf of Lenders,
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 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.
7. "Borrower" shall mean those entities selected by Bank
and approved by Client 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 approved by the Bank
from time to time. Client may, with Written Instructions to Bank,
approve one or more additional borrowers from the list of
Borrowers selected and approved by Bank for participation in the
program or prohibit one or more Borrowers from borrowing
Securities from one or more of the Lenders. The parties shall
amend Schedule II to reflect such Written Instructions promptly
upon receipt of such Written Instructions. If Client prohibits a
Borrower that had been previously approved by Client, Bank shall,
subject to the provisions hereof, recall any Loaned Securities to
such Borrower promptly and shall make no further Securities Loans
to that Borrower on behalf of the applicable Lender(s), even
though the party may participate as a borrower in Bank's
securities lending program with respect to other Lenders or with
respect to other customers of Bank.
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 Loaned Securities or
Collateral.
9. "Cash Collateral" shall mean U.S. dollars and such
other currencies as may be agreed in writing between 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.
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. "Loan" shall mean a loan of Securities on behalf of a
Lender hereunder.
18. "Loaned Security" shall mean any Security of a lender
which is subject to a Loan.
19. "Market Value" shall mean (a) with respect to Cash
Collateral, its amount as of the time of receipt thereof by Bank,
unadjusted for any subsequent increases or decreases in value as a
result of any investment thereof by Bank pursuant to this
Agreement, and (b) with respect to 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
and/or Non-Cash Collateral,.
20. "Oral Instructions" shall mean verbal instructions
actually received by Bank.
21. "Proceeds" shall mean any interest, dividends and
other payments and distributions received by Bank in respect of
Approved Investments.
22. "Rebate" shall mean the amount payable by a Lender to
a Borrower in connection with Loans at any time collateralized
by Cash Collateral.
23. "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.
24. "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.
25. "Subcustodian" shall mean a bank or financial
institution (other than a Depository) which is utilized by Bank
in connection with the receipt, delivery and custody of non-U.S.
assets.
26. "U.S Security" shall mean securities which are cleared
and principally settled in the United States.
27. "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 its 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.
This Agreement shall be deemed to create a separate agreement
between Bank and the Client on behalf of each Lender to the same
extent as though the Client had separately executed an identical
agreement on behalf of each Lender. 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 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 and (c) no Lender shall have claims to, or the
right to set off against, assets or property held by a Borrower on
account of any other Lender.
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. Lending Limitations. Notwithstanding any other
provision of this Agreement, the Client and Bank agree that at
the initiation of each Loan for a Lender, the aggregate market
value of such Lender's Loaned Securities outstanding pursuant
hereto, (and after giving effect to such Loan) shall not exceed an
amount equal to 33.3% of the Market Value of such Lender's total
assets (including the value of Collateral held by Bank on behalf
of such Lender) as recorded on the books and records of the of
Bank in its capacity as custodian for the Lenders (the "Lending
Limit"). If at any time subsequent to the making of a Loan on
behalf of any Lender pursuant hereto, the Lending Limit with
respect to such Lender shall be exceeded for any reason, Bank
shall recall outstanding Loans of such Lender by the amount of
such excess no later than the close of business on the following
Business Day to the extent commercially practicable. In the event
that the Bank is unable to initiate the recall of such outstanding
Loans by the close of such following Business Day, Bank shall use
its best efforts to promptly notify the affected Lender of such
fact.
3. Securities Borrowing Agreement. Client hereby
authorizes Bank on behalf of the Lenders to lend Securities in
the Account to Borrowers pursuant to Bank's Securities Borrowing
Agreement. The form of the Securities Borrowing Agreement used
with respect to a Loan made on behalf of any Lender shall not be
amended by Bank in any material respect which would make the
provisions of such Securities Borrowing Agreement inconsistent
with the provisions of this Agreement except with the prior
written consent of Client. Bank shall disclose fully to
Borrowers that Bank acts as agent for its clients and not as
principal.
4. 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.
5. Use of Book-Entry System and Depositories. Client
hereby authorizes Bank on a continuous and ongoing basis, to
deposit, either directly or through a Subcustodian, 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 in connection with 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 or the
applicable Subcustodian'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, either directly or through a Subcustodian will be
represented in accounts which include only assets held by Bank
or the applicable Subcustodian for customers, including but not
limited to accounts in which Bank acts in a fiduciary or agency
capacity.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
1. 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 constituent or governing
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.
