THIS SUPPLEMENT (hereinafter referred to as the Supplement) to the Master Agreement (as defined
below) has been entered into between and by the following parties:
(1)
Raiffeisenbank a.s., with its head office at Hvězdova 1716/2b, Prague 4, zip code 140 78, Czech
Republic, IN 49240901, recorded in the Companies Register kept by the Municipal Court in Prague,
Section B, Insert 2051, (hereinafter referred to as Party A); and
________________
________________
(2)
________________
(hereinafter referred to as Party B)
(Party A and Party B hereinafter also collectively referred to as the Parties and individually as the Party).
WHEREAS:
(A)
The Parties entered into the Master Treasury Agreement, or - as the case may be - the amendments
thereof, for the purposes of trading on financial markets (hereinafter referred to as the “Master
Agreement“);
(B)
The Parties have executed between each other one or several Transactions (as defined in the Master
Agreement) that are regulated by the Master Agreement to the extent in which the Master Agreement
was incorporated into the terms of a certain Transaction or a certain type of Transaction whereas in
compliance with the Master Agreement it applies that the Master Agreement and the terms agreed
upon for all Transactions closed pursuant to the Master Agreement are designated as the Agreement;
(C)
There have been major changes in the laws of the Czech Republic and the European Union since the
signing day of the Master Agreement which have, besides other, a major impact on the rights and
obligations of the Parties, in particular Regulation (EU) No. 648/2012 of the European Parliament
and of the Council on OTC derivatives, central counterparties and trade repositories (hereinafter
referred to as “EMIR”), relevant supporting Commission Delegated Regulations (EU) and
Commission Implementing Regulations (EU) and other supporting regulations (hereinafter referred
to as “EMIR and Supporting Regulations”);
(D)
The intent of the Supplement is to mainly respond to these regulatory changes by modifying the
rights and obligations of the Parties arising from the Master Agreement to ensure the proper and
timely fulfilment of the obligations of the Parties arising from EMIR and supporting regulations, in
respect of both new Transactions and existing Transactions;
THE PARTIES HAVE AGREED AS FOLLOWS :
1.
INTERPRETATION OF THIS SUPPLEMENT
1.1
Unless explicitly defined in this Supplement, capitalized terms have the same meaning as
those in the Master Agreement.
1.2
The interpretation principles set out in the Product Terms that form part of the Master
Agreement (hereinafter referred to as the “Product Terms”) are used in this Supplement
similarly whereas it applies that the provisions of this Supplement (except for Annex 1) have
priority over the Product Terms.
1.3
Annex 1 of this Supplement amends and supplements the Product Terms.
1
2.
AMENDMENT OF THE AGREEMENT
The Agreement is amended by incorporating Annex 1 of this Supplement into the Master Agreement
which thus forms its integral part. Annex 1 also forms an integral part of this Supplement and the
Agreement.
3.
NFC REPRESENTATION
3.1
Party A does not make the NFC Representation.
3.2
Party B makes the NFC Representation.
3.3
For the purposes of Section 2(b) of Annex 1 of this Supplement, the address to which a
Representing Party or a Non-Representing Party should deliver any Clearing Status Notice,
Non-Clearing Status Notice, NFC+ Representation Notice, NFC Representation Notice or
Non-Representation Notice is as follows:
in relation to Party A: the address shown in the header of the Agreement or the address
shown at http://www.rb.cz/financni-trhy/strukturovane-produkty/kontakty/.
in relation to Party B: address communicated to Party A pursuant to Master Agreement.
3.4
For the purposes of electronic matching and counterparty recognition, the Parties’ DTCC
Account Numbers are as follows:
in relation to Party A: N/A unless Party A communicates otherwise.
in relation to Party B: N/A unless Party B communicates otherwise.
3.5
For the purposes of electronic matching and counterparty recognition, the Parties’ codes are as
follows:
in relation to Party A:
PRE-LEI: 31570010000000004460
in relation to Party B (non-required information if Party B is a person):
LEI (Legal Entity Identifier): __________________
CICI: _______________________
Other:
4.
5.
PORTFOLIO RECONCILIATION AND DISPUTE RESOLUTION
4.1
Party A is the Portfolio Data Sending Entity.
4.2
Party B is the Portfolio Data Receiving Entity.
4.3
With respect to Section 3(c) of Annex 1 of this Supplement, Party A or Party B appoints the
following Affiliate as its agent: N/A.
4.4
For the purposes of Section 3(c) of Annex 1 of this Supplement, Party A and Party B may use
a third party service provider.
REPORTING ROLE
5.1
Party A and/or Party B, as the case may be, will be required to report information in respect to
2
Relevant Transactions pursuant to the Reporting Obligation and in accordance with Section 1
of Annex 1 of this Supplement and this Section 5. In respect of each Relevant Transaction,
Party A and Party B agree that:
Party A and Party B or a third party provider of Party B will report (a) the Counterparty Data
in relation to Party A and Party B and (b) the Common Data, in each case by the deadline for
reporting the Relevant Transaction as specified in Article 9 of EMIR (“Reporting Deadline”)
and to the Relevant Trade Repository.
For the purposes of Section 1 of Annex 1 and this Section 5 and in compliance with Section 6
below, the “Relevant Trade Repository” in respect to a Relevant Transaction will be the Trade
Repository selected by the Reporting Party or a Reporting Delegate from time to time for such
type or class of Relevant Transaction or ESMA where no Trade Repository is available to
record the details of such Relevant Transaction.
