Securities Lending Agreement - JPMCB New York - General - June 2018 Version 1

Exhibit (h)(9)

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 1

Table of Contents

1.		INTENTION OF THE PARTIES; DEFINITIONS			1
1.1		Intention of the Parties			1
1.2		Definitions; Interpretation			1
2.		THE SECURITIES LENDING SERVICES			9
2.1		Appointment; Authority			9
2.2		Loans			9
2.3		Borrowers			10
2.4		Receipt of Collateral; Collateral Substitution			11
2.5		Xxxx to Market Procedures			11
2.6		Investment of Cash Collateral			12
2.7		Distributions			13
2.8		Voting Rights			14
2.9		Sale of a Security on Loan			14
2.10		Recordkeeping; Access to X.X. Xxxxxx’x Records			15
2.11		Statements of Account			15
2.12		Notifications			16
2.13		Change Requests			16
3.		OBLIGATIONS OF X.X. XXXXXX IN THE CASE OF BORROWER DEFAULT			17
3.1		Default by Borrower with respect to Securities on Loan			17
3.2		Indemnification of Lender in Respect of Securities			17
3.3		Application of Collateral/Assignment of Rights			18
4.		INSTRUCTIONS			19
4.1		Acting on Instructions; Method of Instruction and Unclear Instructions			19
4.2		Verification and Security Procedures			19
4.3		Instructions; Contrary to Law/Market Practice			20
4.4		Cut-Off Times			20
4.5		Electronic Access and Cybersecurity			20
5.		FEES, EXPENSES AND OTHER AMOUNTS OWING TO X.X. XXXXXX			21
5.1		Fees and Expenses			21
5.2		Overdrafts			22
5.3		X.X. Xxxxxx’x Right Over Securities; Set-off			22
6.		ADDITIONAL PROVISIONS RELATING TO THE PARTIES			23
6.1		Representations of Lender and X.X. Xxxxxx			23
6.2		Lender to Provide Certain Information to X.X. Xxxxxx			24
6.3		Insurance			24
6.4		Confidentiality			24
6.5		Use of X.X. Xxxxxx’x Name			25

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 2

7.		WHEN X.X. XXXXXX IS LIABLE TO LENDER			26
7.1		Standard of Care; Liability			26
7.2		Force Majeure			26
7.3		X.X. Xxxxxx May Consult With Counsel			27
7.4		X.X. Xxxxxx Provides Diverse Financial Services and May Generate Profits as a Result			27
7.5		Responsibility for Certain Third Parties			28
8.		TAXATION			28
8.1		Tax Filings			28
8.2		Tax Treatment			29
9.		TERM AND TERMINATION			29
9.1		Termination			29
9.2		Other Grounds for Termination			29
9.3		Exit Procedure			30
10.		MISCELLANEOUS			30
10.1		Notifications			30
10.2		Successors and Assigns			30
10.3		Entire Agreement and Amendments			30
10.4		Governing Law and Jurisdiction			31
10.5		Severability; Waiver; and Survival			31
10.6		Counterparts			31
10.7		No Third Party Beneficiaries			31
10.8		Stay Legislation			32
10.9		Liability of the Trust and Each Lender			32

ANNEX 1		31
SCHEDULE 1 Securities Lending Investment Guidelines (Non-ERISA) - See Separate Attachment		33
SCHEDULE 2 Securities Lending Approved Borrowers		34
SCHEDULE 3 Securities Lending - Eligible Collateral		37
SCHEDULE 4 Securities Lending - Lending Accounts and Markets		40
SCHEDULE 5 Persons Authorized To Give Instructions		42
SCHEDULE 6A Form of Master Securities Lending Agreement (US Borrowers)		43
SCHEDULE 6B(i) Form of Master Securities Lending Agreement (non-US Borrowers)		44
SCHEDULE 6B(ii) Form of Master Securities Lending Agreement (non-US Borrowers)		45
SCHEDULE 7 Securities Lending - Cut-Off Times		46
SCHEDULE 8 Securities Lending - Electronic Access		47
SCHEDULE 9 Lending Restrictions		49

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 3

SECURITIES LENDING AGREEMENT

This Agreement, dated December 7, 2018, is between JPMORGAN CHASE BANK, NATIONAL ASSOCIATION (“X.X. Xxxxxx”), with a place of business at 000 Xxxxxxx Xxxxxx, 00^xx Xxxxx, Xxx Xxxx, XX 00000; and PROSHARES TRUST (the “Trust”) on behalf of each series listed on Annex 1 to this Agreement, severally and not jointly (each such series, a “Lender”) with a place of business at 0000 Xxxxxxxxx Xxxxxx, Xxxxx 0000X, Xxxxxxxx, XX 00000

1. INTENTION OF THE PARTIES; DEFINITIONS

1.1 Intention of the Parties

This Agreement sets out the terms on which X.X. Xxxxxx will provide securities lending services to Lender. X.X. Xxxxxx will be responsible for the performance of only those duties expressly set forth in this Agreement. The terms and conditions of this Agreement are applicable only to the services which are specified in this Agreement.

1.2 Definitions; Interpretation

(a) Definitions

As used herein, the following terms have the meanings hereinafter stated.

“Affiliate” with respect to a party means an entity controlling, controlled by, or under common control with, that party.

“Allocation Factors” has the meaning set forth in Section 2.2(b) of this Agreement.

“Applicable Law” means any applicable statute, treaty, rule, regulation or law (including common law) and any applicable decree, injunction, judgment, order, formal interpretation or ruling issued by a court or governmental entity.

“Authorized Investment” means any type of instrument, security, participation or other property in which Cash Collateral may be invested or reinvested, pursuant to Section 2.6 of this Agreement and the Investment Guidelines.

“Authorized Person” means any person who has been designated by written notice from Lender in the form as provided by X.X. Xxxxxx to act on behalf of Lender under this Agreement, any person who has received a User Code from Lender, or any person authorized by Lender to receive a User Code from X.X. Xxxxxx. Such persons will continue to be Authorized Persons until such time as X.X. Xxxxxx receives and has had reasonable time to act upon Instructions from Lender (or its agent) that any such person is no longer an Authorized Person.

“AutoCredit” has the meaning set forth in Section 2.7(a) of this Agreement.

“Borrower” means an entity listed on Schedule 2 to this Agreement other than an entity which X.X. Xxxxxx shall have been instructed to delete from such list in accordance with Instructions and as such Schedule may be amended in accordance with Section 2.3 of this Agreement.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 4

“Business Day” shall have the meaning assigned in the applicable MSLA, including any applicable Addendum or Exhibit to the applicable MSLA and shall, include, as applicable, a New York Business Day and a Foreign Business Day as defined in the applicable MSLA.

“Cash Collateral” means those currencies permitted under Schedule 3 to this Agreement to be accepted as Cash Collateral as may be pledged by a Borrower in connection with a particular Loan.

“Cash Distributions” has the meaning set forth in Section 2.7(a) of this Agreement.

“Change” has the meaning set forth in Section 2.13 of this Agreement.

“Change Request” has the meaning set forth in Section 2.13 of this Agreement.

“Collateral” means the types of collateral acceptable to Lender as set forth in Schedule 3 to this Agreement, together with Cash Collateral.

“Collateral Account” means, as the case may be, an account or accounts maintained by X.X. Xxxxxx with its global custody business, with any Securities Depository or with any Tri-party Institution, and designated as a Collateral Account for the purpose of holding Collateral, Authorized Investments, or proceeds of any of them (as the case may be) in connection with Loans under this Agreement.

“Collateral Requirement” with respect to a given Security shall be an amount equal to the then applicable percentage of the Market Value of the applicable Security as set forth in Appendix A to Schedule 3 to this Agreement, as that Appendix may be amended by X.X. Xxxxxx from time to time on notice to Lender; provided however, X.X. Xxxxxx shall obtain Lender’s prior written consent if revisions to the Collateral Requirement would result in the aggregate amount of Collateral for all Loans to a Borrower being less than the then applicable Collateral Requirement of the Loans.

“Confidential Information” means and includes all nonpublic information concerning Lender, the Lending Accounts or the Collateral Accounts which X.X. Xxxxxx receives or becomes aware of in the course of providing services under this Agreement. Nevertheless, the term Confidential Information does not include (i) information that is or becomes available to the general public by means other than X.X. Xxxxxx’x breach of the terms of this Agreement, (ii) information that X.X. Xxxxxx develops independently without using the Lender’s confidential information, (iii) information that X.X. Xxxxxx obtains on a nonconfidential basis from a third party, unless X.X. Xxxxxx knew or should have known that such third party owed an obligation of confidence to the Lender with respect to that information, or (iv) information that the Lender has designated as non-confidential or consented in writing to be disclosed.

“Custody Agreement” means the domestic custody agreement dated as of May 25, 2006, and the global custody rider thereto dated as of January 12, 2012, between X.X. Xxxxxx and Lender, which provides, inter alia, for the safekeeping of Securities received by X.X. Xxxxxx from time to time on behalf of Lender, as that agreement may be amended from time to time.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 5

“Cut-off Time” has the meaning set forth in Section 4.4 of this Agreement.

“Distributions” means all interest, dividends and other distributions (including, but not limited to, payments made by the depositary in connection with American Depositary Receipts and Global Depositary Receipts) made by the issuer with respect to Securities subject to Loans.

“Dollars” means U.S. dollars.

“Event of Default” has the meaning set forth in the applicable MSLA.

“GMSLA” means the global master securities lending agreement (2010).

“Instruction” means an instruction, whether or not in fact authorized, that has been verified in accordance with the Security Procedure or, if no Security Procedure is applicable, which X.X. Xxxxxx believes in good faith to have been given by an Authorized Person in the manner specified next to their name in the relevant Schedule.