2. Bank hereby represents, warrants and covenants to
Client, 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 constitutes a legal, valid and binding
obligation of Bank, enforceable against it in accordance with
its terms except as enforcement may be limited by bankruptcy,
insolvency or similar laws, or by equitable principles relating
to or limiting creditors' rights generally;
(b) the execution, delivery and performance by Bank of
this Agreement and of each Securities Borrowing Agreement, and
Bank's entering into Loans under Securities Borrowing Agreements
on behalf of Lenders, have been duly and validly authorized by
Bank, and Loans made in accordance with the terms hereof will
comply with all laws and regulations relating to the lending of
securities and applicable to Bank as lending agent; and
(c) Bank has the power to execute and deliver this
Agreement, to enter into the transactions contemplated hereby
and to perform its obligations hereunder, and it has taken all
necessary action to authorize such execution, delivery and
performance.
ARTICLE IV
SECURITIES LENDING TRANSACTIONS
1. General Bank Responsibilities.
(a) Bank shall enter Loans pursuant to the applicable
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 prior to or
concurrent with the delivery of Loaned Securities to the
Borrower;
(ii) collecting Distributions from Borrower and, unless
otherwise agreed, crediting cash Distributions to the Account
in accordance with Bank's crediting schedule in the currency in
which such Distributions are paid. Non-cash distributions on
Loaned Securities in the nature of stock splits or stock
dividends by default shall be added to the Loan and become
Loaned Securities; provided that Lender may, by giving Bank ten
(10) Business Days' notice prior to the date of such non-cash
distribution, direct Bank to request that the Borrower deliver
such non-cash distributions to its Lender's Account instead, in
which case Bank shall arrange for such non-cash distribution to
be credited to that Lender's Account as soon as practicable;
(iii) 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 Collateral Requirement 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 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
(iv) 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 (which shall be effected according
to the standard settlement time for trades in the particular
Loaned Security), including a termination by the Borrower and
receipt from the Borrower of the Loaned Securities (or the
equivalent thereof in the event of a 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) 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 ▇▇▇▇ 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. If any Approved Investment in which a
Lender's Cash Collateral is invested is a collective investment
vehicle which is a commingled or common trust fund operated by
Bank or any Bank Affiliate that is available only to pension or
profit sharing trusts which meet the requirements of Section
401(a) and related sections of the Internal Revenue Code of 1986,
as amended, or corresponding provisions of specific income tax
laws of the United States, such common or commingled trust fund
shall constitute an integral part of Lender and this Agreement.
(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 Collateral held by Bank
for the Collateral Account of any Lender being less than the
value of 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 ▇▇▇▇ 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;
(iii) 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;
(iv) receipt by Bank of Written Instructions advising
that the Loaned Security is no longer subject to
the representations, warranties and covenants
contained in Article III hereof;
(v) 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;
(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), including termination by the Borrower 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 and/or Rebates 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 provided that such
notification shall be deemed to have been given if provided to
Bank, in its capacity as custodian for the Client, through
methods customarily followed by the parties pursuant to such
custody arrangement.
4. Reserved .
5. Remedy for Borrower Insolvency 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 applicable Securities
Borrowing Agreement, Bank shall within a commercially reasonable
time under the prevailing circumstances (the "Replacement
Period") take all actions which it deems necessary or
appropriate to liquidate Approved Investments held in connection
with Loans to such Borrower and, unless advised by Lender to the
contrary, 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 Approved Investment 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 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 Approved Investment liquidation proceeds, such
calculation to be made on the date of such credit.
(b) In addition to making the purchases or payments
required above, Bank shall pay to the Lender amounts equivalent
to all Distributions on the Loaned Securities, the record dates
for which occur before the date that the Bank provides
replacement securities or makes a payment to the Lender pursuant
to paragraph 5(a) of this Article and that have not otherwise
been credited to the Lender's Account. For purposes of this
paragraph, the value of such Distributions shall be calculated
net of taxes, expenses or other deductions that would normally
accrue to such Distributions. The Bank shall use Collateral or
the proceeds of such Collateral to the extent available to make
such payments of Distributions and the Bank shall be responsible
for satisfying any shortfall.
(c) 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), 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.
(d) Bank shall have no obligation to take any actions
pursuant to paragraphs 5(a) and 5(b) of this Article if it
believes that such action will violate any applicable statute,
regulation, rule, order or judgment. Furthermore, except as
provided in paragraphs 5(a) and 5(b) 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.
(e) Either Client or Bank may terminate the provisions of
paragraphs 5(a) and 5(b) 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.