6.
7.
5.2
The Reporting Party will notify the other Party upon its request of the Relevant Trade
Repository which it selects for the purposes of Section 1 of Annex 1 and this Part 5.
5.3
If a Reporting Delegate selects a Relevant Trade Repository (including, in the case of a central
counterparty authorised under Article 14 of EMIR or recognised under Article 25 of EMIR
(“CCP”), pursuant to its relevant rules, conditions, procedures, regulations, standard terms,
membership agreements, collateral addenda, notices and guidelines or other such documents
promulgated by the relevant CCP and amended and supplemented from time to time (“Rule
Set”), the Party which appointed such Reporting Delegate will notify the other Party of such
selection. Such notification will be effective on receipt: N/A.
REMEDIES FOR BREACH OF REPORTING OBLIGATIONS
6.1
Without prejudice to the rights, powers and remedies provided by law, failure by a Party to
take any action required by Section 1 of Annex 1 and/or Section 5 above, will not constitute
an Event of Default or an Event of Early Termination of the Agreement.
6.2
Without prejudice to Section 1(c) of Annex 1, if the Parties fail to agree on the Common Data
in accordance with Section 1(a) of Annex 1, then each Party is entitled to report the relevant
Common Data to the Relevant Trade Repository or to appoint a Reporting Delegate to make
such report on its behalf.
6.3
If the Reporting Party fails to report the Common Data and/or the Counterparty Data by the
Reporting Deadline in accordance with Section 5 above and the Non-Reporting Party is
subject to the Reporting Obligation then, without prejudice to Section 1(c) of Annex 1, the
Non-Reporting Party is nonetheless entitled to report the relevant Common Data and/or the
Counterparty Data in relation to it to the Relevant Trade Repository or to appoint a Reporting
Delegate to make such report on its behalf. Without prejudice to the rights, powers and
remedies provided by law, failure by a Party to take any action required by Section 1 of Annex
1 or Section 5 of this Supplement will not constitute an Event of Default or an Event of Early
Termination of the Agreement if it is caused by an error or omission of an administrative or
operational nature which is outside the Reporting Party’s control.
TIMELY CONFIRMATION
7.1
If EMIR and supporting regulations set out deadlines for sending, confirming and returning
Confirmations that are shorter than those set out in the Master Agreement, the deadlines in
EMIR and supporting regulations will apply. If EMIR and supporting regulations set out the
rights and obligations of the Parties that are different from those agreed upon in the Master
3
Agreement, the Parties must follow EMIR and supporting regulations.
7.2
8.
Party A and Party B are entitled to conclude a special agreement for purposes of electronic
communication.
CONFIDENTIALITY WAIVER
8.1
Notwithstanding anything to the contrary in the Agreement or any information non-disclosure
agreement, confidentiality agreement or any other agreement between the Parties, each Party
hereby consents to the disclosure of information:
(a)
to the extent required or permitted under, or made in accordance with, the provisions of
EMIR and any applicable supporting law, rule or regulation (“EMIR and Supporting
Regulations”) which mandate reporting and/or retention of transaction and similar
information or to the extent required or permitted under, or made in accordance with, any
order or directive in relation to EMIR and Supporting Regulations (or according to EMIR
and Supporting Regulations) regarding reporting and /or retention of transaction and similar
information issued by any authority or body in accordance with which the other Party is
required or accustomed to act (“Reporting Requirements”); or
(b)
to and between the other Party’s head office, branches or Affiliates, or any persons or
entities who provide services to such other Party or its head office, branches or Affiliates, in
each case, in connection with such Reporting Requirements.
Both Parties acknowledge that pursuant to EMIR and Supporting Regulations, regulators require
reporting of trade data to increase market transparency and enable regulators to monitor systemic
risk to ensure safeguards are implemented globally.
Both Parties further acknowledge that disclosures made pursuant hereto may include, without
limitation, the disclosure of trade information including a Party's identity (by name, address,
corporate affiliation, identifier or otherwise) to any Trade Repository or one or more systems or
services operated by any such Trade Repository ("TR") and any relevant regulators (including
without limitation, the ESMA and national regulators in the European Union) under EMIR and
Supporting Regulations and that such disclosures could result in certain anonymous transaction and
pricing data becoming available to the public. Both Parties further acknowledge that, for purposes of
complying with regulatory reporting obligations, a Party may use a third party service provider to
transfer trade information into a TR and that a TR may engage the services of a global trade
repository regulated by one or more governmental regulators. Both Parties also acknowledge that
disclosures made pursuant hereto may be made to recipients in a jurisdiction other than that of the
disclosing Party or a jurisdiction that may not necessarily provide an equivalent or adequate level of
protection for personal data as this Party’s home jurisdiction. For the avoidance of doubt, (i) to the
extent that applicable non-disclosure, confidentiality, bank secrecy, personal data protection or other
law prohibits, limits or modifies the requirements regarding disclosure of transaction and similar
information required or permitted to be disclosed as contemplated in this Agreement but permits a
Party or the Parties to waive such prohibition, limitation or requirements such requirements by
consent, the consent and acknowledgements provided herein shall be a consent by both Parties for
purposes of such law; (ii) any agreement between the Parties to maintain confidentiality of
information contained in this Agreement or in any non-disclosure, confidentiality or other agreement
will continue to apply to the extent that such agreement is not inconsistent with the disclosure of
information in connection with the Reporting Requirements as set out herein; and (iii) nothing herein
is intended to limit the scope of any other consent to disclosure separately given by each Party to the
other Party.
