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Dcatschc BaakAG
THE
BOND
MARKET
ftSSOCIAllON
•> A
International Securities Market Association
Rigistrasse 60, P.O. Box 169, CH-8033 Zurich
www.isma.org
The Bond Market Association
New York * Washington * London
www.bondmarkets.com
2000 VERSION
TBMA/ISMA
GLOBAL MASTER REPURCHASE AGREEMENT
Dated as ofJasMry 7,2015
Between:
DEUTSCHE BANK AG {"Party A")
and
I
SOUTHERN FIISIANCIAL LLC ("Party B")
Applicability
From time to time (he parties hereto may enter into transactions in which
one party, acting through a
Designated Office, ("Seller") agrees to sell to the other, acting through a
Designated Office, ("Buyer")
securities and financial instruments ("Securities") (subject (0 paragraph
1(c), other than equities and
Net Paying Securities) against the payment of the purchase price by Buyer to
Seller, with a
simultaneous agreement by Buyer (0 sell to Seller Securities equivalent to
such Securities at a date
certain or on demand against the payment of the repurchase price by Seller
to Buyer.
Each such transaction (which may be a repurchase transaction ("Repurchase
Transaction") or a buy and
sell back transaction ("Buy/Sell Back Transaction") shall be referred to
herein as a "Transaction" and
shall be governed by this Agreement, including any supplemental terms or
conditions contained in
Annex I hereto, unless otherwise agreed in writing.
If this Agreem^t may be applied to-
1
(a)
(b)
(0)
Buy/Sell Back Transactions, (his shall be specified in Annex I hereto, and
EFTA01441384
the provisions of the
Buy/Sell Back Annex shall apply to such Buy/Sell Back Transactions;
(i)
Net Paying Securities, this shall be specified in Annex I hereto and the
provisions of Annex I,
paragraph 1(b) shall apply to Transactions involving Net Paying Securities.
(ii)
If Transactions are to be effected undo' this Agreement by either party as
an agent, this shall be
specified in Annex I hereto, and the provisions of (he Agency Annex shall
apply to such Agency
Transactions.
(d)
Definitions
2.
I
Confidential
(a) "Act of Insolvency" shall occur with respect to any party hereto upon
its making a general assignment for the benefit of, entering into a
reorganisation, arrangement,
or composition with creditors; or
its admitting in writing that it is unable to pay its debts as they become
due; or
its seeking, consenting to or acquiescing in the appointment of any trustee,
administrator,
receiver or liquidator or analogous officer of it or any material part of
its properly; or
the presentation or filing of a petition in respect of it (other than by the
counterparty to this
Agreement in respect of any obligation under this Agreement) in any court or
before any
agency alleging or for the bankruptcy, winding-up or insolvency of such
party (or any
analogous proceeding) or seeking any reorganisation, arrangement
composition, re-
adjustment, administration, liquidation, dissolution or similar relief under
any present or future
statute, law or regulation, such petition (except in die case of a petition
for winding-up or any
analogous proceeding, in respect of which no such 30 day period shall apply)
not having been
stayed or dismissed within 30 days of its filing; or
the appointment of a receiver, administrator, liquidator or trustee or
analogous ofllcer of such
party or over all or any material part of such party's property; or
the convening of any meeting of its creditors for the purposes of
considering a voluntajy
arrangement as referred to in section 3 of the Insolvency Act 1986 (or any
analogous
proceeding);
(b) "Agency Transaction", the meaning specified in paragr^h I ofthe Agency
EFTA01441385
Annex;
(c) "Appropriale Market", the meaning specified in paragraph 10;
(d) "Base Currency", the currency indicated in Annex I hereto;
(i)
(ii)
(iii)
(iv)
(V)
(vt)
(e) "Business Day" -
in relation to the settlement of any Transaction which is to be settled
through Clearstream or
Euroclear, a day on which Clearstream or, as the case may be, Euroclear is
open to settle
business in the currency in which the Purchase Price and the Repurchase
Price are
denominated;
in relation to the settlement of any Transaction which is to be settled
through a settlement
system other than Clearstream or Euroclear, a day on which that settlement
system is open to
settle such Transaction;
in relation to any delivery of Securities not falling within (i) or (ii)
above, a day on which
banks are open for business in the place where delivery of the relevant
Securities is to be
effected; and
in relation to any obligation to make a payment not falling within (i) or
(ii) above, a day other
than a Saturday or a Sunday on which banks are open for business in the
principal financial
centre of the country of which the currency in which the payment is
denominated is the
official currency and. if different, in (he place where any account
designated by the parties for
the making or receipt of the payment is situated (or, in (he case of a
payment in euro, a day on
which TARGET operates);
(i)
(ii)
(iii)
(iv)
•'Cash Margin", a cash sum paid to Buyer or Seller in accordance with
paragraph 4;
<0
"Clearstream". Clearstream Banking, soeiete anonyme. (previously Cedelbank)
or any successor
(hereto;
(B)
(h) "Confirmation", the meaning specified in paragraph 3(b);
"Contractual Currency", the meaning specified in paragraph 7(a);
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(i)
"Defaulting Party", the meaning specified in paragraph 10;
(1)
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Confidential
(k) "Default Market Value", the meaning specified in paragraph 10;
(I) "Default Notice", a written notice served by the non-DefauIling Party on
the Defaulting Parly under
paragraph 10 stating that an event shall be treated as an Event of Default
for the purposes of this
Agreement;