(f) Bank may setoff any amounts payable by Lender under
this Agreement against amounts payable by Bank under paragraphs
5(a) and 5(b) of this Article.
(g) In the event that the Bank is required to replace
securities or to make any payment of Distributions under
paragraphs 5(a) or 5(b) of this Article, the Lender agrees that,
to the extent of such performance or payment, the Bank shall be
subrogated to, and the Lender shall assign, and be deemed to
have assigned, to the Bank the Lender's rights to and against
the Borrower in respect of the related Loan.
6. Taxes. (a) 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). 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 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.
(b) In order to comply with Sections 1471 through 1474 of
the U.S. Internal Revenue Code of 1986, as amended (the "Code"),
any current or future regulations or official interpretations
thereof, any agreement entered into pursuant to Section 1471(b)
of the Code, or any fiscal or regulatory legislation, rules or
practices adopted pursuant to any intergovernmental agreement
entered into in connection with the implementation of such
Sections of the Code, collectively referred to as the Foreign
Account Tax Compliance Act ("FATCA"), which may arise in
connection with this Agreement, Client and Lender agree (i) to
provide to Bank sufficient information (including any changes to
the foregoing) so Bank can determine whether it has any tax
withholding or other obligations under FATCA, (ii) that Bank
shall be entitled to make any withholding or deduction from
payments under this Agreement to the extent necessary to comply
with FATCA, (iii) Bank shall not have any liability for making
any such withholding or deduction, and (iv) to hold harmless
Bank for any losses Lender may suffer due to the actions Bank
takes to comply with FATCA. The terms of this section shall
survive the termination of this Agreement.
ARTICLE V
CONCERNING BANK
1. Standard of Care; Reimbursement.
(a) Bank shall be liable for, and shall indemnify and hold
harmless Lender from and against, any direct and foreseeable
losses and expenses sustained or incurred by such Lender and
arising out of the negligence, bad faith or willful misconduct
of Bank or the failure of the Bank to comply with the provisions
of this Agreement.
(b) 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 or the
failure of the Bank to comply wit the provisions of this
Agreement. 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's liability for the actions and omissions of
any Subcustodian is limited to the failure on the part of Bank
to exercise reasonable care in the selection or retention of
such Subcustodian in light of prevailing settlement and
securities handling practices, procedures and controls in the
relevant market. With respect to any costs, expenses, damages,
liabilities and claims (including attorneys' and accountants'
fees) incurred by Lender with respect to the actions or
omissions of any Subcustodian, Bank shall take appropriate
action to recover the same, and Bank's sole responsibility and
liability to Lender shall be limited to amounts so received from
such Subcustodian (exclusive of costs and expenses incurred by
Bank). Except for those claims arising out of the negligence,
bad faith or willful misconduct of Bank, 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.
(c) Except as specified in paragraphs 1(a) and 1(b) of
this Article V and 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 or the failure of the Bank to
comply wit the provisions of this Agreement. 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, or Approved Investments held in the
Account or Collateral Account.
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 provided that nothing set forth in
this Paragraph 3 is intended or shall be construed to relieve
Bank of any liability for which it is otherwise responsible as
and to the extent provided in Article IV hereof.
4. Advances; Overdrafts and Indebtedness; Security
Interest.
(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.
(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) equal to 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. In order to secure repayment of any
Advance or other indebtedness to Bank arising hereunder, Client
and Lender hereby agree that Bank shall have a continuing lien
and security interest in and 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
benefit of Lender; provided that Bank shall have no lien or
security interest hereunder in any Security issued or guaranteed
by a Bank Affiliate or if such lien or security interest is
prohibited by law. In this regard, Bank shall be entitled to
all the rights and remedies of a pledgee under common law and a
secured party under the applicable laws and/or regulations as
then in effect. Bank and Client agree and acknowledge that the
provisions of this Section 4 including any Advance made by Bank
hereunder and any grant by Lender of any security for the
repayment of any such Advance shall constitute a "securities
contract," as such term is defined in Section 741 of Title 11 of
the United States Code, as amended.
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. In order to perform its valuation
responsibilities with respect to Loaned Securities and Approved
Investments, Bank is authorized to utilize any pricing
information source used by Bank in the ordinary course of
business and Lender agrees that Bank shall not be liable for any
loss or damage suffered or incurred as a result of errors or
omissions of any such pricing information source.
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.