“Investment Guidelines” has the meaning set forth in Section 2.6(a) of this Agreement.

“X.X. Xxxxxx Indemnitees” means X.X. Xxxxxx and its nominees, directors, officers, employees and agents.

“Lending Account” means each of the Securities Accounts set forth in Schedule 4 to this Agreement, as that Schedule may be modified from time to time by agreement of the parties.

“Liabilities” means any liabilities, losses, claims, costs, damages, penalties, fines, obligations, taxes (other than taxes based solely on a party’s own income) or reasonable and actual expenses of any kind whatsoever (including, without limitation, reasonable and actual attorneys’, accountants’, consultants’ and experts’ fees and disbursements reasonably incurred) and outstanding from time to time.

“Loan” means a loan of Securities under this Agreement and under the applicable MSLA.

“Loan Fee” means the amount payable by a Borrower to X.X. Xxxxxx under the applicable MSLA in connection with Loans collateralized by Collateral other than Cash Collateral.

“Market Value” means the value reasonably determined by X.X. Xxxxxx in accordance with the applicable MSLA, including the computation of Dollar equivalents where Securities on Loan and/or Collateral (and proceeds of Collateral) are denominated in a currency other than Dollars; and in the case of fixed income Securities, including any accrued but unpaid interest thereon. In the case of Cash Collateral, “Market Value” means the value of the cash delivered by Borrower. “Market Value” shall be determined as of the close of trading on the preceding Business Day.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 6

“MSLA” means a master securities lending agreement or securities borrowing agreement between X.X. Xxxxxx and a Borrower, under which X.X. Xxxxxx lends Securities on behalf of its customers (including Lender) from time to time. A copy of X.X. Xxxxxx’x standard forms of MSLA, including (as applicable) the international addendum to the MSLA, are annexed to this Agreement (i) as Schedule 6A in the case of Borrowers located in the United States, and (ii) as Schedule 6B in the case of Borrowers located outside the United States. (The location of each Borrower is indicated in Schedule 2.)

“Non-cash Distributions” has the meaning set forth in Section 2.7(b) of this Agreement.

“OSLA” means the overseas securities lending agreement (December 1995).

“Rebate” means the amount payable by X.X. Xxxxxx on behalf of Lender to a Borrower (or, in the case of a negative rebate, the amount payable by Borrower to X.X. Xxxxxx on behalf of Lender) in connection with Loans collateralized by Cash Collateral, which shall be a percentage of the Cash Collateral as agreed by Borrower and X.X. Xxxxxx.

“Return Date” has the meaning set forth in in Section 3.2(a) of this Agreement.

“Securities” means shares, stocks, debentures, bonds, notes or other like obligations, whether issued in certificated or uncertificated form, and any certificates, receipts, warrants or other instruments representing rights to receive, purchase or subscribe for the same that are commonly traded or dealt in on securities exchanges or financial markets.

“Securities Account” means each of the securities accounts established and maintained by X.X. Xxxxxx on behalf of Lender under the Custody Agreement.

“Securities Depository” means any securities depository, clearing corporation, dematerialized book entry system or similar system for the central handling of Securities.

“Security Procedure” means the applicable security procedure to be followed by Lender (and its Authorized Persons) and/or by X.X. Xxxxxx, so as to enable X.X. Xxxxxx to verify that an instruction is authorized. The applicable Security Procedure for different types of instructions may be set forth in service level documentation in effect from time to time with respect to the services set forth in the Custody Agreement, or in separate documentation, and may be updated by X.X. Xxxxxx from time to time upon prior written notice to the Lender. A Security Procedure may, without limitation, involve the use of User Codes, dual-factor authentication, and telephone call backs, or third party utilities. For the avoidance of doubt, a SWIFT message issued in the name of Lender through any third party utility that X.X. Xxxxxx has approved as a utility through which Instructions may be provided hereunder, shall be deemed to have been verified through a Security Procedure.

“Term Loan” has the meaning set forth in Section 2.2(c) of this Agreement.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 7

“Tri-party Agreement” means an agreement among X.X. Xxxxxx, a financial institution acting as tri-party custodian, and a particular Borrower providing, among other things, for the holding of Collateral in a Collateral Account at the financial institution in X.X. Xxxxxx’x name on behalf of X.X. Xxxxxx’x lending customers and for the substitution of Collateral.

“Tri-party Institution” means a financial institution (which may be X.X. Xxxxxx acting in a separate capacity) with which X.X. Xxxxxx shall have entered a Tri-party Agreement.

“User Code” means a password digital certificate, identifier (including biometric identifier), security device, algorithm, encryption or other similar procedure used by the Lender or an Authorized Person to access X.X. Xxxxxx’x systems, applications or products or to issue Instructions to X.X. Xxxxxx.

(b) Interpretation

(i) Headings are for convenience of reference only and shall not in any way form part of or affect the construction or interpretation of any provision of this Agreement.

(ii) Unless otherwise expressly stated to the contrary herein, references to Sections are to sections of this Agreement and references to Paragraphs are to paragraphs of the Sections in which they appear.

(iii) Unless the context requires otherwise, references in this Agreement to “persons” shall include legal as well as natural entities; references importing the singular shall include the plural (and vice versa). Use of the term “including” shall be deemed to mean “including but not limited” to, and references to appendices and numbered sections shall be to such addenda and provisions herein.

(iv) Unless the context requires otherwise, any reference to a statute or a statutory provision shall include such statute or provision as from time to time modified to the extent such modification applies to any service provided hereunder. Any reference to a statute or a statutory provision shall also include any subordinate legislation made from time to time under that statute or provision.

(v) The Schedules, Appendices and Annexes to the Agreement are incorporated herein by reference and form part of the Agreement and shall have the same force and effect as if expressly set out in the body of the Agreement. If and to the extent that there is an inconsistency between the terms of the body of the Agreement and its Schedules, Appendices and Annexes, the terms of the body of the Agreement shall prevail unless expressly stated otherwise.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 8

2. THE SECURITIES LENDING SERVICES

2.1 Appointment; Authority

(a) Lender hereby appoints X.X. Xxxxxx as its agent to lend Securities in each of the Lending Accounts on Lender’s behalf to Borrowers from time to time in accordance with the terms of this Agreement and on such terms and conditions and at such times as X.X. Xxxxxx shall determine. X.X. Xxxxxx hereby accepts appointment as such agent.

(b) Lender hereby authorizes and empowers X.X. Xxxxxx to execute in Lender’s name and on its behalf and at its risk all agreements and documents as may be necessary to carry out any of the powers herein granted to X.X. Xxxxxx. In this regard, Lender hereby acknowledges receipt of the forms of MSLA and authorizes X.X. Xxxxxx to lend Securities in the Lending Accounts to Borrowers under agreements substantially in the forms of the MSLA; it being understood and agreed, however, that X.X. Xxxxxx shall provide prior written notice to Lender of any material change to the MSLA entered into with any Borrower. Lender acknowledges that as of April 2019, MSLAs in the form annexed to Schedule 6B(i) (the OSLA), will no longer receive the benefit of the ISLA legal opinions relating to the enforceability of netting provisions. MSLAs in the form annexed to Schedule 6B(ii) (the GMSLA) will continue to receive the benefit of such legal opinions. Lender hereby consents to the existing OSLAs being replaced with GMSLAs, and upon completion of the re-papering process, X.X. Xxxxxx to lend Securities in the Lending Accounts to non-U.S. Borrowers under agreements substantially in the form of the GMSLA. X.X. Xxxxxx may exercise all rights and powers provided under any MSLA as may be incidental to that MSLA.

2.2 Loans

(a) From time to time, X.X. Xxxxxx may lend to Borrowers Securities held in the Lending Accounts and shall deliver such Securities against receipt of Collateral in accordance with the applicable MSLA. All Securities of Lender held by X.X. Xxxxxx that are issued, settled or traded in the markets listed on Schedule 4 to this Agreement may be lent to Borrowers from time to time without the consent of any Authorized Person. All Loans shall be made on a fully disclosed basis. X.X. Xxxxxx may suspend lending activity in one or more markets from time to time if it determines that lending in those markets is impracticable or uneconomical.

(b) X.X. Xxxxxx shall seek to assure that Lender receives a fair and reasonable allocation of lending opportunities vis-à-vis other lenders, taking into account the demand for and availability of Securities, types of Collateral, eligibility of Borrowers, Borrower’s requested Rebate rate, limitations on investments of Cash Collateral, tax treatment, liquidity and other similar commercial factors (the “Allocation Factors”). The Allocation Factors may also include consideration of the cost to X.X. Xxxxxx in the allocation of the aforementioned lending opportunities, including, but not limited to, the capital cost of indemnification by X.X. Xxxxxx. The Allocation Factors may improve or reduce such allocation opportunities and, in some instances, may result in non-participation in a loan opportunity at all. The Allocation Factors are the basis for determining which clients, on a case by case basis, will be eligible for an objective allocation of a loan opportunity. X.X. Xxxxxx is under no obligation to enter into a transaction if the cost to X.X. Xxxxxx will exceed its revenue for that given transaction, however, X.X. Xxxxxx reserves the right to enter into any such transaction based on certain factors that have intrinsic value to X.X. Xxxxxx.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 9

(c) Loans shall generally be terminable on demand by Lender pursuant to the terms of the applicable MSLA. With the prior written approval of Lender, however, Loans may be made on the basis of a specified termination date (each a “Term Loan”), with or without providing for the right of Lender to terminate or substitute equivalent Securities.