(m) "Default Valuation Notice", the meaning specified inpanigr!q>h 10;
(n) "Default Valuation Time", the meaning specified in paragraph 10;
(o) "Deliverable Securities", the meaning specified in paragraph 10;
(p) "Designated Ofilce", with respect to a party, a branch or office of that
party which is specified as such
in Annex I hereto or such other branch or office as may be agreed to by the
parties;
(q) "Distributions", the meaning specified in subparagraph (w) below;
(r) "Equivalent Margin Securities". Securities equivalent to Secorilies
previously transferred as Maigin
Securities;
"Equivalent Securities", with respect to a Transaction, Securities
equivalent to Purchased Securities
under that Transaction. If and to the extent that such Purchased Securities
have been redeemed, the
expression shall mean a sum of money equivalent to the proceeds of the
redemption;
(s)
Securities are "equivalent to" other Securities for the purposes of this
Agreement if they are: (i) of the
same issuer: (ii) pan of the same issue: and (iii) of an identical type,
nominal value, description and
(except where otherwise staled) amount as those other Securities, provided
that -
Securities will be equivalent to other Securities notwithstanding that those
Securities have
been redenominated into euro or that the nominal value of those Securities
has changed in
connection with such redenomination; and
where Securities have been converted, subdivided or consolidated or have
become the subject
of a takeover or the holders of Securities have become entitled to receive
or acquire other
Securities or other property or the Securities have become subject to any
similar event, the
expression "equivalent to" shall mean Securities equivalent to (as defined
in the provisions of
this definition preceding the proviso) the original Securities together with
or replaced by a
sum of money or Securities or other property equivalent to (as so defined)
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that receivable by
holders of such original Securities resulting from such event;
(1>
(A)
(B)
"Euroclear". Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the
Euroclear System;
(u)
(v) "Eventof Default", ihcmeaning specified in paragraph 10;
"Income", with respect to any Security at any time, all interest, dividends
or other distributions thereon,
but excluding distributions which are a payment or repayment of principal in
respect of the relevant
securities ("Distributions");
(w)
"Income Payment Date", with respect to any Securities, the dale on which
Income is paid in respect of
such Securities or, in the case of registered Securities, the date by
reference to which particular
registered holders are identified as being entitled to payment of Income;
"LIBOR", in relation to any sum in any currency, the one month London Inter
Bank Offered Rale in
respect of that currency as quoted on page 3750 on the Bridge Telerate
Service (or such other page as
may replace page 3750 on that service) as of 11 ;00 a.m.. London time, on
the date on which it is to be
determined;
<x)
(Y)
"Margin Ratio", with respect to a Transaction, the Market Value of the
Purchased Securities at the time
when the Transaction was entered into divided by the Purchase Price (and so
that, where a Transaction
(z)
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Confidential
relates to Securities of different descriptions and the Purchase Price is
apportioned by the parties
among Pundiased Securities of each sudi description, a separate Margin Ratio
shall apply in respect of
Securities of each such description), or such other proportion as the
parties may agree with respect to
that Transaction;
"Margin Securities", in relation to a Margin Transfer. Securities reasonably
acceptable to the party
calling for such Margin Transfer;
"Margin Transfer", any, or any combination of, the payment or repayment of
Cash Margin and the
Iransfhr of Margin Securities or Equivalent Margin Securities;
(aa)
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(bb)
"Market Value", with respect Co any Securities as of any time on any date,
the price for such Securities
at such time on such date obtained from a generally recognised source agreed
to by the parties (and
where different prices are obtained for different delivery dates, the price
so obtainable for the earliest
available such delivery dale) (provided that the price of Securities that
are suspended shall (for the
purposes of paragraph 4) be nil unless the parties otherwise agree and (for
all other purposes) shall be
the price of those Securities as of close of business on the dealing day in
the relevant market last
preceding the dale of suspension) plus the aggregate amount of Income which,
as of such date, has
accrued but not yet been paid in respect of the Securities to the extent not
included in such price as of
such date, and for these purposes any sum in a currency other than the
Contractual Currency for the
Transaction in question shall be converted into such Coniracluai Currency at
the Spot Rate prevailing
at the relevant time;
(cc)
"Net Exposure", the meaning specified in paragraph 4(c);
(dd)
the "Net Margin" provided to a party at any lime, the excess (if any) at
that time of (i) the sum of the
amount of Cash Margin paid to that party (including accrued interest on such
Cash Margin which has
not been paid to the other party) and the Market Value of Margin Securities
transferred to that party
under paragraph 4(a) (excluding any Cash Margin which has been repaid to the
other party and any
Margin Securities in respect of which Equivalent Margin Securities have been
transferred to the other
party) over (ii) the sum of the amount of Cash Margin paid to the other
party (including accrued
interest on such Cash Margin which has not been paid by the other party) and
the Market Value of