The Bank of New York Mellon Corporation ("BNYM") has
adopted an incentive compensation scheme designed (i) to
facilitate clients gaining access to and being provided with
explanations about the full range of products and services
offered by BNYM and its subsidiaries, including Bank and (ii) to
expand and develop client relationships. This programme may
lead to the payment of referral fees to employees of BNYM or its
subsidiaries, including Bank who may have been involved in a
referral that resulted in obtaining of products or services by
the Lender covered by this Agreement or which may be ancillary
or supplemental to such products or services. Any such referral
fees are funded solely out of fees and commissions paid by the
Lender under this Agreement or with respect to such ancillary or
supplemental products. Further details of the payment of
referral fees will be provided upon request or otherwise to the
extent required by applicable laws or regulations and only in
accordance with applicable laws, regulations and other legal
requirements and limitations.
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 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; Centralized
Functions. 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 Bank.
(b) The Bank of New York Mellon Corporation, corporate
parent of Bank, is a global financial organization that provides
services to clients through its affiliates and subsidiaries in
multiple jurisdictions (the "BNY Mellon Group"). The BNY Mellon
Group may centralize functions, including audit, accounting,
risk, legal, compliance, sales, administration, product
communication, relationship management, storage, compilation and
analysis of customer-related data, and other functions (the
"Centralized Functions") in one or more affiliates, subsidiaries
and third-party service providers. Solely in connection with
the Centralized Functions, (i) the Client consents to the
disclosure of, and authorizes Bank to disclose, information
regarding Client and/or Lender and its accounts ("Customer-
Related Data") to the BNY Mellon Group and to its third-party
service providers who are subject to confidentiality obligations
with respect to such information and (ii) Bank may store the
names and business addresses of Client's and/or Lender's
employees on the systems or in the records of the BNY Mellon
Group or its service providers. In addition, the BNY Mellon
Group may aggregate Customer-Related Data with other data
collected and/or calculated by the BNY Mellon Group, and the BNY
Mellon Group will own all such aggregated data, provided that
the BNY Mellon Group shall not distribute the aggregated data in
a format that identifies Customer-Related Data with the Client
and/or Lender. Bank, on behalf of itself and BNY Mellon Group,
hereby represents and warrants that each (i) has implemented and
maintains appropriate security measures to detect and prevent
identity theft as required by all applicable laws and
regulations and (ii) will treat as confidential any information
designated as confidential by the Client. The Client is
authorized to consent to the foregoing and confirms that the
disclosure to and storage by the BNY Mellon Group of such
information does not violate any relevant data protection
legislation. In addition, Bank may disclose Customer-Related
Data as required by law or at the request of any governmental or
regulatory authority.
11. Statements. Bank will at least monthly furnish Client
with statements relating to Loans hereunder.
12. Force Majeure. None of Bank, Client or the Lenders
shall 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 communication services; 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.
14. Not Acting as Municipal Advisor. With respect to the
entering into this Agreement, any rights and obligations of Bank
under this Agreement (including, without limitation, the
investment of Cash Collateral by Bank) and any information and
material related to the foregoing that is provided to Lender by
or on behalf of Bank, Lender understands and acknowledges that:
(a) Each of Bank, its officers, employees or agents (i)
are not acting as "municipal advisors" to Lender within the
meaning of Section 15B of the Securities Exchange Act of 1934,
as amended ("Section 15B"), (ii) do not owe a fiduciary duty to
Lender pursuant to Section 15B, and (iii) are acting for their
own interests; and
(b) This Agreement (including any amendments and related
agreements) and any such information or material neither
constitute a recommendation by Bank to Lender to undertake or
refrain from undertaking a particular action or course of action
nor constitute a recommendation that is particularized to the
Lender's specific needs, objectives or circumstances, and Lender
has discussed this Agreement and any such information and
material with internal or external advisors that Lender deems
appropriate before entering into this Agreement and acting on
such information or material.
ARTICLE VI
TERMINATION
(a) 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. Such termination may apply to specific Lenders
only or may apply to all Lenders and Client. After such notice is
given or received by Bank, with respect to the applicable Lenders,
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.
(b) This Agreement also shall terminate immediately in the
event that:
(i) Bank shall commence as debtor any case or
proceeding under any bankruptcy, insolvency, reorganization,
liquidation, dissolution or similar law, or seek the appointment
of a receiver, conservator, trustee, custodian or similar
official for the Bank or any substantial part of its property;
(ii) any such case or proceeding shall be commenced
against Bank or another shall seek such appointment, which
(A) is consented to or not contested within 15
days by Bank;
(B) results in the entry of an order for relief,
such an appointment, or the entry of an order having a similar
effect against Bank, or
(C) is not dismissed within 15 days ;
(iii) Bank makes a general assignment for the
benefit of creditors;
(iv) Bank admits in writing its inability to pay its
debts as they become due.