(d) X.X. Xxxxxx shall terminate any Loan of Securities to a Borrower promptly after: (i) receipt by X.X. Xxxxxx of a notice of termination of the respective MSLA by the Borrower; (ii) receipt by X.X. Xxxxxx of Instructions directing X.X. Xxxxxx to terminate a Loan, provided that the Borrower is obligated to return each Security by no later than the date which is the standard settlement date for trades of such Security entered into on the date such Instruction is received by X.X. Xxxxxx; (iii) receipt by X.X. Xxxxxx of Instructions instructing X.X. Xxxxxx to delete from Schedule 2 to this Agreement the Borrower to which such Loan was made; (iv) receipt by X.X. Xxxxxx of Instructions advising that the Security subject to a Loan is no longer subject to the representations contained in Section 6.1 of this Agreement; (v) receipt by X.X. Xxxxxx of notice advising that an Event of Default has occurred and is continuing beyond any grace period that may be afforded by X.X. Xxxxxx; (vi) X.X. Xxxxxx elects, in its sole discretion, to terminate a Loan other than a Term Loan; or (vii) termination of this Agreement with respect to one or more Lender(s). Termination of a Term Loan prior to its anticipated termination date by either Lender or Borrower may result in the terminating party having to pay the non-terminating party damages based on the cost of obtaining a replacement loan. In the event of Borrower’s failure to return the applicable Securities upon termination of a Loan, X.X. Xxxxxx shall take the steps specified in Section 3.1 of this Agreement.

(e) Lender shall not engage in any security lending activity with regard to Securities held in any Lending Account during the term of this Agreement, except for Loans made by X.X. Xxxxxx as lending agent under this Agreement.

(f) For the avoidance of doubt, the required amount of Collateral shall be received from a Borrower by X.X. Xxxxxx prior to or contemporaneous with delivery by X.X. Xxxxxx of corresponding Securities being loaned by Lender. In addition, where settlement is not delivery versus payment, X.X. Xxxxxx shall confirm settlement of the return of loaned Securities prior to return of Collateral to the Borrower.

2.3 Borrowers

(a) Securities may be lent to any Borrower listed in Schedule 2 to this Agreement, in X.X. Xxxxxx’x sole discretion. Schedule 2 to this Agreement may be updated from time to time upon written notice by X.X. Xxxxxx to add new Borrowers and to

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 10

delete entities that have ceased to be potential Borrowers. If Lender notifies X.X. Xxxxxx in writing within five business days from the date of any such notice that it objects to a potential Borrower, no Loans of Securities shall be made to such potential Borrower. If Lender does not so object within such five business day period, each potential Borrower notified to Lender by X.X. Xxxxxx shall be deemed acceptable to Lender. Lender may at any time provide Instructions to X.X. Xxxxxx to delete a Borrower from Schedule 2 to this Agreement. Promptly following receipt of those Instructions X.X. Xxxxxx will cease making Loans to that Borrower and promptly take the steps set forth in Section 2.2(d) of this Agreement. X.X. Xxxxxx shall have the right to decline to make any Loans to any Borrower and to discontinue lending to any Borrower in its sole discretion and without notice to Lender.

(b) X.X. Xxxxxx may assume (unless its personnel directly responsible for the performance of the services under this Agreement have actual knowledge to the contrary) that any representations made by a Borrower in connection with any Loan are true, that no event which is or may become an Event of Default has occurred and that Borrower is in compliance with its obligations under the applicable MSLA.

(c) X.X. Xxxxxx shall have no responsibility for the accuracy or completeness of any information supplied by any Borrower.

2.4 Receipt of Collateral; Collateral Substitution

(a) For each Loan, X.X. Xxxxxx or a Tri-party Institution shall receive and hold all Collateral required by the applicable MSLA in a Collateral Account. A given Loan may be collateralized by more than one type of Collateral. X.X. Xxxxxx shall credit, or where applicable shall have a Tri-party Institution credit, all Collateral, Cash Collateral investments and proceeds to a Collateral Account and X.X. Xxxxxx shall xxxx its books and records to identify Lender’s interest therein. In this regard, X.X. Xxxxxx shall segregate assets held in each Collateral Account maintained from X.X. Xxxxxx’x proprietary assets.

(b) X.X. Xxxxxx shall accept substitutions of Collateral in accordance with the applicable MSLA or Tri-party Agreement, and shall credit, or where applicable shall have a Tri-party Institution credit, all such substitutions to a Collateral Account.

2.5 Xxxx to Market Procedures

(a) X.X. Xxxxxx shall require initial Collateral from Borrower for a Loan in an amount determined by applying the then applicable Collateral Requirement to the Market Value of the Security that is the subject of the Loan.

(b) X.X. Xxxxxx shall calculate the Market Value of the Collateral on each Business Day. If the Market Value of the Collateral held by X.X. Xxxxxx on behalf of Lender for a Loan on any Business Day is less than the Collateral Requirement set forth on Appendix A to Schedule 3 to this Agreement, X.X. Xxxxxx shall demand on behalf of Lender that the applicable Borrower deliver additional Collateral in accordance with the applicable MSLA.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 11

(c) X.X. Xxxxxx is authorized to return excess Collateral to the Borrower upon demand, in accordance with the terms of the applicable MSLA.

(d) X.X. Xxxxxx may modify the Collateral procedures set forth on Appendix A to Schedule 3 to this Agreement from time to time in order to increase the then applicable Collateral Requirement of Loans to a given Borrower based on general market conditions (including volatility of Securities on Loan and of Securities Collateral), the Market Value of Securities on Loan to a given Borrower, and in accordance with general market practice and regulatory requirements; provided however, X.X. Xxxxxx shall obtain Lender’s prior written consent if revisions to the Collateral Requirement would result in the aggregate amount of Collateral for all Loans to a Borrower being less than the then applicable Collateral Requirement of the Loans. X.X. Xxxxxx shall promptly notify Lender of material revisions to the Collateral Requirement and the foregoing procedures.

2.6 Investment of Cash Collateral

(a) X.X. Xxxxxx is hereby authorized to invest and (subject to Section 2.6(c)) reinvest Cash Collateral in accordance with the investment guidelines set forth in Schedule 1 to this Agreement (the “Investment Guidelines”). The Investment Guidelines may be amended from time to time by written agreement of the parties. Authorized Investments are not guaranteed by X.X. Xxxxxx, and involve risk, including possible loss of principal. Lender assumes all risk of loss resulting from an Authorized Investment. X.X. Xxxxxx is authorized to buy or sell Cash Collateral investments through bulk trades in which its other customers participate. Cash Collateral and additions to Cash Collateral received after the market closes shall not be invested until the next Business Day.

(b) X.X. Xxxxxx may from time to time advance to Lender its share of accrued earnings from Cash Collateral. By the same token, except as may be expressly set forth in the Investment Guidelines, earnings received from Cash Collateral shall not be invested on behalf of Lender pending distribution under this Agreement (e.g., as Rebates to Borrowers and as lending income under Section 5.1 of this Agreement) and, therefore, no income shall be paid thereon to Lender. X.X. Xxxxxx anticipates earning interest on such earnings pending such distribution in an amount approximately equal to the fed funds rate in effect from time to time.

(c) X.X. Xxxxxx may, in its sole discretion, liquidate any Cash Collateral investment and credit the net proceeds to the Lender’s cash account.

(d) A “Cash Collateral Deficiency” occurs if (i) a loss is realized on a Cash Collateral investment or (ii) X.X. Xxxxxx determines that a Cash Collateral investment either is unlikely to be redeemed in accordance with its terms (as in effect at the time such Cash Collateral investment was acquired) or will need to be sold at a loss in order to raise cash to return to a Borrower upon the present or future maturity of a

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 12

Loan or (iii) X.X. Xxxxxx otherwise reasonably requires the replenishment of Cash Collateral. If X.X. Xxxxxx believes that a Cash Collateral Deficiency has occurred, X.X. Xxxxxx will notify Lender of such Cash Collateral Deficiency. If the X.X. Xxxxxx and Lender agree that there is in fact a Cash Collateral Deficiency in the Lender’s account, X.X. Xxxxxx may require Lender to transfer sufficient cash or other acceptable assets to the Lender’s account at X.X. Xxxxxx in the amount of such agreed Cash Collateral Deficiency. Lender shall promptly comply with any such request.

2.7 Distributions

(a) X.X. Xxxxxx will monitor information publicly available in the applicable market about forthcoming income payments on Securities on Loan. X.X. Xxxxxx shall credit Lender’s cash account on the anticipated payment date with the amount of all Cash Distributions (but for purposes of this Section 2.7(a), the term “Cash Distributions” shall not include any principal payment, whether paid upon the maturity of any debt Security or prior to its maturity, which shall be paid in accordance with the terms of the Custody Agreement), net of any taxes that are withheld by X.X. Xxxxxx or any third party (such service hereinafter defined as “AutoCredit”) with respect to Securities on Loan over their record date that Lender would have received under the Custody Agreement had such Securities not been on Loan over record date. AutoCredit is limited to those Securities and/or markets as to which X.X. Xxxxxx customarily offers an AutoCredit service. Upon request, X.X. Xxxxxx shall provide Lender with a list of AutoCredit eligible markets. X.X. Xxxxxx may add markets to or remove markets from the list of AutoCredit markets upon prior written notice to Lender that is reasonable in the circumstances. X.X. Xxxxxx reserves the right to restrict in good faith the availability of AutoCredit for credit or operational reasons. Lender shall promptly return any amount credited to Lender’s cash account upon written notification from X.X. Xxxxxx that: (i) such amount has not been paid by the issuer or the paying agent of the Securities (as applicable) in the ordinary course of business or (ii) such amount was incorrectly credited. If Lender does not promptly return any amount upon such notification, X.X. Xxxxxx shall be entitled, upon written notification to Lender identifying the amount, to reverse the applicable credit by debiting Lender’s cash account for the amount previously credited. When the AutoCredit service is not available, Cash Distributions, net of any taxes withheld by X.X. Xxxxxx or any third party, will be credited only after actual receipt and reconciliation by X.X. Xxxxxx.