Margin Securities transferred to the other party under paragraph 4(a)
(excluding any Cash Margin
which has been repaid by the other party and any Margin Securities in
respect of which Equivalent
Margin Securities have been transferred by the other party) and for this
purpose any amounts not
denominated in the Base Currency shall be converted into the Base Currency
at the Spot Rate
prevailing at the relevant time;
(ee)
"Net Paying Securities", Securities which are of a kind such that, were they
to be the subject of a
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Transactimi to which paragraph 5 applies, any payment made by Buyer under
paragraph 5 would be
one in respect of which either Buyer would or might be required to make a
withholding or deduction
for or on account of taxes or duties or Seller might be required to make or
account for a payment for or
on account of taxes or duties (in each case other than tax on overall net
inctmie) by reference to such
payment;
(10
"Net Value", the meaning specified in paragraph 10;
(gg)
"New Pundiased Securities", the meaning specified in paragraph 8(a);
(Ml)
"Price Differential", with respect to any Transaction as of any date, the
aggregate amount obtained by
daily application of the Pricing Rate for such Transaction to the Purchase
Price for such Transaction
(on a 360 day basis or 365 day basis in accordance with the applicable ISMA
convention, unless
otherwise agreed between the parties for the Transaction), for the actual
number of days during the
period commencing on (and including) the Purchase Date for such Transaction
and ending on (but
excluding) the dale of calculation or. if earlier, the Repurchase Date;
(ii)
"Pricing Rate", with respect to any Transaction, the per annum percentage
rale for calculation of the
Price Differential agreed to by Buyer and Seller in relation to that
Transaction;
(ii)
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Confidential
"Purchase Date", with respect to any Transaction, the date on which
Purchased Securities are to be sold
by Seller to Buyn in relation to that Transaction;
(kk)
"Purchase Price", on the Purchase Date, the price at which Purchased
Securities are sold or are to be
sold by Seller to Buyer;
(11)
(mm) "Purchased Securities" with respect to any Transaction, the Securities
sold or to be sold by Seller to
Buyer under that Transaction, and any New Purchased Securities transferred
by Seller to Buyer under
paragraph 8 in respect of that Transaction;
"Receivable Securities", the meaning specified in paragraph 10;
(nn)
"Repurchase Date", with respect to any Transaction, the date on which Buyer
is to sell Equivalent
Securities to Seller in relation to that Transaction;
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(oo)
"Repurchase Price", with respect to any Transaction and as of any dale, the
sum of the Purchase Price
and the Price Differential as of such dale;
(PP)
"Special Default Notice", the meaning specified in paragraph 14;
(qq)
"Spot Rate", where an amount in one currency is to be converted into a
second currency on any date.
unless the parties otherwise agree, the spot rate of exchange quoted by
Barclays Bank PLC in the
London inter-bank market for the sale by it of such second currency against
a purchase by it of such
first currency;
(ft)
(ss) "TARGET", the Trans-European Automated Real-time Gross Settlement
Express Transfer System;
"Term", with respect to any Transaction, the interval of time commencing
with the Purchase Date and
ending with the Repurchase Date;
(tt)
"Termination", with respect to any Transaction, refers to the requirement
with respect to such
Transaction for Buyer to sell Equivalent Securities against payment by
Seller of the Repurchase Price
in accordance with paragraph 3(0. and reference to a Transaction having a
"fixed term" or being
"(enninable upon demand" shall be construed accordingly:
(uu)
"Transaction Costs", the meaning specified in paragraph 10;
(vv)
"Transaction Exposure", with respect to any Transaction at any time during
the period from the
Purchase D^e to the Repurchase Date (or. if later, the dale on which
Equivalent Securities are
delivered to Seiler or the Transaction is terminated under paragraph l<Kg)
or 10(h)), the difference
between (i) the Repurchase Price at such time multiplied by the applicable
Margin Ratio (or, where the
Transaction relates to Securities of more than one description to which
different Margin Ratios apply.
the amount produced by multiplying the Repurchase Price attributable to
Equivalent Securities of each
such description by the applicable Margin Ratio and aggregating (he
resulting amounts, (he Repurchase
Price being for this purpose attributed to Equivalent Securities of each
such description in the same
proportions as those in which the Purchase Price was apportioned among the
Purchased Securities) and
(ii) the Market Value of Equivalent Securities at such time. If (i) is
greater than (ii). Buyer has a
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Transaction Exposure for that Transaction equal to that excess. If (ii) is
greater than (i). Seller has a
Transaction Exposure for that Transaction equal to that excess; and
(ww)
except in paragraphs I4(b)(i) and 18, references in this Agreement to
"written" communications and
communications "in writing" include communications made through any
electronic system agreed
between the parties which is capable of r^aoducing such communication in
hard copy form.
(XX)
Initiation; Confirmation; Termination
A Transaction may be entered into orally or in writing at the initiation of
either Buyer or Seller.
Upon agreeing to enter into a Transaction hereunder Buyer or Seller (or
both), as shall have been
agreed, shall promptly deliver to the other party written confirmation of
such Transaction (a
"Confirmation").