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. Client may enter
into other agreements whereby a third party is permitted to make
loans on behalf of funds not identified on Attachment 1 hereto.
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, Written
Instructions and/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 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Securities Lending Division, with a copy to
Client Service Center ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, 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 ______________________________________________, 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.
(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.
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.
13. The obligations of this instrument are not binding upon
any of the trustees or shareholders of Lender individually but are
binding solely upon the assets and property of the 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.
DBX ETF TRUST on behalf of
each of those Lenders
identified on Attachment I
hereto
By:
(Signature)
Name:
Title:
THE BANK OF NEW YORK MELLON
By:
(Signature)
Name:
Title:
[PAGE BREAK]
SCHEDULE I
to
SECURITIES LENDING AUTHORIZATION AGREEMENT
dated ________________ __, 2015
by and between
THE BANK OF NEW YORK MELLON, and DBX ETF TRUST (the "Agreement")
APPROVED INVESTMENTS
In accordance with the Agreement between the Lender and Bank, Cash
Collateral received by the Bank on behalf of the Lender shall be
held and maintained in a separately managed Cash Collateral
Account established and maintained by the Bank for the Lender (the
"Cash Collateral Account"), the assets of which shall be invested
and reinvested in the:
Daily Assets Fund Institutional (DAFXX)
Agreed to and Approved by Client
By: ___________________________
Title: ___________________________
Date: ___________________________
Agreed to and Approved by Bank
By: __________________________
Title: __________________________
Date: __________________________
[PAGE BREAK]
SCHEDULE II
to
SECURITIES LENDING AUTHORIZATION AGREEMENT
dated ________________ __, 2015
by and between
THE BANK OF NEW YORK MELLON, and DBX ETF TRUST, (the "Agreement")
Approved Borrowers
The following is the list of Borrowers in the Program
referred to in the Securities Lending Authorization Agreement
dated ________________, 2015, by and between THE BANK OF NEW YORK
MELLON and DBX ETF TRUST.
Domestic Broker/Dealers & Banks
1. ABN AMRO Securities (USA) LLC
2. Bank of New York Mellon ***
3. Barclays Capital, Inc. *
4. BMO Capital Markets Corp*
5. BNP Paribas Prime Brokerage Inc.
6. BNP Paribas Securities Corp *
7. BNY Mellon Capital Markets LLC ***
8. Cantor ▇▇▇▇▇▇▇▇▇▇ & Co. *
9. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc.
10. CIBC World Markets Corporation
11. Citadel Securities LLC
12. Citibank, N.A.
13. Citigroup Global Markets, Inc. *
14. Commerz Markets LLC
15. Credit Suisse Securities (USA) LLC *
16. CRT Capital Group LLC
17. Daiwa Capital Markets America, Inc. *
18. Deutsche Bank Securities, Inc. *
19. First Clearing, LLC
20. ▇▇▇▇▇▇▇, Sachs & Co. *
21. Guggenheim Securities LLC
22. HBK Global Securities LP
23. HSBC Securities (USA) Inc. *
24. Industrial and Commercial Bank of China
Financial Services LLC
25. ING Financial Markets LLC.
26. Itau BBA USA Securities Inc.
27. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC
28. ▇▇▇▇▇▇▇▇▇ LLC *
29. ▇.▇. ▇▇▇▇▇▇ Clearing Corp.
30. ▇.▇. ▇▇▇▇▇▇ Securities, Inc. *
31. KCG Americas LLC
32. Macquarie Capital USA Inc.
33. Maple Securities USA Inc.
34. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇,
Inc.*
35. Mitsubishi UFJ Securities (USA) Inc.
36. Mizuho Securities (USA) Inc. *
37. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., LLC *
38. National Bank of Canada Financial, Inc.
39. National Financial Services LLC
40. Natixis Securities Americas LLC
41. NewEdge USA, LLC
42. Nomura Securities International, Inc. *
43. Pershing LLC ***
44. ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc.