(b) The following procedures shall apply to Distributions which are not Cash Distributions (“Non-cash Distributions”):

(i) Any Non-cash Distribution which is in the nature of a stock split or a stock dividend shall at the option of X.X. Xxxxxx: (A) be added to the existing Loan to which that Distribution relates as of the date that Non-cash Distribution is payable and shall be subject to the provisions of this Agreement and the applicable MSLA ; or (B) be delivered by Borrower to X.X. Xxxxxx, and X.X. Xxxxxx shall credit that Non-cash Distribution to the applicable Lending Account.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 13

(ii) Any Non-cash Distribution which is in the nature of warrants or rights to purchase shares made with respect to any Securities on Loan shall be deemed to be a new Loan made by Lender to Borrower (and shall be considered to constitute Securities on Loan) as of the date that Non-cash Distribution is payable and shall be subject to the provisions of this Agreement; provided that Lender may give X.X. Xxxxxx Instructions, prior to the applicable Cut-off Time directing it to request that Borrower deliver that Non-cash Distribution to X.X. Xxxxxx under the applicable MSLA, in which case X.X. Xxxxxx shall credit that Non-cash Distribution to the applicable Lending Account. If Lender wishes to exercise any such warrants or rights while they are on Loan, Lender shall instruct X.X. Xxxxxx prior to the applicable Cut-off Time to direct the Borrower to deliver the applicable Security or other property to the applicable Lending Account in exchange for the price specified in the warrant or right.

(iii) If Lender requests that X.X. Xxxxxx instruct Borrower to deliver a Non- cash Distribution on its payable date, and Borrower fails so to deliver the Non-cash Distribution on such date and any reasonable and customary grace period has expired, X.X. Xxxxxx, at its option, but subject to Section 3.2(b) of this Agreement, shall credit such Non-cash Distribution to the applicable Lending Account, or credit to Lender’s cash account an amount equivalent to the Market Value of such Non-cash Distribution as of the close of business on the day prior to the credit date. In addition, the assignment and subrogation provisions and corresponding rights and obligations set forth in Section 3.3 of this Agreement shall apply.

2.8 Voting Rights

During the term of any Loan, X.X. Xxxxxx shall permit the Securities on Loan to be transferred into the name of Borrower. Securities on Loan shall not ordinarily be available to Lender for voting while they are on Loan on the applicable Record Date. Lender shall be entitled to vote proxies with respect to Securities that are eligible for Loan (but not actually on Loan) as of the applicable record date for those Securities, except in those markets where it is not practical or permissible to do so.

2.9 Sale of a Security on Loan

Lender shall advise X.X. Xxxxxx of the sale of Securities on Loan no later than the applicable Cut-off Time and Lender shall bear the risk of any Liabilities attributable to its failure to provide notice prior to the applicable Cut-off Time. X.X. Xxxxxx shall promptly give the Borrower notice of termination of the applicable Loan (other than a Term Loan). If the Borrower fails to return any loaned Securities in a timely fashion, X.X. Xxxxxx shall promptly take action as provided in Section 3.1 of this Agreement. Lender acknowledges, however, that in the case of a Borrower’s failure to return Securities where some, but not all, of the Securities being sold are subject to the applicable Loan, neither Borrower nor X.X. Xxxxxx will be liable for any Liability associated with the failure of the sale of securities because partial settlement of the sale was not permitted or Lender or its agent withheld any consent necessary for a partial settlement.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 14

2.10 Recordkeeping; Access to X.X. Xxxxxx’x Records

(a) X.X. Xxxxxx shall establish and maintain those records as are reasonably necessary to account for Loans that are made, Collateral and the income derived from the Loans. Each party shall comply with reasonable requests of the other party for information necessary to the requester’s performance of its duties under this Agreement.

(b) X.X. Xxxxxx will, upon reasonable written notice, allow Lender (and/or Lender’s auditors and independent public accountants in connection with their examination of books and records) reasonable access during normal working hours to the records of X.X. Xxxxxx relating to Loans, Collateral and the services provided under this Agreement.

(c) X.X. Xxxxxx may impose reasonable restrictions on the number of individuals allowed access, the frequency and length of the access, and the scope of the records made available.

(d) X.X. Xxxxxx shall maintain and preserve such records relating to its activities under this Agreement as reasonably requested by Lender for purposes of Lender’s compliance with Rules 31a-1 and 31a-2 under the Investment Company Act of 1940.

2.11 Statements of Account

(a) X.X. Xxxxxx shall provide Lender with periodic statements (as agreed by the parties from time to time) or electronic access to account information (“Information”) that will enable Lender to generate or receive reports and statements describing the Loans made, the investments made with Cash Collateral, and the income derived from Loans, during the period covered by the statement. All prices included in such statements shall either be based on amortized cost or be indicative fair market value as reported by third party vendors. Lender will review its statement of account and give X.X. Xxxxxx written notice of (i) any suspected error or omission or (ii) Lender’s inability to access any such Information. Lender will provide X.X. Xxxxxx such notice within a reasonable time after (x) Information is made available to Lender or (y) Lender discovers that it is unable to access Information, as the case may be.

(b) Lender acknowledges that Information available to it electronically with respect to transactions posted after the close of the prior business day may not be accurate due to mis-postings, delays in updating account records, and other causes. X.X. Xxxxxx will not be liable for any Liabilities arising out of any such Information accessed electronically that is subsequently updated or corrected by the close of business on the first business day after the original transaction was posted.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 15

2.12 Notifications

Lender agrees (a) to access statements and information concerning the services provided under this Agreement through X.X. Xxxxxx’x website and (b) to electronic delivery of any documents from X.X. Xxxxxx, including, but not limited to, notices, statements, confirmations, and other communications as required by applicable regulations with respect to X.X. Xxxxxx’x securities lending program. X.X. Xxxxxx may make any notification required under this Agreement, other than notifications described in Section 9 and Section 10.1 of this Agreement, by posting it on the website or via e-mail.

2.13 Change Requests

(a) If either party wishes to propose any amendment or modification to, or variation of, the services under this Agreement (including the scope or details of the services) (a “Change”) then it shall notify the other party of that fact by sending a request (a “Change Request”) to the party, specifying in as much detail as is reasonably practicable the nature of the Change.

(b) Promptly following the receipt of a Change Request the parties shall agree whether to implement the Change Request, whether implementation of the Change Request should result in a modification of the fees contemplated by Section 5.1 of this Agreement, and the basis upon which X.X. Xxxxxx will be compensated for implementing the Change Request.

(c) If a change to Applicable Law requires a Change, the parties shall follow the processes set forth in this Section to initiate a Change Request. If the change in Applicable Law results in a Change, or an increase in X.X. Xxxxxx’x costs or risk associated with provision of its services contemplated by this Agreement, the parties shall mutually agree what, if any, modifications in the fees contemplated by Section 5.1 of this Agreement should result. X.X. Xxxxxx shall bear its own costs with respect to implementing a Change Request based upon a change in Applicable Law except that:

(i) X.X. Xxxxxx shall be entitled to charge the Lender for any changes to software that has been developed or customized at the Lender’s request; provided that such charges and changes have been pre- approved by Lender; and

(ii) X.X. Xxxxxx shall be entitled to charge the Lender for any changes required as a result of the change in Applicable Law affecting the Lender in a materially different way than it affects X.X. Xxxxxx’x other lenders, or which the Lender wishes X.X. Xxxxxx to implement in a way different from what X.X. Xxxxxx reasonably intends to implement for other lenders; provided that such charges and changes have been pre- approved by Lender.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 16

3. OBLIGATIONS OF X.X. XXXXXX IN THE CASE OF BORROWER DEFAULT

3.1 Default by Borrower with respect to Securities on Loan

If any Borrower fails to return any Securities on Loan when due under the applicable MSLA, X.X. Xxxxxx shall take prompt action as appropriate in accordance with general market practice and X.X. Xxxxxx’x reasonable judgment, including, but not necessarily limited to, claiming compensation from that Borrower on behalf of Lender in the event a trade executed by Lender fails on account of that Borrower’s failure to have returned Securities on Loan in a timely manner or, where X.X. Xxxxxx deems it necessary, other action as may be permitted by the applicable MSLA (including but not limited to collecting any penalties or fines).

3.2 Indemnification of Lender in Respect of Securities

(a) In addition to the actions described in Section 3.1 and after the expiration of any reasonable and customary grace period except in cases relating to the solvency of a Borrower, if any Borrower with respect to any Loan effected under this Agreement fails to return any Securities on Loan when due under the applicable MSLA which is the date an Event of Default shall have occurred under the applicable MSLA (the “Return Date”), then X.X. Xxxxxx shall, as soon as practicable, liquidate the Collateral on behalf of the Lender pursuant to the Lender’s rights under the applicable MSLA and implement the following steps to ensure that the Lender is returned its Securities or the economic value thereof:

(i) X.X. Xxxxxx shall, as soon as practicable, purchase replacement Securities of the same issue, type, class and series and deposit such Securities to the applicable Lending Account. X.X. Xxxxxx shall effect such purchase (A) on the Lender’s behalf, by applying the proceeds from the liquidation of Collateral and any Cash Collateral to the settlement of such purchase and (B) at its own expense, only to the extent the proceeds from the liquidation of Collateral and the Cash Collateral are insufficient or unavailable to settle such purchase of replacement Securities;

(ii) X.X. Xxxxxx may, to the extent that X.X. Xxxxxx is unable to successfully place an order to purchase replacement Securities after making an effort in a reasonable manner to do so for two Business Days, credit the Lender’s cash account in Dollars with an amount equal to the Market Value of the unreplaced Securities as of the Return Date. X.X. Xxxxxx may effect such crediting: (A) by transfer of any remaining proceeds from the liquidation of Collateral and any Cash Collateral, or (B) at its own expense, to the extent the remaining proceeds from the liquidation of Collateral and Cash Collateral are less than the Market Value of the unreplaced Securities as of the Return Date.