3
(a)
(b)
5
Confidential
The Confirmation shall describe the Purchased Securities (including CUSIP or
ISIN or other
identifying number or numbers, if any), identify Buyer and Seller and set
forth -
(i) the Purchase Date;
(ii) the Purchase Price;
(iii) the Repurchase Date, unless the Transaction is to be terminable on
demand (in which case the
Confirmation shall state that it is terminable on demand);
(iv) the Pricing Rate applicable to the Transaction;
(v) in respect of each party the details of the bank account[s] to which
payments to be made
hereunder are to be credited;
(vi) where the Buy/Sell Back Annex applies, whether the Transaction is a
ReiMirchase Transaction
or a Buy/Sell Back Transaction;
(vii) where the Agency Annex a^^lies, whether the Transaction is an Agency
Transaction and, if
so, the identity of the party which is acting as agent and the name, code or
identifier of the
Principal; and
(viii) any additional terms or conditions of the Transaction;
and me' be in the fonn of Annex (I hereto or may be in any other form to
which the parties agree.
The Confirmation relating to a Transaction shall, together with this
Agreement, constitute prima facie
evidence of the terms agreed between Buyer and Seller for that
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'I'ransaction, unless objection is made
with respect to the Confirmation jHximptly after receipt thereof. In the
event of any conflict between the
terms of such Confirmation and (his Agreement, the Confirmation shall
prevail in respect of that
Transaction and those terms only.
(c) On the Purchase Date for a Transaction, Seller shall transfer the
Purchased Securities to Buyer or its
agent against (he payment of the Purchase Price by Buyer.
(d) Termination of a Transaction will be effected, in (he case of on demand
Transactions, on the date
specified for Termination in such demand, and, in the case of fixed term
Transactions, on the date fixed
for Termination.
(e) In the case of on demand Transactions, demand for Termination shall be
made by Buyer or Seller, by
telephone or otherwise, and shall provide for Termination to occur after not
less than (be minimum
period as is customarily required for (he settlement or delivny of money or
Fquivalent Securities of (he
relevant kind.
(f) On the Repurchase Dale. Buyer shall transfer to Seller or its agent
Equivalent Securities against the
payment of the Repurchase Price by Seller (less any amount then payable and
unpaid by Buyer to
Seller pursuant to paragraph 3).
Margin Maimenance
If at any time either party has a Net Exposure in respect of the other patty
it may by notice to the other
party require the other party to make a Margin Transfer to it of an
aggregate amount or value at least
equal to that Net Exposure.
A notice under subparagraph (a) above may be given orally or in writing.
For the purposes of this Agreement a party has a Net Exposure in respect of
the other party if the
aggregate of all the first party's I'ransaction Exposures plus any amount
payable to the first party under
paragraph S but unpaid less the amount of any Net Margin provided to (he
first party exceeds the
aggregate of all the other party's Transaction Exposures plus any amount
payable to the other party
under paragraph 5 but unpaid less (he amount of any Net Margin provided to
the other party; and the
amount of the Net Exposure is the amount of the excess. For this purpose any
amounts not
denominated in Che Base Currency shall be converted into the Base Currency
at the Spot Rale
prevailing at the relevant time.
To the extent (hat a party calling for a Margin Transfer has previously paid
Cash Margin which has not
been repaid or delivered Margin Securities in respect of which Equivalent
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Margin Securities have not
been delivered to it. that party shall be entitled to require that such
Margin Transfer be satisfied first by
4
(a)
(b)
(c)
(d)
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Confidential
the repayment of such Cash Margin or the delivery of Equivalent Margin
Securities but, subject to this,
the composition of a Margin Transfer shall be at the option of the party
making such Margin Transfer.
Any Cash Margin transferred shall be in the Base Currency or such other
currency as the parties may
agree.
A payment of Cash Margin shall give rise to a debt owing from the party
receiving such payment to the
party making such payment. Such debt shall bear interest at such rate,
payable at such times, as may be
specified in Annex I hereto in respect of the relevant currency or otherwise
agreed between the parties,
and shall be repayable subject to the terms of this Agreement.
Where Seller or Buyer becomes obliged under subparagraph (a) above to make a
Margin Transfer, it
shall transfer Cash Margin or Margin Securities or Equivalent Margin
Securities within the minimum
period specified in Annex 1 hereto or, if no period is there specified, such
minimum period as is
customarily required for the settlement or delivery of money. Margin
Securities or Equivalent Margin
Securities of the relevant kind.
The parlies may agree that, with respect to any Transaction, the provisions
of subparagraphs (a) to (g)
above shall not apply but instead that margin may be provided separately in
respect of that Transaction
in which case -
(e)
(0
(g)
(h)
(i) that Transaction shall not be taken into account when calculating
whether either party has a Net
Exposure;
(ii) margin shall be provided in respect of that Transaction in such maimer
as the parties may agree;
and
(iii) margin provided in respect of that Transaction shall not be taken into
account for the purposes
of subparagraphs (a) to (g) above.
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The parlies may agree that any Net Exposure which may arise shall be
eliminated not by Margin
Transfers under the preceding provisions of this paragraph but by the
repricing of Transactions under
subparagraph (j) below, the adjustment ofTransaclicHis under subparagraph
(k) below or a combination
of both these methods.