45. RBC Capital Markets LLC *
46. RBS Securities Corp. *
47. RCap Securities, Inc.
48. Scotia Capital (USA) Inc.
49. SG Americas Securities, LLC *
50. State of Wisconsin Investment Board
51. SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
52. TD Securities (USA) LLC *
53. UBS Securities LLC *
54. ▇▇▇▇▇ Fargo Bank, NA
55. ▇▇▇▇▇ Fargo Securities, LLC
International Brokers & Banks
56. Abbey National Treasury Services PLC
57. ABN AMRO Bank NV
58. Air Canada Pension Master Trust Fund
59. Bank of Montreal
60. Bank of Montreal Ireland PLC
61. The Bank of Nova Scotia
62. The Bank of Nova Scotia (Asia) Limited
63. The Bank of Tokyo Mitsubishi UFJ Ltd
64. Barclays Bank PLC
65. Barclays Capital Securities Ltd.
66. BMO Capital Markets Limited
67. BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.
68. BNP ▇▇▇▇▇▇▇
▇▇. BNP Paribas Arbitrage
70. Caisse De Depot Et Placement Du Quebec
71. Canadian Imperial Bank of Commerce
72. Canadian Medical Protective Association
73. Canada Pension Plan Investment Board
74. Casgrain & Company Limited
75. CIBC World Markets Inc.
76. Citic Securities International Capital
Management Ltd
77. Citigroup Global Markets Ltd
78. Commerzbank AG
79. Credit Agricole CIB
80. Credit Suisse Securities (Canada) Inc.
81. Credit Suisse Securities (Europe), Ltd.
82. Daiwa Capital Markets Europe Ltd.
83. Danske Bank A/S
84. Deutsche Bank, AG
85. Deutsche Bank Securities Limited
86. Fidelity Clearing Canada LLC
87. ▇▇▇▇▇▇▇ ▇▇▇▇▇ International
88. Healthcare of Ontario Pension Plan Trust Fund
89. HSBC Bank PLC
90. HSBC France
91. HSBC Securities (Canada) Inc.
92. ING Bank, N.V.
93. Jefferies International Ltd.
94. ▇.▇. ▇▇▇▇▇▇ Bank Dublin PLC
95. ▇.▇. ▇▇▇▇▇▇ Securities Australia Ltd
96. ▇.▇. ▇▇▇▇▇▇ Securities, PLC
97. KCG Europe Limited
98. Lloyds Bank Plc
99. Macquarie Bank Ltd.
100. Maple Securities Canada Limited
101. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Canada
102. ▇▇▇▇▇▇▇ ▇▇▇▇▇ International
103. Mitsubishi UFJ Securities International, PLC
104. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Canada Ltd
105. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International, PLC
106. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MUFG Securities Co., Ltd
107. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities Australia Ltd
108. National Australia Bank, Ltd
109. National Bank Financial Inc.
110. National Bank of Canada
111. Natixis
112. NBC Global Finance Ltd.
113. Nomura International PLC
114. Public Sector Pension Investment Board
115. RBC Dominion Securities Inc.
116. RBC Europe Limited
117. The Royal Bank of Scotland PLC
118. Scotia Bank (Ireland) Limited
119. Scotiabank Europe PLC
120. Scotia Capital Inc.
121. Skandinaviska Enskilda ▇▇▇▇▇▇ ▇▇
122. Societe Generale
123. Standard Chartered Bank
124. TD Securities Inc.
125. Toronto Dominion Bank
126. UBS AG
127. UBS Securities Australia Ltd
128. Unicredit Bank AG
* Denotes Primary US Government Securities Dealer
** Treated as single entity for credit & processing
purposes
*** Denotes borrower is an affiliate of The Bank of
New York Mellon
(Rev 02/28/15)
[PAGE BREAK]
SCHEDULE III
to
SECURITIES LENDING AUTHORIZATION AGREEMENT
dated ________________ __, 2015
by and between
THE BANK OF NEW YORK MELLON, and DBX ETF TRUST (the "Agreement")
In consideration for the securities lending services to be
provided by Bank hereunder, Bank shall be entitled to the
following:
Bank shall retain 7% 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 all Proceeds and earnings
from the investment and reinvestment of Cash Collateral
minus Rebate Fees paid by 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 Bank (or any Bank
Affiliate) may be entitled for services rendered for Client
and/or Lender under other agreements.
[PAGE BREAK]
ATTACHMENT 1
to
SECURITIES LENDING AUTHORIZATION AGREEMENT
dated ________________ __, 2015
by and between
THE BANK OF NEW YORK MELLON, and DBX ETF 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 __________
__, 2015, by and between THE BANK OF NEW YORK MELLON ("Bank") and
DBX ETF TRUST, as Client.
List of Lenders/Funds
Tax ID