4
The consenting Party warrants that any third party to whom it owes a duty of confidence in respect
of the information disclosed has consented to the disclosure of that information.
8.2
9.
Section 4(a) of Annex 1 of this Supplement is amended by inserting the text “or any
inaccuracy of the representation in Section 8(1) of this Supplement” immediately after the
words “for purposes of compliance with Section 3 of Annex 1.”
OTHER PROVISIONS
9.1
Exclusively of the changes made based on this Supplement, the Agreement remains in force
and, starting on the day this Supplement comes into force, will form together with this
Supplement a single agreement made by the Parties.
9.2
All existing Transactions that were closed between the Parties and are subject to the Master
Agreement but were not duly settled as of the signing day of this Supplement will continue to
comply with the provisions of the Agreement as amended and supplemented by this
Supplement.
9.3
This Supplement is executed on the grounds that all existing Transactions that were closed
between the Parties and are subject to the Master Agreement but were not duly settled as of
the signing day of this Supplement as well as any future Transactions will form, together with
the Agreement and this Supplement, a single agreement made by the Parties starting on the
day this Supplement comes into force.
9.4
If, in connection with the Agreement or the Transactions, the Parties provided each other, or
only one Party was provided, with any collateral that was in effect and force as of the signing
day of this Supplement, such collateral will continue to be in full extent and will secure
relevant claims arising from the Agreement.
9.5
This Supplement has been drawn up in two counterparts. This Supplement has been drawn up
in Czech and in the English language. In case of discrepancy between the Czech text version
and English text version, the Czech version shall prevail.
9.6
This Supplement will come into force on the day it is signed by all Parties.
5
ANNEX 1
This Annex 1 amends and supplements the Product Terms that are part
2.
NFC Representation.
of the Master Agreement.
(a) NFC Representation.
1.
Reporting Obligations.
Each Representing Party represents to the other Party on each date and
(a) In respect to any Transaction that is subject to the obligation to report
at each time on which it enters into a Transaction (which representation
details of derivative contracts that are concluded, modified or terminated
will be, subject to Section 2(b) of Annex 1 below, deemed to be repeated
to any entity registered as a trade repository in accordance with Article
by a Representing Party at all times while such Transaction remains
55 of Regulation (EU) No 648/2012 of the European Parliament and of
outstanding) that:
the Council on OTC derivatives, central counterparties and trade
repositories ("EMIR") or recognised as a trade repository in accordance
(i) it is either (A) a non-financial counterparty (as such term
with Article 77 of EMIR ("Trade Repository") or to the European
is defined in EMIR) or (B) an entity established outside the
Securities and Markets Authority established by Regulation (EU) No
European Union that, to the best of its knowledge and belief,
1095/2010 of the European Parliament and of the Council ("ESMA") in
having given due and proper consideration to its status,
accordance with Article 9 of EMIR ("Reporting Obligation") (for the
would constitute a non-financial counterparty (as such term is
purpose of this Section 1 of Annex 1 and Section 5 of the Supplement
defined in EMIR) if it were established in the European
("Relevant Transaction"), the Parties agree that they will act in good
Union; and
faith to approve the information listed in Table 2 (Common Data) of (i)
the Annex to Commission Delegated Regulation (EU) No 148/2013, and
(ii) it is not subject to a clearing obligation pursuant to EMIR
(ii) the Annex to Commission Implementing Regulation (EU) No
(or, in respect of an entity under Section 2(a)(i)(B) of Annex
1247/2012 ("Reporting Annexes") ("Common Data") before it is
1 above, would not be subject to the clearing obligation if it
reported to the Relevant Trade Repository (as defined in Section 5 of the
were established in the European Union) in respect of such
Supplement).
Transaction. For the purposes of this Section 2(a)(ii) of this
representation, it is assumed that the Transaction is of a type
(b) If, in respect of any Relevant Transaction, only one Party
that has been declared to be subject to the clearing obligation
(“Reporting Party”) agrees to report the information listed in Table 1
in accordance with Article 4 of EMIR and is subject to the
(Counterparty Data) of the Reporting Annexes (“Counterparty Data”) in
clearing obligation in accordance with Article 4 of EMIR
relation to both Parties and/or the Common Data, the other Party (“Non-
(whether or not in fact this is the case), and that any
Reporting Party”):
transitional provisions in EMIR are ignored.
(b) Status and Change of Status.
(i) agrees that it will deliver to the Reporting Party the
information needed by the Reporting Party in time for the
(i) From (and including) the earlier of:
Reporting Party to comply with its obligation under Section 5
of the Supplement; and;
(A) the time at which a Representing Party is specified in the
Supplement as an NFC+ Party; and
(ii) represents to the Reporting Party that the information it
delivers under Section 1(b)(i) above is, at the time of
delivery, true, accurate and complete in every material
(B) the time at which a Representing Party has effectively
respect.
delivered to the other Party a Clearing Status Notice,
(c) If either Party identifies an error in any information previously
in either case (but excluding) the time at which a
provided to the other Party which is material to the Reporting
Representing Party has effectively delivered to the other
Obligation, such Party will notify such other Party as soon as reasonably
Party a Non-Clearing Status Notice, Section 2(a)(ii) of the
practicable and both Parties will use all reasonable efforts in good faith
NFC Representation is disapplied and does not form part of
and a commercially reasonable manner to resolve such error.
the NFC Representation in respect of the Party which has
been specified in the Supplement as an NFC+ Party or which
has effectively delivered a Clearing Status Notice.