Where the parties agree that a Transaction is to be repriced under this
subparagraph, such repricing
shall be effected as follows •
(i) the Repurchase Date under the relevant Transaction (the "Original
Transaction") shall be
deemed to occur on the date on which the repricing is to be effected (the
"Repricing Date");
(ii) the parties shall be deemed to have entered into a new Transaction (the
"Repriced Transaction")
on the terms set out in (iii) to (vi) below;
(iii) the Purchased Securities under the Repriced Transaction shall be
Securities equivalent to the
Purchased Securities under the Original Transaction;
(iv) the Purchase Date under the Repriced Transaction shall be the Repricing
Date;
(v) the Purchase Price under the Repriced Transaction shall be such amount
as shall, when
multiplied by the Margin Ratio applicable to the Original Transaction, be
equal to the Market
Value of such Securities on the Repricing Date;
(vi) the Repurchase Dale, the Pricing Rate, the Margin Ratio and, subject as
aforesaid, the other
terms of the Repriced Transaction shall be identical to those of the
Original Transaction;
(vii) the obligations of the parties with respect to the delivery of the
Purchased Securities and the
payment of the Purchase Price under the Repriced Transaction shall be set
off against their
obligations with respect to the delivery of Equivalent Securities and
payment of the Repurchase
Price under the Original Transaction and accordingly only a net cash sum
shall be paid by one
party to the other. Such net cash sum shall be paid within the period
specified in subparagraph
(g) above.
(i)
(1)
1k) The adjustment of a Transaction (the "Original Transaction") under this
subparagraph shall be effected
by the parties agreeing that on the date on which the adjustment is to be
made (the "Adjustment Date")
7
Confidential
the Original Transaction shall be terminated and they shall enter into a new
EFTA01441395
Transaction (the
"Replacement Transaction") in accordance with the following provisions •
the Original Transaction shall be terminated on the Adjustment Date on such
terms as the
parties shall agree on or before the Adjustment Date;
the Purchased Securities under the Replacement Transaction shall be such
Securities as the
parties shall ^ree on or before the Adjustment Date (being Securities the
aggregate Market
Value of which at the Adjustment Date is substantially equal to the
Repurchase Price under
the Original Transaction at the Adjustment Dale multiplied by the Margin
Ratio applicable to
the Original Transaction);
the Purchase Date under the Replacement Transaction shall be the Adjustment
Date;
the other terms of the Replacement Transaction shall be such as the parties
shall agree on or
before the Adjustment Date; and
the obligations of the parties with respea to payment and delivery of
Securities on the
Adjusunent Date under the Original Transaction and the Replacement
Transaction shall be
settled in accordance with paragraph 6 within the minimum period specified
in subparagraph
(g) above.
(i)
(ii)
(iii)
(iv)
(V)
Income Payments
Unless otherwise eeed -
where the Term of a particular Transaction extends over an Income Payment
Date in respect
of any Securities subject to that Transaction. Buyer shall on the date such
Income is paid by
the issuer transfer to or credit to the account of Seller an amount equal to
(and in the same
currency as) the amount paid by the issuer:
where Margin Securities are transferred from one party ("the first party")
to the other party
("the second party") and an Income Payment Dale in respect of such
Securities occurs before
Equivalent Ma^in Securities are transferred by the second party to the first
party, the second
party shall on the dale such Income is paid by the issuer transfer to or
credit to the account of
the first party an amount equal to (and in the same currency as) the amount
paid by the issuer;
and for the avoidance of doubt references in this paragraph to the amount of
EFTA01441396
any Income paid by the
issuer of any Securities shall be to an amount paid without any withholding
or deduction for or on
account of taxes or duties notwithstanding that a payment of such Income
made in certain
circumstances may be subject to such a withholding or deduction.
5.
(i)
(ii)
Payment and Transfer
Unless otherwise agreed, all money paid hereunder shall be in immediately
available freely convertible
funds of the relevant currency. All Securities to be transferred hereunder
(i) shall be in suitable form for
transfer and shall be accompanied by duly executed instruments of transfer
or assignment in blank
(where required for transfer) and such other documentation as the transferee
may reasonably request, or
(ii) shall be transferred through the book entry system of Euroclear or
Clearslream, or (iii) shall be
transferred through any other agreed securities clearance system or (iv)
shall be transferred by any
other method mutually acceptable to Seller and Buyer.
Unless otherwise agreed, all money payable by one party to the other in
respect of any Transaction
shall be paid free and clear of. and without withholding or deduction for,
any taxes or duties of
whatsoever nature imposed, levied, collected, withheld or assessed by any
authority having power to
tax, unless the withholding or deduction of such taxes or duties is required
by law. In that event, unless
otherwise agreed, the paying parly shall pay such additional amounts as will
result in the net amounts
receivable by the other parly (after taking account of such withholding or
deduction) being equal to
such amounts as would have been received by it had no such taxes or duties
been required to be
withheld or deducted.
Unless otherwise agreed in writing between the parties, under each
Transaction transfer of Purchased
Securities by Seller and payment of Purchase Price by Buyer gainst the
transfer of such Purdiased
Securities shall be made simultaneously and transfer of Ivquivalent
Securities by Buyer and payment of
Repurchase Price payable by Seller against the transfer of such Equivalent
Securities shall be made
simultaneously.
6.
(a)
(b)
(c)
EFTA01441397
8
Confidential
Subject to and without prejudice to the provisions of subparagraph 6(c).
either party may from time to
time in accordance with market practice and in recognition of the practical
difficulties in arranging
simultaneous delivery of Securities and money waive in relation to any
Transaction its rights under this
Agreement to receive simultaneous transfer and/or payment provided that
transfer and/or payment
shall, notwithstanding such waiver, be made on the same day and provided
also that no such waiver in
respect of one Transaction shall affect or bind it in respect of any other
Transaaion.