(b) Notwithstanding any other provision of this Section 3.2, X.X. Xxxxxx’x obligation to, at its own expense, credit Lender’s cash account with cash or the Lending Account with replacement Securities shall be reduced by an amount equal to the extent of any shortfall in the Collateral which is attributable to one or more of the following:

(i) a decrease in the market value of Authorized Investments;

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 17

(ii) the act or omission or insolvency of any Securities Depository or Tri-party Institution (other than in the case of insolvency of X.X. Xxxxxx or any of its Affiliates); or

(iii) X.X. Xxxxxx’x reliance on incorrect prices of the lent Securities or Collateral provided by a pricing vendor as described in Section 7.5 of this Agreement, provided, however, that X.X. Xxxxxx shall have met its standard of care as described in Section 7.1(a) with respect to reviewing the reasonableness of any such price.

3.3 Application of Collateral/Assignment of Rights

(a) In the case of an Event of Default, the Lender agrees that any Collateral and any proceeds of Collateral, Authorized Investments or Proceeds shall be applied as follows:

(i) First, to reimburse X.X. Xxxxxx for any and all amounts expended in complying with its obligations under Section 3.2;

(ii) second, to reimburse X.X. Xxxxxx for any and all amounts advanced by it under Section 2.7 or otherwise advanced by X.X. Xxxxxx on behalf of the affected Borrower; and

(iii) third, to any other amounts owed by the affected Borrower to Lender under the applicable MSLA.

(b) If X.X. Xxxxxx is required to perform or make any payment hereunder in connection with a Loan, Lender agrees that X.X. Xxxxxx shall be subrogated to and that Lender shall assign and be deemed to have assigned to X.X. Xxxxxx, all of Lender’s rights in, to and against Borrower (and any guarantor of this Agreement) (i) in respect of such Loan to the extent of any payment or purchase made by X.X. Xxxxxx under Sections 2.7 or 3.2 (or otherwise made to Lender by X.X. Xxxxxx on behalf of the affected Borrower under the applicable MSLA), and (ii) subject to Lender’s rights under Section 3.3(a), any Collateral pledged by Borrower in respect of such Loan, and all proceeds of such Collateral, including any Collateral and proceeds remaining after the application process set forth in Section 3.3(a). If Lender receives or is credited with any payment, benefit or value from or on behalf of Borrower in respect of the rights to which X.X. Xxxxxx becomes subrogated as provided herein, Lender shall promptly remit or pay to X.X. Xxxxxx the same (or, where applicable, its Dollar equivalent). Lender agrees that the express entitlement to subrogation contained in this Section shall be in addition and without prejudice to all and any equitable rights of subrogation which X.X. Xxxxxx may have or acquire on making any payment or effecting any repurchase as a result of the occurrence of any event involving a Borrower as aforesaid.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 18

4. INSTRUCTIONS

4.1 Acting on Instructions; Method of Instruction and Unclear Instructions

(a) Lender authorizes X.X. Xxxxxx to accept and act upon any Instructions received by it without inquiry. Lender is solely responsible for the accuracy and completeness of Instructions, proper delivery of Instructions to X.X. Xxxxxx, for updating Instructions as may be necessary to ensure their continued accuracy and completeness, and for monitoring their status. X.X. Xxxxxx will not be responsible for any Liabilities resulting from Lender’s failure to perform these responsibilities. Lender will indemnify X.X. Xxxxxx Indemnitees against, and hold each of them harmless from, any Liabilities that may be imposed on, incurred by, or asserted against X.X. Xxxxxx Indemnitees as a result of any action or omission taken in accordance with any Instruction, except to the extent that such Liabilities arise out of or are caused by the fraud, negligence or willful misconduct of any X.X. Xxxxxx Indemnitees in the manner in which it carries out the Instruction.

(b) To the extent possible, Instructions to X.X. Xxxxxx shall be sent via an encrypted, electronic means using technology consistent with industry standards, or a trade information system confirmed as acceptable to X.X. Xxxxxx.

(c) X.X. Xxxxxx shall promptly notify an Authorized Person if X.X. Xxxxxx determines that an Instruction does not contain all information reasonably necessary for X.X. Xxxxxx to carry out the Instruction. X.X. Xxxxxx may decline to act upon an Instruction if it does not receive missing information, clarification or confirmation satisfactory to it. X.X. Xxxxxx will not be liable for any Liabilities arising from any reasonable delay in carrying out any such Instruction while it seeks any such missing information, clarification or confirmation or in declining to act upon any Instruction for which it does not receive such missing information, clarification or confirmation satisfactory to it.

4.2 Verification and Security Procedures

(a) X.X. Xxxxxx and Lender shall comply with any applicable Security Procedures to permit X.X. Xxxxxx to verify the authenticity of Instructions.

(b) The Lender acknowledges that the Security Procedure is designed to verify the authenticity of, and not to detect errors in, Instructions. The Lender shall promptly notify X.X. Xxxxxx if it does not believe that any relevant Security Procedure is commercially reasonable, and its adherence to any Security Procedure without objection constitutes its agreement that it has determined the Security Procedure to be commercially reasonable.

(c) The Lender and its Authorized Persons are solely responsible for ensuring that the User Codes are reasonably safeguarded and known to and used by only the respective Authorized Persons to whom such User Codes apply. If (i) the User Codes are (or the Lender or its relevant Authorized Person reasonably suspects that the User Codes may be) lost, stolen, damaged, altered, unduly disclosed, known in a manner inconsistent with its purposes or compromised, (ii) the

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 19

Lender’s or any Authorized Persons’ access to X.X. Xxxxxx’x systems, applications or products, or any third party messaging platform through which the Instructions are transmitted, is revoked or suspended, or (iii) the Lender or an Authorized Person reasonably suspects any technical or security failure relating to any systems, applications or products of X.X. Xxxxxx or any third party messaging platform through which the Instructions are transmitted, the Lender shall immediately cease using such system, application, product or platform and promptly notify X.X. Xxxxxx.

4.3 Instructions; Contrary to Law/Market Practice

X.X. Xxxxxx shall not be required to act upon Instructions which it reasonably believes to be contrary to Applicable Law or market practice, and will not be responsible for any Liabilities resulting from not acting upon such Instruction. X.X. Xxxxxx will be under no duty to investigate whether any Instructions comply with Applicable Law or market practice. In the event X.X. Xxxxxx does not act upon such Instructions, X.X. Xxxxxx will notify Lender as soon as reasonably practicable.

4.4 Cut-Off Times

X.X. Xxxxxx has established deadlines for receipt of Instructions (each a “Cut-off Time”). If X.X. Xxxxxx receives an Instruction after its established Cut-off Time, X.X. Xxxxxx will attempt to act upon the Instruction on the day requested only if X.X. Xxxxxx deems it practicable to do so or otherwise as soon as practicable after the day on which the Instruction is received. X.X. Xxxxxx’x current Cut-off Times are set forth in Schedule 7 to this Agreement which may be updated from time to time upon notice from X.X. Xxxxxx.

4.5 Electronic Access and Cybersecurity

(a) Access by Lender to certain systems, applications or products of X.X. Xxxxxx shall be governed by this Agreement and the terms and conditions set forth in Schedule 8 Electronic Access. The Lender and its Authorized Persons shall use User Codes to access X.X. Xxxxxx’x systems, applications or products unless otherwise agreed by X.X. Xxxxxx.

(b) Each of Lender and X.X. Xxxxxx will maintain written cybersecurity policies and procedures which implement commercially reasonable administrative, technical, and physical safeguards that are aligned with industry security standards and that, among other things, protect against any anticipated threats or hazards to the security or integrity of their respective systems and data. X.X. Xxxxxx may in its discretion provide training or information on best practices to Lender from time to time but in so doing it will not be considered a consultant or advisor with respect to cybersecurity.

(c) Each of Lender and X.X. Xxxxxx will be responsible for the obtaining, proper functioning, maintenance and security of its own services, software, connectivity and other equipment.

4.6 Recording of Telephone Communications

Either party may record any of their telephone communications.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 20

5. FEES, EXPENSES AND OTHER AMOUNTS OWING TO X.X. XXXXXX

5.1 Fees and Expenses

(a) In connection with each Loan under this Agreement, Lender hereby authorizes X.X. Xxxxxx to retain a fee in an amount equal to 15 % of the sum of (i) earnings derived from Authorized Investments (as adjusted for any Rebate paid or received by X.X. Xxxxxx); (ii) any fee, paid or payable by Borrower with respect to Loans (including any Loan Fee but excluding any compensation payable by Borrower under any Tri-party Agreement); and (iii) any other amounts payable by Borrower under the MSLA in connection with a Loan (net, however, of any other amount payable by Lender in connection with such Loan). Gains and losses on Cash collateral investments shall not be taken into account in calculating earnings for the purposes of X.X. Xxxxxx’x fee. Earnings shall be subject to adjustment as necessary to correct variances and late items. X.X. Xxxxxx may execute foreign exchange transactions in order to convert earnings received in other currencies into Lender’s base currency at such rate as X.X. Xxxxxx customarily charges for similar transactions for similarly situated customers.