Any information provided to a Trade Repository or the Relevant Trade
Repository (as defined in Section 5 of the Supplement) for the purposes
of complying with the Reporting Obligation is provided without
(ii) From (and including) the time at which an NFC+ Party has
prejudice to any present or future dispute between the Parties in relation
effectively delivered to the other Party a Non-Clearing Status Notice,
to the information provided.
Section 2(a)(ii) of the NFC Representation is applied and will form part
6
of the NFC Representation in respect of the Party which has effectively
Mitigation Payment Amount under Section 2(c)(i)(B)(II) of
delivered such Non-Clearing Status Notice.
this NFC Representation; and (II) approve the Balancing Risk
Mitigation Payment Amount, if any, payable between the
(iii) From (and including) the time at which a Representing Party has
Parties and the date on which any such Balancing Risk
effectively delivered to the other Party a Non-representation Notice,
Mitigation Payment Amount is to be paid.
Section 2(a)(i) and, where not already disapplied, Section 2(a)(ii) of the
NFC Representation is disapplied and does not form part of the NFC
(ii) If:
Representation in respect of the Party which has effectively delivered
such Non-representation Notice.
(A) subject to Section 2(c)(vi) of this NFC Representation,
any Relevant NFC Clearable Transaction will not be cleared
(iv) From (and including) the time at which a Non-representing Party
by the Relevant NFC Transaction Clearing Deadline Date
has effectively delivered to the other Party an NFC Representation
(including, without limitation, as a result of the Relevant
Notice, Section 2(a)(i) and Section 2(a)(ii) of the NFC Representation
NFC Transaction Clearing Deadline Date occurring before
are applied in respect of the Party which has effectively delivered such
the date on which both Parties are aware that the NFC
NFC Representation Notice.
Representation in respect of such Relevant NFC Clearable
Transaction was incorrect or misleading in any material
(v) From (and including) the time at which a Non-representing Party has
respect); or
effectively delivered to the other Party an NFC+ Representation Notice,
Section 2(a)(i) of the NFC Representation is applied but Section 2(a)(ii)
(B) the Risk Mitigation Techniques are not adhered to in
of the NFC Representation is not applied and will not form part of the
respect to any Relevant NFC Non-Clearable Transaction by
NFC Representation, in either case, in respect of the Party which has
the
effectively delivered such NFC+ Representation Notice.
Mitigation Deadline Date,
(c) Breach of NFC Representation
it will constitute an Event of Default or an Event of Early
Relevant
NFC
Non-Clearable
Transaction
Risk
Termination of the Agreement in respect of which (I) such
(i) If the representation in Section 2(a)(ii) of this NFC Representation
Relevant NFC Transactions will be the sole Transactions
proves to have been incorrect or misleading in any material respect
affected by such change; and (II) either Party will be entitled
when made (or deemed repeated) by a Representing Party, the Parties
to withdraw from such Relevant NFC Transactions.
will use all reasonable efforts, negotiating in good faith and a
commercially reasonable manner, to:
(iii) For the purposes of any determination pursuant to Section 6 of the
Product Terms following the designation of an Early Termination Date
(A) if the Relevant NFC Transaction Clearing Deadline Date
as a result of the Event of Default or the Event of Early Termination of
has not occurred in relation to any Relevant NFC Clearable
the Agreement: (A) it will be deemed that parts (i) and (ii) of the NFC
Transaction, (I) approve, implement and apply any
Representation apply to the Change of Status Party or the Change of
Supplements or modifications to the terms of such Relevant
Status Parties, as applicable (whether or not in fact this is the case); and
NFC Clearable Transaction and/or to take any steps, as
(B) the Settlement Amount in relation to the Relevant Transactions
applicable, to ensure that such Relevant NFC Clearable
affected by such a change will always be the amount equal to the loss
Transaction is Cleared by the Relevant NFC Transaction
incurred (expressed as a positive number) or gain realised (expressed as
Clearing Deadline Date, including any Supplements,
a negative number) by the Calculation Party as a result of the
modifications and/or steps, as applicable, to ensure the
termination of such Transactions.
payment of any Balancing Payment Amount under Section
2(c)(i)(A)(II); and (II) approve the Balancing Payment
(iv) Without prejudice to the rights, powers and remedies provided by
Amount, if any, payable between the Parties and the date on
law, neither the making by a Party of an incorrect or misleading NFC
which any such Balancing Payment Amount is to be paid;
Representation nor the failure of a Party to take any actions required by
and
Section 2(c)(i) of the NFC Representation to negotiate in good faith and
a commercially reasonable manner will constitute an Event of Default
(B) (I) approve, implement and apply any Supplements or
under the Agreement.