The parties shall execute and deliver all necessary documents and lake all
necessary steps to procure
that all right, title and interest in any Purchased Securities, any
Equivalent Securities, any Margin
Securities and any Equivalent Margin Securities shall pass to the party to
which transfer is being made
upon transfer of the same in accordance with this Agre"ent, free from all
liens, claims, charges and
encumbrances.
Notwithstanding the use of expressions such as "Repurchase Dale ",
"Repurchase Price ", "margin ",
"Nel Margin". "Margin Raiio" and "subsiUuUon". which are used to reflect
terminology used in the
market for transactions of the kind provided for in this Agreement, all
right, title and interest in and to
Securities and money transferred or paid under this Agreement shall pass to
the transferee upon transfer
or payment, the obligation of the party receiving Purchased Securities or
Margin Securities being an
obligation to transfer Equivalent Securities or Equivalent Margin Securities.
Time shall be of the essence in this Agreement.
Subject to paragraph 10, all amounts in the same currency payable by each
party to the other under any
Transaction or otherwise under this Agreement on the same dale ^all be
combined in a single
calculation of a net sum payable by one party to the other and the
obligation to pay that sum shall be
the only obligation of either party in respect of those amounts.
Subject to paragraph 10, all Securities of the same issue, denomination,
currency and series,
transferable by each party to the other under any Transaction or hereunder
on the same date shall be
combined in a single calculation of a net quantity of Securities
transferable by oite party to the other
and the obligation to transfer the net quantity of Securities shall be the
only obligation of either party in
respect of the Securities so transferable and receivable.
EFTA01441398
If the parties have specified in Annex 1 hereto that this paragraph 6(j)
shall apply, each obligation of a
party under this Agreement (other than an obligation arising under paragraph
10) is subject to the
condition precedent that noite of those events specified in paragraph 10(a)
which are identified in
Annex I hereto for the purposes of this paragraph 6(j) (being events which,
upon the serving of a
Default Notice, would be an Event of Default with respect to the other
party) shall have occurred and
be continuing with respect to the other party.
(d)
(e)
(0
(g)
(h)
(i)
(1)
Contractual Currency
All the payments made in respect of the Purchase Price or the Repurchase
Price of any Transaction
shall be made in the currency of the Purchase Price (the "Contractual
Currency") save as provided in
paragraph KKcKii)' Notwithstanding the foregoing, the payee of any money
may. at its option, accept
lender thereof in any other currency, provided, however, that, to the extent
permitted by applicable law.
the obligation of the payer to pay such money will be discharged only to the
extent of the amount of the
Contractual Currency that such payee may, consistent with normal banking
procedures, purchase with
such other currency (after deduction of any premium and costs of exchange)
for delivery within the
customary delivery period for spot transactions in respect of the relevant
currency.
If for any reason the amount in the Contractual Currency received by a
party, including amounts
received after conversion of any recovery under any judgment or order
expressed in a currency other
than the Contractual Currency, falls short of the amount in the Contractual
Currency due and payable,
the party required to make the payment will, as a separate and independent
obligation, to the extent
permit!^ by applicable law, immediately transfer such additional amount in
the Contractual Currency
as may be necessary to compensate for the shortfall.
If for any reason the amount in the Contractual Currency received by a party
exceeds the amount of the
Contractual Currency due and payable, the party receiving the transfer will
refund promptly the amount
of such excess.
EFTA01441399
7.
(a)
(b)
(c)
9
Confidential
Sabstilulloi
A Transaction may at any time between the Purchase Date and Repurchase Date,
if Seller so requests
and Buyer so agrees, be varied by the transfer by Buyer to Seller of
Securities equivalent to the
Purchased Securities, or to such of the Purchased Securities as shall be
agreed, in exchange for the
transfer by Seller to Buyer of other Securities of such amount and
description as shall be agreed ("New
Purchased Securities") (being Securities having a Market Value at the dale
of the variation at least
equal to the Market Value of the Equivalent Securities transferred to
Seller).
Any variation under subparagraph (a) above shall be effected, subject to
paragraph 6(d), by the
simultaneous transfer of the Equivalent Securities and New Purchased
Securities concerned.
A Transaction which is varied under subparagraph (a) above shall thereaBer
continue in effect as
though the Purchased Securities under that Transaction consisted of or
included the New Purchased
Securities instead of the Securities in respect of which Equivalent
Securities have been transferred to
Seller.
Where either party has transferred Margin Securities to the other party it
may at any time before
Equivalent Margin Securities are transferred to It under paragraph 4 request
the other party to transfer
Equivalent Margin Securities to it in exchange for the transfer to the other
party of new Margin
Securities having a Market Value at the time of transfer at least equal to
that of such Equivalent Margin
Securities. Ifthe other party agrees to the request, the exchange shall he
effected, subject to paragraph
6(d), by the simultaneous transfer of the Equivalent Margin Securities and
new Margin Securities
concerned. Where either or both of such transfers is or are effected through
a settlement system in
circumstances which under the rules and procedures of that settlement system
give rise to a payment by
or for the account of one party to or for the account of the other party,
the parties shall cause such
payment or payments to be made outside that settlement system, for value the
same day as the
payments made through that settlement system, as shall ensure that the
EFTA01441400
exchange of Equivalent Margin
Securities and new Margin Securities effected under this subparagraph does
rtot give rise to any net
payment of cash by either party to the other.