(b) The fee payable to X.X. Xxxxxx for services performed under Section 2.6 of this Agreement shall be equal to 0% of the amount of the Cash Collateral used to make outstanding Authorized Investments. Fees shall be accrued or charged daily, as appropriate, and shall be payable monthly in arrears.

(c) The parties shall mutually agree what, if any, reasonable amendments to the above fees at any time should result should either (i) Lender’s actual investment guidelines or portfolio differ significantly from the assumptions used to develop X.X. Xxxxxx’x fee proposal, (ii) Lender imposes material restrictions on the lending of Securities under this Agreement or the classes of Collateral that can be received, (iii) Lender’s service requirements change, (iv) Lender’s use of any other products that were included in X.X. Xxxxxx’x pricing proposal to the Lender is discontinued or modified in any respect material to X.X. Xxxxxx’x pricing proposal, or (v) the volume of Loans is materially and adversely affected due to a change in Applicable Law.

(d) X.X. Xxxxxx may retain its share of earnings and fees under this Agreement and shall credit Lender monthly with Lender’s share of earnings and Loan Fees. X.X. Xxxxxx may reverse a credit to Lender of earnings and Loan Fees upon written notification that such amount was incorrectly credited stating the amount of the reversal and the reasons for such reversal.

(e) Lender shall reimburse X.X. Xxxxxx for its reasonable and actual out-of-pocket expenses or reasonable and actual incidental expenses incurred in providing the services under this Agreement, including, but not limited to, legal fees; provided Lender has received prior written notice of such expenses and approves such expenses in advance. X.X. Xxxxxx may apply these expenses and any other amounts owed by Lender under this Agreement against Lender’s cash account with X.X. Xxxxxx and/or a Collateral Account.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 21

(f) Invoices (if any) will be payable within thirty (30) days of the date of the invoice. If Lender disputes an invoice, X.X. Xxxxxx may deduct such portion of the invoice that is not subject to dispute. Without prejudice to X.X. Xxxxxx’x other rights, X.X. Xxxxxx reserves the right to charge interest on overdue, undisputed amounts from the due date until actual payment at a rate equal to the fed funds rate (as in effect from time to time) plus two hundred basis points (or such other rate as may be agreed by X.X. Xxxxxx and Lender).

5.2 Overdrafts

X.X. Xxxxxx may, in its sole discretion, advance funds on behalf of Lender in order to pay to Borrowers any Rebates or to return to Borrowers Cash Collateral to which they are entitled under the applicable MSLA and deduct such advances from Lender’s cash account (even if an overdraft of the cash account results). If X.X. Xxxxxx elects to make such an advance, the advance will be deemed a loan to Lender, payable either on demand or automatically upon the occurrence of any event with respect to the Lender that is specified in either section 9.2(a)(ii) of this Agreement or section 365(e)(1) of the U.S. Bankruptcy Code, as amended from time to time. Any such advance will bear interest at the applicable rate charged by X.X. Xxxxxx from time to time, for such overdrafts, from the date of such advance to the date of payment (both after as well as before judgment) and otherwise on the terms on which X.X. Xxxxxx makes similar overdrafts available from time to time. No prior action or course of dealing on X.X. Xxxxxx’x part will be asserted by Lender against X.X. Xxxxxx for X.X. Xxxxxx’x refusal to make advances to under this Agreement or to settle any transaction for which Lender does not have sufficient available funds in the applicable currency in its cash account. The Lender acknowledges that any advance made under this Agreement is intended to be treated as a “securities contract” for purposes of the U.S. Bankruptcy Code to the maximum extent permitted by that Code, as amended from time to time.

5.3 X.X. Xxxxxx’x Right Over Securities; Set-off

(a) Without prejudice to X.X. Xxxxxx’x rights under Applicable Law, until satisfaction of all Liabilities outstanding from time to time (whether or not matured or contingent) of Lender to X.X. Xxxxxx or any of its Affiliates, X.X. Xxxxxx shall have, and Lender shall grant to X.X. Xxxxxx a security interest in and a lien on the assets held in the Securities Accounts and Lender’s interest in the Collateral Account and any other property at any time held by X.X. Xxxxxx for the benefit of Lender or in which Lender may have an interest which is then in X.X. Xxxxxx’x possession or control or in the possession or control of any third party acting on X.X. Xxxxxx’x behalf. X.X. Xxxxxx will be entitled to all rights and remedies available to a secured party under Applicable Law with respect to such assets, including, without notice to Lender, withholding delivery of such assets, selling or otherwise realizing any of such assets and to applying the proceeds and any other monies credited to any cash account maintained by Lender with X.X. Xxxxxx in satisfaction of such Liabilities. For this purpose, X.X. Xxxxxx may make such currency conversions as may be necessary at its then current rates for the sale and purchase of relevant currencies.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 22

(b) Without prejudice to X.X. Xxxxxx’x rights under Applicable Law, X.X. Xxxxxx may set off against any amount owing by Lender to X.X. Xxxxxx or any of its Affiliates any amount in any currency (i) standing to the credit of any of Lender’s accounts (whether deposit or otherwise) with any X.X. Xxxxxx branch or office or with any Affiliate of X.X. Xxxxxx, or (ii) owed to the Lender by any X.X. Xxxxxx branch or office or by any Affiliate of X.X. Xxxxxx. For this purpose, X.X. Xxxxxx shall be entitled to accelerate the maturity of any fixed term deposits and to effect such currency conversions as may be necessary at its current rates for the sale and purchase of the relevant currencies.

6. ADDITIONAL PROVISIONS RELATING TO THE PARTIES

6.1 Representations of Lender and X.X. Xxxxxx

(a) Lender represents and warrants that (i) it has full authority and power, and has obtained all necessary authorizations and consents, to enter into and perform its obligations under this Agreement, and to incur overdrafts as contemplated by this Agreement, and xxxxx x xxxx over assets as contemplated by Section 5.3; (ii) assuming execution and delivery of this Agreement by X.X. Xxxxxx, this Agreement is Lender’s legal, valid and binding obligation, enforceable in accordance with its terms and it has full power and authority to enter into and has taken all necessary corporate action to authorize the execution of this Agreement; (iii) there is no administrative, civil or criminal proceeding pending or, to the knowledge of the Lender, threatened against the Lender; (iv) it has not relied on any oral or written representation made by X.X. Xxxxxx or any person on its behalf, and acknowledges that this Agreement sets out to the fullest extent the duties of X.X. Xxxxxx; (v) it is a resident of the United States and shall notify X.X. Xxxxxx of any changes in residency; (vi) its execution, delivery, and performance of this Agreement shall at all times comply with Applicable Law, (vii) each Loan shall be, legally and validly entered into, and does not and shall not violate Applicable Law or judgment binding on Lender, or any provision of Lender’s charter or by-laws, or any agreement binding on Lender or affecting its property; (viii) it is lending Securities as principal and shall not transfer, assign or encumber its interest in, or rights with respect to, any Securities available for Loan under this Agreement, except for rights granted to X.X. Xxxxxx under the Custody Agreement; (ix) it is the beneficial owner of all Securities or otherwise has the right to lend Securities; (x) it is entitled to receive all Distributions on Securities eligible for lending under this Agreement and (xi) the representations and warranties to be given by X.X. Xxxxxx on Lender’s behalf as set out in the MSLAs are true and will continue to be true at all times until termination of X.X. Xxxxxx’x authority to act as Lender’s agent as provided in this Agreement. Lender shall promptly identify to X.X. Xxxxxx by notice, which notice may be oral, any Securities that are no longer subject to the foregoing representations and if any representations and warranties as are set out in the

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 23

MSLA cease to be true at any time. X.X. Xxxxxx may rely upon the Lender’s representations or certification of such other facts as may be required to administer X.X. Xxxxxx’x obligations under this Agreement and Lender shall indemnify X.X. Xxxxxx against all Liabilities arising directly or indirectly from any such certifications.

(b) X.X. Xxxxxx represents and warrants that (i) this Agreement has been duly authorized, executed and, assuming execution and delivery of this Agreement by Lender, constitutes X.X. Xxxxxx’x legal, valid and binding obligation, enforceable in accordance with its terms, (ii) it has full power and authority to enter into and has taken all necessary corporate action to authorize the execution of this Agreement, (iii) its execution, delivery, and performance of this Agreement shall at all times comply with Applicable Law, and (iv) it is conducting its business contemplated by this Agreement in compliance with Applicable Law.

6.2 Lender to Provide Certain Information to X.X. Xxxxxx

Upon request, Lender will promptly provide to X.X. Xxxxxx such information about itself and its financial status as X.X. Xxxxxx may reasonably request, including Lender’s organizational documents and its current audited and unaudited financial statements.

6.3 Insurance

Lender acknowledges that X.X. Xxxxxx will not be required to maintain any insurance coverage specifically for the benefit of Lender. X.X. Xxxxxx will, however, provide summary information regarding its own general insurance coverage to Lender upon written request.

6.4 Confidentiality

(a) Subject to Section 6.4(b) of this Agreement X.X. Xxxxxx will hold all Confidential Information in confidence and will not disclose any Confidential Information except as may be required by Applicable Law, a regulator with jurisdiction over X.X. Xxxxxx’x business, or with the consent of Lender.