modifications to the terms of any Relevant NFC NonClearable Transaction, or to any related processes, and/or to
(v) Failure by a Party, for whatever reason, to take any action required
take any steps to ensure that the relevant Risk Mitigation
by Section 2(c)(i) of the NFC Representation will not prevent it
Techniques are adhered to in respect of each such Relevant
designating an Early Termination Date as a result of the occurrence of
NFC Non-Clearable Transaction as well as the Relevant NFC
an Event of Default or an Event of Early Termination of the Agreement
Non-Clearable Transaction Risk Mitigation Deadline Date,
in the case of the NFC Representation.
including any Supplements, modifications and/or steps, as
applicable, to ensure the payment of any Balancing Risk
(vi) With respect to a Relevant NFC Clearable Transaction and without
proves to have been incorrect or misleading in any material respect
prejudice to Section 2(c)(ii)(B) of the NFC Representation, in the event
when made (or deemed repeated) by such Representing Party.
that the Parties have taken action under Section 2(c)(i) of the NFC
Representation to ensure that such Relevant NFC Clearable Transaction
“cleared” means, in respect of a Transaction, that such Transaction has
is Cleared by the Relevant NFC Transaction Clearing Deadline Date but
been submitted (including where details of such Transaction are
such Relevant NFC Clearable Transaction is not Cleared by the Relevant
submitted) to a CCP for clearing in a relevant CCP Service and that such
NFC Transaction Clearing Deadline Date for reasons set out in any
CCP has become a party to a resulting or corresponding transaction, as
agreement on the execution of a Relevant NFC Clearable Transaction
applicable pursuant to such CCP’s Rule Set.
(howsoever
described)
between
the
Parties
despite
the
NFC
Representation, the consequences of such Relevant NFC Clearable
"Clearing Status Notice" means a notice in writing from a Representing
Transaction not being Cleared by the Relevant NFC Transaction
Party to the other Party specifying that, in respect of such Representing
Clearing Deadline Date will be the consequences set out in the relevant
Party, Section 2(a)(ii) of the NFC Representation is not applied and will
agreement on the execution of a Relevant NFC Clearable Transaction
not form part of the NFC Representation.
(howsoever
described)
between
the
Parties
despite
the
NFC
Representation and an Event of Default or an Event of Early
"effectively delivered" means, with respect to a Clearing Status Notice,
Termination of the Agreement will not apply to the NFC Representation.
Non-Clearing Status Notice, NFC Representation Notice, NFC+
Representation Notice or Non-representation Notice in the manner set
(d) Definitions. As used in Section 2:
out in Section 7 of the Product Terms provided that: (1) a Clearing
Status Notice, Non-Clearing Status Notice, NFC Representation Notice,
"Balancing Payment Amount" means, with respect to a Relevant NFC
NFC+ Representation Notice or Non-representation Notice will be
Clearable Transaction, the amount, if any, required to be paid between
delivered to the address set out for this purpose in the Supplement,
the Parties (which, for the avoidance of doubt, may be payable by or to a
unless no such address is specified for this purpose in the Supplement in
Change of Status Party) in order to reflect the difference between (1) the
which case it will be delivered to the address agreed between the Parties
pricing of the Relevant NFC Clearable Transaction by reference to the
in respect of the Agreement; and (2) delivery of a Clearing Status
terms of such Relevant NFC Clearable Transaction immediately prior to
Notice, Non-Clearing Status Notice, NFC Representation Notice, NFC+
any Supplements or modifications agreed by the Parties pursuant to
Representation Notice or Non-representation Notice will be deemed
Section 2(c)(i)(A)(I) above and (2) the pricing of the Relevant NFC
effective on the date that it is delivered, irrespective of whether such
Clearable Transaction by reference to the terms of such Relevant NFC
date is a Business Day in the city specified in the address provided by
Clearable Transaction immediately following any Supplements or
the recipient of such notice.
modifications agreed between the Parties pursuant to Section
2(c)(i)(A)(I) above.
"NFC Representation" means the representation set out in Section 2(a)
above.
"Balancing Risk Mitigation Payment Amount" means, with respect to a
Relevant NFC Non-Clearable Transaction, the amount, if any, required
"NFC Representation Notice" means a notice in writing from a Non-
to be paid between the Parties (which, for the avoidance of doubt, may
representing Party to the other Party specifying that, in respect of such
be payable by or to a Change of Status Party) in order to reflect the
Non-representing Party, Section 2(a)(i) and Section 2(a)(ii) of the NFC
difference between (1) the pricing of the Relevant NFC Non-Clearable
Representation are applied.
Transaction by reference to the terms of such Relevant NFC NonClearable Transaction immediately prior to any Supplements or
"NFC+ Party" means any Party which is specified in the Supplement as
modifications agreed by the parties pursuant to Section 2(c)(i)(B)(I)
such or which has effectively delivered to the other Party a Clearing
above and (2) the pricing of the Relevant NFC Non-Clearable
Status Notice or an NFC+ Representation Notice and, in either case, in
Transaction by reference to the terms of such Relevant NFC Non-
respect of which Section 2(a)(ii) of this NFC Representation has not
Clearable Transaction immediately following any Supplements or
subsequently been applied or a Non-representation Notice has not
modifications agreed between the parties pursuant to Section
subsequently been delivered.
2(c)(i)(B)(I) above.
"NFC+ Representation Notice" means a notice in writing from a Non"CCP" means any central clearing house authorised under Article 14 of
representing Party to the other Party specifying that, in respect of such
EMIR or recognised under Article 25 of EMIR.