8.
(a)
(b)
(c)
(d)
Representations
Each party represents and warrants to the other that
9
it is duly authorised to execute and deliver this Agreement, to enter into
the Transactions contemplated
hereunder and to perform its obligations hereunder and thereunder and has
taken all necessary action to
authorise such execution, delivery and performance:
(a)
it will engage in this Agreement and the Transactions contemplated hereunder
(other than Agency
Transactions) as principal;
(b)
the person signing this Agreement on its behalf is. and any person
r^resenting it in entering into a
Transaction will be, duly authorised to do so on its behalf:
(c)
it has obtained all authorisations of any governmental or regulatory body
required in connection with
this Agreement and the fransaciions contemplated hereunder and such
authorisations are in full force
and effect:
(d)
the execution, delivery and performance of this Agreement and the
Transactions contemplated
hereunder will not violate any law, ordinance, charter, by-law or rule
applicable to it or any agreement
by whid) it is bound or by whid) any of its assets are affected:
(e)
it has satisfied itself and will continue to satisfy itself as to the tax
implications of the Transactions
contemplated hereunder:
in connection with this Agreement and each Transaction -
unless there is a written agreement with the other party to the contrary, it
is not relying on any
advice (whether written or oral) of the other party, other than the
representations expressly set
out in this Agreement;
(0
(g)
(i)
10
EFTA01441401
Confidential
it has made and will make its own decisions regarding the entering into of
any Transaction
based upon its own judgment and upon advice from such professional advisers
as it has
deemed it necessary to consult;
it understands the tenns, conditions and risks of each Transaction and is
willing to assume
(financially and otherwise) those risks; and
(H)
<iii)
at the time of transfer to the other party of any Securities it will have
the full and unqualified right to
make such transfer and that upon such transfer of Securities the other party
will receive all right, title
and interest in and to those Securities free of any lien, claim, charge or
encumbrance.
On the date on which any Transaction is entered into pursuant hereto, and on
each day on which
Securities, Equivalent Securities. Maigin Securities or Equivalent Margin
Securities are to be
transferred under any Transaction. Buyer and Seller shall each be deemed to
repeat all the foregoing
representations. For the avoidance of doubt and notwithstanding any
arrangements which Seller or
Buyer may have with any third party, each party will be liable as a
principal for its obligations under
this Agreement and each Transaction.
(h)
Events of Default
If any of the following events (each an "Event of Default") occurs in
relation to either party (the
"Defaulting Party", the other party being the "non-DefauIting Party")
whether acting as Seller or
Buyer
10.
(a)
Buyer fails to pay the Purchase Price upon the applicable Purchase Dale or
Seller fails to pay
the Repurchase Price upon the applicable Repurchase Date, and (he non -
Defaulting Party
serves a Default Notice on the Defaulting Party; or
if the parlies have specified in Annex I hereto that this subpara^ph shall
apply. Seller fails to
deliver Purchased Securities on the Purchase Date or Buyer fails to deliver
Equivalent
Securities on the Repurchase Date, and the non-Defaulting Party serves a
Default Notice on
the Defaulting Party; or
Seller or Buyer fails to pay when due any sum payable under subparagraph (g)
or (h) below,
EFTA01441402
and the non-Defaulting Party serves a Default Notice on the Defaulting
Party; or
Seller or Buyer fails to comply with paragraph 4 and the non-Defaulting
Party serves a
Default Notice on the Defaulting Party; or
Seller or Buyer fails to comply with paragraph S and the non-Defaulting
Party serves a
Default Notice on the Defaulting Party; or
an Act of Insolvency occurs with respect to Seller or Buyer and (except in
the case of an Act
of Insolvency which is the presentation of a petition for winding -up or any
analogous
proceeding or the appointment of a liquidator or analogous officer of the
Defaulting Party in
which case no such notice shall be required) the non-Defaulting Party serves
a Default Notice
on the Defaulting Party; or
any representations made by Seller or Buyer are incorrect or untrue in any
material respect
when made or repeated or deemed to have been made or repeated, and (he non -
Defaulting
Party serves a Default Notice on the Defaulting Party; or
Seller or Buyer admits to the other that it is unable to, or intends not to,
perform any of its
obligations hereunder and/or in respea of any Transaction and the non -
Defaulting Party
serves a Default Notice on the Defaulting Party; or
Seller or Buyer is suspended or expelled from membership of or participation
in any securities
exchange or association or other self regulating organisation, or suspended
from dealing in
securities by any government agency, or any of the assets of either Seller
or Buyer or the
assets of investors held by, or to the order of, Seller or Buyer are
iransfeired or ordered to be
transferred to a uustec by a regulatory authority pursuant to any securities
regulating
legislation and the non-DcfauUing Party serves a Default Notice on the
Defaulting Party: or
Seller or Buyer fails to perform any other of its obligations hereunder and
does not remedy
such failure within 30 days after notice is given by the non-Defaulting
Party requiring it to do
so, and the non-Defaulting Party serves a Default Notice on the Defaulting
Party;
(i)
(ii)
(iii)
<iv)
(V)
(Vi)
EFTA01441403
(vii)
(viii)
(ix)
(X)
II
Confidential
then subparagraphs (b) to (0 below shall apply.