(b) Lender authorizes X.X. Xxxxxx to disclose Confidential Information to:

(i) any subcontractor, agent, Securities Depository, securities exchange, Tri-party Institution, Borrower, broker, third party agent, proxy solicitor, issuer, and, on an anonymous basis, industry benchmarking/analytics service providers or any other person that X.X. Xxxxxx reasonably believes it is reasonably required to disclose such Confidential Information to in connection with X.X. Xxxxxx’x provision of relevant services under this Agreement;

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 24

(ii) its professional advisors, auditors or public accountants subject to a separate non-disclosure obligation with X.X. Xxxxxx to ensure protection of Lender’s Confidential Information to the same extent protected herein;

(iii) its branches and X.X. Xxxxxx Affiliates; and

(iv) any revenue authority or any governmental entity in relation to the processing of any tax relief claim.

(c) In the event that X.X. Xxxxxx is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information, X.X. Xxxxxx will provide Lender with prompt advance notice, to the extent feasible and not prohibited by law, of any such request or requirement (written if practical) so that Lender may seek an appropriate protective order or waiver. JPM agrees to cooperate reasonably in enabling Lender to obtain such a protective order. If, in the absence of a protective order or the receipt of a waiver hereunder, X.X. Xxxxxx is nonetheless, in the opinion of X.X. Xxxxxx’x counsel, legally required to disclose such Confidential Information or else stand liable for contempt or suffer other censure or penalty, X.X. Xxxxxx may disclose such information without liability hereunder, provided, however, that X.X. Xxxxxx shall disclose only that portion of such Confidential Information which it is legally required to disclose. Notwithstanding anything to the contrary in the foregoing, X.X. Xxxxxx may disclose any of the Confidential Information provided by the Lender to any bank regulatory authority having jurisdiction over X.X. Xxxxxx upon the request of the bank regulatory authority without having to provide the Lender with notice of any kind. JPM agrees to notify Lender promptly upon discovery of any unauthorized use or disclosure of the Confidential Information, and will reasonably cooperate with Lender to help regain possession of the Confidential Information and prevent any further unauthorized use of the Confidential Information.

(d) The confidentiality obligation of each party will survive for three (3) years after the termination of this Agreement.

6.5 Use of X.X. Xxxxxx’x Name

The Lender agrees not to use (or permit the use of) X.X. Xxxxxx’x name in any document, publication or publicity material relating to the Lender, including, but not limited to, notices, sales literature, stationery, advertisements, etc., without the prior written consent of X.X. Xxxxxx (which consent shall not be unreasonably withheld), provided that no prior consent is needed if the document in which X.X. Xxxxxx’x name is used merely states that X.X. Xxxxxx is acting as lending agent to the Lender.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 25

7. WHEN X.X. XXXXXX IS LIABLE TO LENDER

7.1 Standard of Care; Liability

(a) X.X. Xxxxxx will use reasonable care in performing its obligations under this Agreement.

(b) X.X. Xxxxxx will only be liable for Lender’s direct Liabilities and only to the extent they arise out of or relate to X.X. Xxxxxx’x fraud, bad faith, negligence or willful misconduct in performing or failing to perform its duties as set out in this Agreement. Nevertheless, under no circumstances will X.X. Xxxxxx be liable for any indirect, incidental, consequential or special damages (including, without limitation, lost profits) of any form incurred by any person or entity, whether or not foreseeable and regardless of the type of action in which such a claim may be brought, with respect to X.X. Xxxxxx’x performance under this Agreement, or X.X. Xxxxxx’x role as lending agent.

(c) Lender will indemnify X.X. Xxxxxx Indemnitees against, and hold them harmless from, any Liabilities that may be imposed on, incurred by or asserted against any of X.X. Xxxxxx Indemnitees in connection with or arising out of X.X. Xxxxxx’x performance under this Agreement (including without limitation any action taken or omitted by X.X. Xxxxxx in connection with enforcing Lender’s rights under the applicable MSLA), except for those Liabilities arising out of or related to fraud, bad faith, negligence or willful misconduct of any X.X. Xxxxxx Indemnitee.

(d) Without limiting Subsections 7.1(a), (b) or (c), X.X. Xxxxxx will have no duty or responsibility to question Instructions or make any suggestions to Lender or an Authorized Person regarding such Instructions.

(e) X.X. Xxxxxx may refrain from bringing any legal action or proceeding arising out of or in connection with any Loan until it shall have received such security as it may require for all reasonable and actual costs, reasonable and actual expenses (including reasonable legal fees) and Liabilities which it shall or may expend or incur in relation to that Loan.

(f) Subject to Section 7.1(a) of this Agreement and X.X. Xxxxxx’x express obligations under Sections 2.7 and 3.2 of this Agreement, X.X. Xxxxxx shall not be liable for any Liabilities arising out of the failure of any Borrower to fulfill the terms of any Loan or MSLA.

7.2 Force Majeure

X.X. Xxxxxx will maintain and update from time to time business continuation and disaster recovery procedures with respect to its securities lending business that it determines from time to time meet reasonable commercial standards. Neither party will be liable for any Liabilities of any nature that the other party or any third party may suffer or incur, caused by an act of God, fire, flood, civil or labor disturbance, war, terrorism, act of any governmental authority or other act or threat of any authority (de jure or de facto), legal constraint, fraud, theft or forgery (other than on the part of J.P.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 26

Xxxxxx or its employees), cyber-attack, malfunction of equipment or software (except where such malfunction is primarily attributable to such party’s negligence in maintaining the equipment or software), currency re-denominations, currency restrictions, failure of or the effect of rules or operations of any external funds transfer system, inability to obtain (or interruption of) external communications or interruption of external communications facilities, power failures, or any other cause beyond the reasonable control of such party (including without limitation, the non-availability of appropriate foreign exchange).

7.3 X.X. Xxxxxx May Consult With Counsel

With respect to questions of law, regulation or market practice, X.X. Xxxxxx may consult with qualified counsel experienced in securities lending matters and be fully protected with respect to any reasonable action taken or omitted to be taken in good faith and in conformity with the advice of such counsel.

7.4 X.X. Xxxxxx Provides Diverse Financial Services and May Generate Profits as a Result

Potential conflicts of interest may arise whenever X.X. Xxxxxx has an actual or perceived economic or other incentive as securities lending agent to act in a way that benefits X.X. Xxxxxx because of relationships that X.X. Xxxxxx has with other clients or when X.X. Xxxxxx acts for its own account. Potential conflicts may arise, for example (to the extent the following activities are permitted in Lender’s account(s)) when: (1) X.X. Xxxxxx enters into Loans or Authorized Investments in the form of repurchase agreement transactions where an Affiliate is the counterparty; (2) X.X. Xxxxxx makes an Authorized Investment in an investment product, such as, without limitation, mutual fund, managed by X.X. Xxxxxx or an Affiliate; (3) a X.X. Xxxxxx entity obtains services, including trade execution and trade clearing, from an Affiliate such as, without limitation, X.X. Xxxxxx Securities LLC, X.X. Xxxxxx Securities plc or X.X. Xxxxxx Clearing Corp; (4) X.X. Xxxxxx receives payment as a result of purchasing an investment product for a client’s account; or (5) X.X. Xxxxxx receives payment for providing services (including shareholder servicing, recordkeeping or custody) with respect to investment products purchased or held as collateral for a client’s portfolio. Other potential conflicts may arise because of relationships that X.X. Xxxxxx has with other clients or when X.X. Xxxxxx acts for its own account.

Lender hereby authorizes X.X. Xxxxxx to act under this Agreement notwithstanding that X.X. Xxxxxx or an Affiliate may have a potential conflict of duty or interest in a transaction. In addition to the potential conflicts described above, this includes the fact that X.X. Xxxxxx may: (a) in its individual capacity or acting in a fiduciary capacity for other accounts, have transactions with the same institutions to which X.X. Xxxxxx may be lending Securities, or in which X.X. Xxxxxx may invest Cash Collateral, under this Agreement; (b) use EquiLend, a securities lending platform in which X.X. Xxxxxx has an equity interest (and therefore a financial interest in its success), to transact certain Loans with Borrowers that are EquiLend participants (it being understood that EquiLend will neither act as principal in, nor guarantee, any such Loan); (c) when making Authorized Investments as agent for Lender, enter into repurchase agreement

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 27

transactions under which collateral and/or margin posted by the repurchase transaction seller is held by X.X. Xxxxxx, as custodian for such seller; (d) act as custodian for certain Borrowers, and hold Collateral in the form of Securities posted for Loans by such Borrower; and (e) act as a counterparty to Lender in currency exchange transactions. X.X. Xxxxxx or its Affiliates may earn fees and profits from any of the above-listed activities. Lender acknowledges that such fees are separate from, and in addition to, the fees that X.X. Xxxxxx earns under this Agreement and Lender hereby consents to the receipt by X.X. Xxxxxx or its Affiliates of such fees. In connection with the foregoing, X.X. Xxxxxx shall not be bound to: (i) account to Lender for any fee or other sum received or profit made by X.X. Xxxxxx for its own account or the account of any other person or (ii) disclose any information concerning the specifics of any given transaction or arrangement listed above; provided that, as respects (i) above, X.X. Xxxxxx shall, upon request, promptly inform Lender of the relevant facts as the same relate to X.X. Xxxxxx’x fees as securities lending agent for Lender hereunder.

7.5 Responsibility for Certain Third Parties

(a) X.X. Xxxxxx may use third party delivery services and providers of information regarding matters such as pricing, and credit ratings. Although X.X. Xxxxxx will use reasonable care in the selection and retention of such third party providers, it will not be responsible for any errors or omissions made by them in providing the relevant information or services.