Non-representing Party, Section 2(a)(i) of the NFC Representation is
applied but that Section 2(a)(ii) of the NFC Representation is not applied
"CCP Service" means in respect of a certain CCP, an over-the-counter
and will not form part of the NFC Representation.
derivative clearing service offered by such CCP.
"Change of Status Party" means a Representing Party in respect of
"Non-Clearing Status Notice" means a notice in writing from a NFC+
which the representation in Section 2(a)(i) of the NFC Representation
Party to the other Party specifying that, in respect of such NFC+ Party,
Section 2(a)(ii) of the NFC Representation is applied and will form part
and, in either case, in respect of which the NFC Representation has not
of the NFC Representation.
subsequently been disapplied.
"Non-Representation Notice" means a notice in writing from a
"Risk Mitigation Techniques" means the risk mitigation techniques for
Representing Party to the other Party specifying that, in respect of such
OTC derivative transactions set out in Article 11 of EMIR as
Representing Party, Section 2(a)(i) and, where not already disapplied,
supplemented by Chapter VIII of Commission Delegated Regulation
Section 2(a)(ii) of the NFC Representation is disapplied and does not
(EU) No 149/2013.
form part of the NFC Representation.
"Rule Set" means, with respect to a CCP Service, the relevant rules,
"Non-Representing Party" means any Party which is specified in the
conditions, procedures, regulations, standard terms, membership
Supplement as a party that does not make the NFC Representation and
agreements, collateral addenda, notices, guidelines or other such
in respect of which the NFC Representation has not subsequently been
documents promulgated by the relevant CCP and amended and
applied.
supplemented from time to time.
"Relevant NFC Clearable Transaction" means any Transaction (1) in
respect of which the representation in Section 2(a)(ii) of the NFC
3.
Portfolio Reconciliation and Dispute Resolution.
Representation was incorrect or misleading in any material respect when
made (or deemed repeated) by a Representing Party and (2) which is
(a) Agreement to Reconcile Portfolio Data. The Parties agree to
subject to the clearing obligation pursuant to EMIR.
reconcile portfolios as required by the portfolio reconciliation risk
mitigation techniques for OTC derivative transactions set out in Article
"Relevant NFC Non-Clearable Transaction" means any Transaction (1)
11(1)(b) of EMIR as supplemented by Article 13 of Chapter VIII of
in respect of which the representation in Section 2(a)(ii) of the NFC
Commission Delegated Regulation (EU) No. 149/2013 (“Portfolio
Representation was incorrect or misleading in any material respect when
Reconciliation Risk Mitigation Techniques“).
made (or deemed repeated) by a Representing Party and (2) which is
subject to the Risk Mitigation Techniques.
(i) One-way Delivery of Portfolio Data. If one Party is specified in the
Supplement as a Portfolio Data Sending Entity and the other Party is
"Relevant NFC Non-Clearable Transaction Risk Mitigation Deadline
specified in the Supplement as a Portfolio Data Receiving Entity:
Date" means the later of (1) the sixth Business Day following the date
on which both parties are aware that the representation in Section
(A) on each Data Delivery Date, the Portfolio Data Sending
2(a)(ii) of the NFC Representation was incorrect or misleading in any
Entity will provide Portfolio Data to the Portfolio Data
material respect when made (or deemed repeated) by a Representing
Receiving Entity;
Party and (2) the last day of any transitional period provided in
published official instructions or opinions, if any, from ESMA or the
(B) on each Portfolio Reconciliation Due Date, the Portfolio
European Commission in respect of the implementation of the relevant
Data Receiving Entity will perform a Data Reconciliation;
Risk Mitigation Techniques following the change in status of a nonfinancial counterparty (as such term is defined in EMIR) or an entity
(C) if the Portfolio Data Receiving Entity identifies one or
established outside the European Union that would constitute a non-
more discrepancies which such party determines, acting
financial counterparty (as such term is defined in EMIR) if it were
reasonably and in good faith, are material to the rights and
established in the European Union from an entity not subject to the
obligations of the parties in respect of one or more Relevant
clearing obligation pursuant to EMIR to an entity subject to the clearing
Transaction(s), it will notify the other Party in writing as
obligation pursuant to EMIR.
soon as reasonably practicable and the Parties will consult
with each other in an attempt to resolve such discrepancies in
"Relevant NFC Transaction" means any Relevant NFC Non-Clearable
a timely fashion for so long as such discrepancies remain
Transaction and any Relevant NFC Clearable Transaction.
outstanding, using, without limitation, any applicable
updated reconciliation data produced during the period in
"Relevant NFC Transaction Clearing Deadline Date" means the date by
which such discrepancy remains outstanding; and
which the Relevant NFC Transaction is, or was, required to be cleared in
accordance with EMIR.