The Repurchase Date for each Transaction hereunder shall be deemed
immediately to occur and.
subject to the following provisions, all Cash Margin (including interest
accrued) shall be immediately
repayable and Equivalent Margin Securities shall be immediately deliverable
(and so that, where this
subparagraph applies, performance of the respective obligations of the
parties with respect to the
delivery of Securities, the payment of the Repurchase Prices for any
Equivalent Securities and the
repayment of any Cash Margin shall be effected only in accordance with the
provisions of
subparagraph (c) below).
The Default Market Values of the Equivalent Securities and any Equivalent
Margin Securities
to be transferred, the amount of any Cash Margin (including the amount of
interest accrued) to
be transferred and the Repurchase Prices to be paid by each parly shall be
established by the
non-Defaulling Party for all Transactions as at the Repurchase Date; and
on the basis of the sums so established, an account shall be taken (as at
the Repurchase Date)
of what is due from each party to the other under this Agreement (on the
basis that each
party's claim against the other in respect of the transfer to it of
Equivalent Securities or
Equivalent Margin Securities under this Agreement equals the Default Market
Value therefor)
and the sums due from one parly shall be set off against the sums due from
the other and only
the balance of the account shall be payable (by the party having the claim
valued at the lower
amount pursuant to the foregoing) and such balance shall be due and payable
on the next
following Business Day. For the purposes of this calculation, all sums not
denominated in the
Base Currency shall be converted into the Base Currency on the relevant date
at the Spot Rate
prevailing at the relevant time.
(b)
(c) (i)
(ii)
For the purposes of this Agreement, the "Default Market Value" of any
Equivalent Securities
EFTA01441404
or Equivalent Margin Securities shall be determined in accordance with
subparagraph (e)
below, and for this purpose •
the "Appropriate Market" means, in relation to Securities of any
description, the market which
is the most appropriate market for Securities of that description, as
determined by the non -
Defaulting Party;
the "Default Valuation Time" means, in relation to an Event of Default, the
close of business
in the Appropriate Market on the fifth dealing day after the day on which
that Event of Default
occurs or. where that Event of Default is the occurrence of an Act of
Insolvency in respect of
which under paragraph 10(a) no notice is required from the non-DefauIting
Party in order for
such event to constitute an Event of Default, the close of business on the
fifth dealing day after
the day on which the non-Defaulting Party first became aware of the
occurrence of such Event
of Default;
"Deliverable Securities" means Equivalent Securities or Equivalent Margin
Securities to be
delivered by the Defaulting Party;
"Net Value" means at any lime, in relation to any Deliverable Securities or
Receivable
Securities, the amount which, in the reasonable opinion of the non -
Defaulting Party,
represents their fair market value, having regard to such pricing sources
and methods (which
may include, without limitation, available prices for Securities with
similar maturities, terms
and credit characteristics as the relevant Equivalent Securities or
Equivalent Margin
Securities) as the non-Defaulling Parly considers apprt^riate. less, in the
case of Receivable
Securities, or plus, on the case of Deliverable Securities, all Transaction
Costs which would be
incurred in connection with the purchase or sale of such Securities;
"Receivable Securities" means Equivalent Securities or Equivalent Maifin
Securities to be
delivered to Che Defaulting Party; and
"Transaction Costs" in relation to any transaction contemplated in paragraph
10(d) or (e)
means the reasonable costs, commission, fees and expenses (including any
mark-up or mark-
down) that would be incurred in connection with the purchase of Deliverable
Securities or sale
of Receivable Securities, calculated on the assumption that the aggregate
thereof is the least
that could reasonably be expected to be paid in order to carry out the
EFTA01441405
transaction;
(d)
(i)
(ii)
(iii)
(iv)
(V)
(vi)
12
Confidential
If between the occurrence of the relevant Event of Default and the Default
Valuation Time the
non-Defaulting Party gives to the Defaulting Parly a written notice (a
"Default Valuation
Notice") which -
(A) slates that, since the occurrence of the relevant Event of Default, the
non-Defaulting Party
has sold, in the case of Receivable Securities, or purchased, in the case of
Deliverable
Securities, Securities which form part of the same issue and are of an
identical type and
description as those Equivalent Securities or Equivalent Margin Securities,
and that the
non*Defaulting Party elects to treat as the Default Maricet Value •
(aa) in the case of Receivable Securities, the net proceeds of such sate
after dedueling all
reasonable costs, fees and expenses incurred in connection therewith
(provided
that, where the Securities sold are not identical in amount to the Equivalent
Securities or Equivalent Mai^in Securities, the non-Defaulting Party may
either (x)
elect to (real such net proceeds of sale divided by the amount of Securities
sold and
multiplied by the amount of the Equivalent Securities or liquivalent Margin
Securities as the Default Market Value or (y) elect to treat such net
proceeds of
sale of the Equivalent Securities or 1-quivalent Margin Securities actually
sold as
the Default Market Value of that proportion of th
ℹ️ Document Details
SHA-256
68a0df42f49aaf088c4d25a43157c637ebffdb02aeccebce6e3d7ea88b31bd09
Bates Number
EFTA01441339
Dataset
DataSet-10
Document Type
document
Pages
122