(b) Notwithstanding anything contained in the Custody Agreement relating to X.X. Xxxxxx’x liability for subcustodians, X.X. Xxxxxx shall have no obligation under this Agreement for any Liabilities relating to custody and safekeeping which are sustained or incurred by Lender by reason of any action or inaction by any Securities Depository or a Tri-party Institution or their respective agents, assigns, successors or nominees. If Lender is damaged by the failure of a Securities Depository or a Tri-party Institution to properly fulfill its obligations with respect to Collateral or Securities, X.X. Xxxxxx shall provide reasonable cooperation with respect to any claim that Lender may choose to assert against the Securities Depository or Tri-party Institution in the matter.

8. TAXATION

8.1 Tax Filings

Lender shall be responsible for all filings, tax returns and reports on any Loans undertaken by X.X. Xxxxxx on Lender’s behalf which are to be made to any authority whether governmental or otherwise and for the payment of all unpaid calls, taxes (including, without limitation, any value added tax), imposts, levies or duties due on any principal or interest, or any other liability or payment arising out of or in connection with any Securities or any Collateral, and insofar as X.X. Xxxxxx is under any obligation (whether of a governmental nature or otherwise) to pay the same on Lender’s behalf, X.X. Xxxxxx may do so out of any monies or assets held by it under the terms of the Custody Agreement or this Agreement.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 28

8.2 Tax Treatment

Lender acknowledges that: (i) the tax treatment of the payments made by a Borrower to Lender in lieu of Distributions (including, by way of illustration and not of limitation, with respect to any dividends received deduction and amounts paid by the depositary on American Depositary Receipts and Global Depositary Receipts) may differ from the tax treatment of the Distribution to which such payments relate; and (ii) it has made its own determination as to the tax treatment of any Loan made under this Agreement, of any payments made by a Borrower and of any remuneration and any other amounts that may be received by it under this Agreement.

9. TERM AND TERMINATION

9.1 Termination

Either party may terminate this Agreement in whole or with respect to a particular series without penalty by giving not less than thirty (30) days’ written notice to the other party. Termination of this Agreement with respect to one series shall not constitute a termination of this Agreement with respect to any other series.

9.2 Other Grounds for Termination

(a) Either party may terminate this Agreement immediately on written notice to the other party upon the occurrence of any of the following:

(i) if the other party commits any material breach of this Agreement and fails to remedy such breach (if capable of remedy) within thirty (30) days’ of the party in breach being given written notice of the material breach, unless the parties agree to extend the period to remedy the breach; or

(ii) the other (A) admits in writing its inability or is generally unable to pay its debts as they become due; (B) institutes, consents to or is otherwise subject to the institution of any proceeding under title 11 of the United States Code, as in effect from time to time, or any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, composition with creditors, wind-down, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief law of the United States or other applicable jurisdiction from time to time in effect and affecting the rights of creditors, generally; (C) is subject to an involuntary order for the transfer of all or part of its business by a statutory authority; (D) has any of its issued shares suspended from trading on any exchange on which they are listed (if applicable) or (E) is the subject of a measure similar to any of the foregoing.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 29

9.3 Exit Procedure

Following the delivery of the notice of termination, the parties shall cooperate in the termination of Loans and the disposition of investments of Cash Collateral in a manner to minimize the risk to the parties. Termination will not affect any of the liabilities either party owes to the other arising under this Agreement prior to such termination.

10. MISCELLANEOUS

10.1 Notifications

Notices under Section 9 of this Agreement will be served by registered mail or hand delivery to the address of the respective parties as set out on the first page of this Agreement, unless at least two (2) days’ prior written notice of a new address is given to the other party in writing. Notice under Section 9 will not be deemed to be given unless it has been received.

10.2 Successors and Assigns

This Agreement will be binding on each of the parties’ successors and assigns. The parties agree that neither party can assign nor otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld, delayed or conditioned. Nevertheless, the foregoing restriction on transfer shall not apply to any assignment or transfer by X.X. Xxxxxx to any X.X. Xxxxxx Affiliate or in connection with a merger, reorganization, stock sale or sale of all or substantially all of X.X. Xxxxxx’x securities lending business.

Notwithstanding anything to the contrary in the Agreement, in the event X.X. Xxxxxx becomes subject to a resolution proceeding under the Federal Deposit Insurance Act (12 U.S.C. 1811–1835a) or Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (12 U.S.C. 5381–5394) and regulations promulgated under those statutes (each, a “U.S. Special Resolution Regime”) the transfer of this Agreement (and any interest and obligation in or under, and any property securing, the Agreement) from X.X. Xxxxxx will be effective to the extent effective under the U.S. Special Resolution Regime.

10.3 Entire Agreement and Amendments

This Agreement, including any Schedules, Exhibits, Annexes and Appendices, sets out the entire Agreement between the parties in connection with the subject matter hereof, and this Agreement supersedes any other agreement, statement, or representation relating to securities lending, whether oral or written. The parties may enter into one or more non-binding service level documents on terms agreed by the parties and may vary any service level document by agreement at any time. The service level document will not form part of this Agreement. To the extent inconsistent with this Agreement, X.X. Xxxxxx’x electronic access terms and conditions shall not apply to matters arising under this Agreement. Amendments must be in writing and, except where this Agreement provides for amendments by notice from X.X. Xxxxxx, signed by both parties.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 30

10.4 Governing Law and Jurisdiction

This Agreement will be construed, regulated, and administered under the laws of the United States or the State of New York, as applicable, without regard to New York’s principles regarding conflict of laws, except that the foregoing shall not reduce any statutory right to choose New York law or forum. The United States District Court for the Southern District of New York will have the sole and exclusive jurisdiction over any lawsuit or other judicial proceeding relating to or arising from this Agreement. If that court lacks federal subject matter jurisdiction, the Supreme Court of the State of New York, New York County will have sole and exclusive jurisdiction. Either of these courts will have proper venue for any such lawsuit or judicial proceeding, and the parties waive any objection to venue or their convenience as a forum. The parties agree to submit to the jurisdiction of any of the courts specified and to accept service of process to vest personal jurisdiction over them in any of these courts. The parties further hereby knowingly, voluntarily and intentionally waive, to the fullest extent permitted by Applicable Law, any right to statutory prejudgment interest and a trial by jury with respect to any such lawsuit or judicial proceeding arising or relating to this Agreement or the transactions contemplated hereby. To the extent that in any jurisdiction Lender may now or hereafter be entitled to claim, for itself or its assets, immunity from suit, execution, attachment (before or after judgment) or other legal process, Lender shall not claim, and it hereby irrevocably waives, such immunity.

10.5 Severability; Waiver; and Survival

(a) If one or more provisions of this Agreement are held invalid, illegal or unenforceable in any respect on the basis of any particular circumstances or in any jurisdiction, the validity, legality and enforceability of such provision or provisions under other circumstances or in other jurisdictions and of the remaining provisions will not in any way be affected or impaired.

(b) Except as otherwise provided herein, no failure or delay on the part of either party in exercising any power or right under this Agreement operates as a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise, or the exercise of any other power or right. No waiver by a party of any provision of this Agreement, or waiver of any breach or default, is effective unless it is in writing and signed by the party against whom the waiver is to be enforced.

(c) Sections 6.4, 7.1(b), 7.1 (c) and 9.3 shall survive termination of this Agreement.

10.6 Counterparts

This Agreement may be executed in several counterparts each of which will be deemed to be an original and together will constitute one and the same agreement.

10.7 No Third Party Beneficiaries

A person who is not a party to this Agreement shall have no right to enforce any term of this Agreement.

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 31

10.8 Stay Legislation

For the purpose of complying with regulations applicable to qualified financial contracts, any potential bail-in of liabilities and analogous regulations, laws and rules put in place in relevant jurisdictions (“Stay Legislation”), X.X. Xxxxxx may, on your behalf: (1) agree to amend any master securities loan agreement, master repurchase agreement and any other agreement entered into by X.X. Xxxxxx on your behalf pursuant to this Agreement, whether in the form of industry standard or bespoke agreements including, but not limited to, agreeing to contractually acknowledge stays and analogous overrides of default rights that would be applicable under such Stay Legislation; (2) adhere to any protocols published by the International Swaps and Derivatives Association, Inc. on your behalf, including the ISDA Resolution Stay Protocol and any Jurisdictional Modules thereto; and/or (3) take any other action on your behalf that X.X. Xxxxxx, in its sole discretion, deems to be necessary to comply with the Stay Legislation.

10.9 Liability of the Trust and Each Lender

The Trust has executed one instrument for convenience only. Each series of the Trust shall be a separate Lender for purposes of this Agreement and any loans made pursuant to this Agreement or any MSLA or Tri-party Agreement. The obligations of each series pursuant to this Agreement, including any obligations with respect to indemnification or set off, and any MSLA or Tri-party Agreement, are several and not joint and no series shall be liable for any amount owing to X.X. Xxxxxx, a Borrower or anyone else by another series, or the Trust on behalf of another series. JPM shall not be entitled to set off amounts owed by one series against amounts owed by another series or the Trust on behalf of any series. The obligations of any series are not binding upon any of the directors or shareholders of the series individually, but are binding only upon such series and the assets of such series.

[remainder of page intentionally left blank]

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 32

In Witness Whereof, the parties have executed this Agreement as of the date first written above.

PROSHARES TRUST, on behalf of each series listed in Annex I hereto, severally and not jointly JPMORGAN CHASE BANK, N.A.

By:		/s/ Xxxx X. Xxxxxxx				By:		/s/ Xxxxxx X. Xxxxxxx
Name:		Xxxx X. Xxxxxxx				Name:		Xxxxxx X. Xxxxxxx
Title:		President				Title:		Managing Director
Date:		December 17, 2018				Date:		December 18, 2018

Securities Lending Agreement - JPMCB New York - General - June 2018 Version 33