(D) if the Portfolio Data Receiving Entity does not notify the
Portfolio Data Sending Entity that the Portfolio Data contains
"Representing Party" means any Party which is specified in the
discrepancies by 4.00 p.m. local time in the place of business
Supplement as a Party making the NFC Representation (which party
of the Portfolio Data Sending Entity on the fifth Joint
may include a NFC+ Party) or who has effectively delivered to the other
Business Day following the Portfolio Reconciliation Due
Party a NFC Representation Notice or a NFC+ Representation Notice
Date or the date on which the Portfolio Data Sending Entity
provided such Portfolio Data to the Portfolio Data Receiving
Entity (whichever comes later), the Portfolio Data Receiving
(ii) subject to the other Party’s consent (such consent not be
Entity will be deemed to have affirmed such Portfolio Data.
unreasonably withheld or delayed), (x) an entity other than an Affiliate
as agent and/or (y) a qualified and duly mandated third party service
(ii) Exchange of Portfolio Data. If both Parties are specified in the
provider.
Supplement as Portfolio Data Sending Entities:
A Party may indicate in the Supplement that it may use a third party
(A) on each Data Delivery Date, each Party will provide
service provider.
Portfolio Data to the other Party;
(d) Dispute Identification and Resolution Procedure. The Parties agree
(B) on each Portfolio Reconciliation Due Date each Party
that they will use the following procedure to identify and resolve
will perform a Data Reconciliation; and
Disputes between them:
(C) if a Party identifies one or more discrepancies which such
(i) either Party may identify a Dispute by sending a Dispute Notice to
Party determines, acting reasonably and in good faith, are
the other Party;
material to the rights and obligations of the Parties in respect
of one or more Relevant Transaction(s), it will notify the
(ii) on or following the Dispute Date, the parties will consult in good
other Party in writing as soon as reasonably practicable and
faith in an attempt to resolve the Dispute in a timely manner, including,
the Parties will consult with each other in an attempt to
without limitation, by exchanging any relevant information and by
resolve any such discrepancies in a timely fashion for so long
identifying and using any Agreed Process which can be applied to the
as such discrepancies remain outstanding, using, without
subject of the Dispute or, where no such Agreed Process exists or the
limitation, any applicable updated reconciliation data
parties agree that such Agreed Process would be unsuitable, determining
produced during the period in which such discrepancy
and applying a resolution method for the Dispute; and
remains outstanding.
(iii) with respect to any Dispute that is not resolved within five Joint
(b) Change of Status. Each Party may change its designation with the
Business Days of the Dispute Date, the Parties will refer issues
written consent of the other Party (such consent not to be unreasonably
internally to appropriately senior members of staff of such Party or of its
withheld or delayed and for this purpose the Parties agree, without
Affiliate, adviser or agent in addition to actions under (ii) immediately
limitation, that it will not be unreasonable for a Party to withhold
above (including actions under any Agreed Process identified and used
consent where consent would result in the other Party having different
under (ii) immediately above) and to the extent such referral has not
designations in respect of such Party and one or more Affiliates of such
occurred as a result of action under (ii) immediately above (including
Party).
any Agreed Process).
If a Party believes, acting reasonably and in good faith that the Parties
(e) Internal Procedures for Recording and Monitoring Disputes. Both
are required to perform Data Reconciliation at a greater or lesser
Parties agree that, to the extent the Dispute Resolution Risk Mitigation
frequency than that being used by the Parties at such time, it will notify
Techniques apply to both Parties, each Party will have internal
the other Party of such in writing, providing evidence on request. From
procedures and processes in place to record and monitor any Dispute for
the date such notice is effectively delivered, such greater or lesser
as long as the Dispute remains outstanding.
frequency will apply and the first following Portfolio Reconciliation
Due Date will be the earlier of the following two dates: the date agreed
(f) Relationship to Other Portfolio Reconciliation and Dispute
between the Parties or the last Joint Business Day in the Portfolio
Resolution Procedures. This Section 3 and any action or inaction of
Reconciliation Period starting on the date on which the immediately
either Party in respect of it are without prejudice to the rights or
preceding Data Reconciliation occurred (or, if no Joint Business Day
obligations the Parties may possess in respect of each other under any
occurs which is within such Portfolio Reconciliation Period and is on or
Agreed Process or other contractual agreement, by operation of law or
following the date such notice is effective, the first Joint Business Day
otherwise. In particular, but without limitation, (a) any valuation in
following the later of the following two dates: the end of such Portfolio
respect of one or more Relevant Transactions for the purposes of this
Reconciliation Period or the date such notice is effective).
Section 3 will be without prejudice to any other valuation with respect to
such Relevant Transaction(s) made for collateral, close out, dispute or
(c) Use of agents and third party service providers. For the purposes of
other purpose; (b) the Parties may seek to identify and resolve issues and
performing all or part of the actions under Sections 3(a) and (b) of
discrepancies between themselves before either Party delivers a Dispute
Annex 1, each Party may appoint:
Notice; and (c) nothing in this Section 3 obliges a Party to deliver a
Dispute Notice following the identification of any such issue or
(i) an Affiliate to act as its agent, immediately on written notice to the
discrepancy (notwithstanding that such issue or discrepancy may remain
other Party (including, without limitation, by naming the Affiliate as
unresolved) or limits the rights of the Parties to serve a Dispute Notice,
agent in the Supplement); and/or
to commence or continue an Agreed Process (whether or not any action
under Section 3(d) of Annex 1 has occurred) or otherwise to pursue any
dispute resolution process in respect of any such issue or discrepancy
“Dispute Notice” means a notice in writing which states that it is a
(whether or not any action under Section 3(d) of Annex 1 has occurred).
dispute notice for the purposes of Section 3(d) of Annex 1 and which
sets out in reasonable detail the issue in dispute (including, without
4.
Common Provisions.
limitation, the Relevant Transaction(s) to which the issue relates).
(a) Remedies for Breach. Without prejudice to the rights, powers and
“Dispute Resolution Procedure” means the identification and resolution
remedies provided by law, failure by a Party to take any actions required
procedure set out in Section 3(d) of Annex 1.
by or to otherwise comply with Section 3 of Annex 1, will not constitute
an event of default in respect of such Party or any other event which
"Dispute Resolution Risk Mitigation Techniques" means the dispute
permits either Party to terminate any Relevant Transaction or other
resolution risk mitigation techniques for OTC derivative transactions set
Transaction under this Agreement.
out in Article 11(1)(b) of EMIR as supplemented by Article 15 of
Chapter VIII of Commission Delegated Regulation (EU) No 149/2013.
(b) Definitions. For the purposes of Sections 3 and 4 of Annex 1:
“Joint Business Day” means a day that is a Business Day in respect of
"Agent" means an entity appointed to act solely on the appointing
both Parties.
Party’s behalf to deal with the other Party in relation to all or part of the
actions under the relevant provision.
"Key Terms" means, with respect to a Relevant Transaction and a Party,
the valuation of such Relevant Transaction and such other details the
"Affiliate" means, in relation to any person, any entity controlled,
relevant Party deems relevant which may include the effective date, the
directly or indirectly, by the person, any entity that controls, directly or
scheduled maturity date, any payment or settlement dates, the notional
indirectly, the person or any entity directly or indirectly under common
value of the contract and currency of the Relevant Transaction, the
control with the person. For this purpose, “control” of any entity or
underlying instrument, the position of the counterparties, the business
person means ownership of a majority of the voting rights of the entity
day convention and any relevant fixed or floating rates of the Relevant
or person.
Transaction. For the avoidance of doubt, "Key Terms" do not include
details of the calculations or methodologies underlying any term.
"Agreed Process" means any process agreed between the Parties in
respect of a Dispute (other than the Dispute Resolution Procedure)
"Portfolio Data" means, in respect of a Party providing or required to
including, without limitation, the process in Section 5.2 of the Master
provide such data, the Key Terms in relation to all outstanding Relevant
Agreement, as may be amended between the Parties.
Transactions between the Parties in a form and standard that is capable
of being reconciled, with a scope and level of detail that would be
“Data Delivery Date” means each date agreed as such between the
reasonable to the Portfolio Data Sending Entity if it were the receiving
Parties provided that, in the absence of such agreement, the Data
Party. Unless otherwise agreed between the Parties, the information
Delivery Date will be the Joint Business Day immediately prior to the
comprising the Portfolio Data to be provided by a Party on a Data
Portfolio Reconciliation Due Date.
Delivery Date will be prepared as at the close of business on the
immediately preceding Business Day of, and as specified in writing by,
"Data Reconciliation" means, in respect of a Party receiving Portfolio
the Party providing the Portfolio Data.
Data, a comparison of the Portfolio Data provided by the other Party
against such Party’s own books and records of all outstanding Relevant
"Portfolio Reconciliation Requirements" means the requirements one or
Transactions between the Parties in order to identify promptly any
both Parties are subject to in accordance with the Portfolio
misunderstandings of Key Terms.
Reconciliation Risk Mitigation Techniques.
"Dispute" means any dispute between the Parties (a) which, in the sole
"Portfolio Reconciliation Due Date" means each date agreed as such
opinion of the Party delivering the relevant Dispute Notice, is required
between the Parties provided that the Portfolio Reconciliation Due Date
to be subject to the Dispute Resolution Procedure (or other Agreed
will be the Portfolio Reconciliation Fallback Date where either (a) no
Process) pursuant to the Dispute Resolution Risk Mitigation Techniques;
date is agreed or (b) the agreed date occurs after the Portfolio
and (b) in respect of which a Dispute Notice has been effectively
Reconciliation Fallback Date.
delivered.
"Portfolio Reconciliation Fallback Date" means: (a) in respect of the
"Dispute Date" means, with respect to a Dispute, the date on which a
Portfolio Reconciliation Period starting on the Portfolio Reconciliation
Dispute Notice is effectively delivered by one Party to the other Party
Requirement Start Date, the last Joint Business Day in such Portfolio
save that if, with respect to a Dispute, both Parties deliver a Dispute
Reconciliation Period; and, otherwise, (b) the last Joint Business Day in
Notice, the date on which the first in time of such notices is effectively
the Portfolio Reconciliation Period starting on the calendar day
delivered will be the Dispute Date. Each Dispute Notice will be
immediately following the last calendar day of the immediately
effectively delivered if delivered in the manner agreed between the
preceding Portfolio Reconciliation Period. If there is no Joint Business
Parties for the giving of notices in respect of this Agreement.
Day in a Portfolio Reconciliation Period, the Portfolio Reconciliation
Due Date will be the first Joint Business Day following the end of this
“Portfolio Reconciliation Requirement Start Date” means the first
Portfolio Reconciliation Period.
calendar day on which the Portfolio Reconciliation Requirements apply
to one or both of the Parties and Section 3 of Annex 1 applies to the
“Portfolio Reconciliation Period” means, with respect to the Parties:
Parties.
(a) if the Portfolio Reconciliation Requirements require Data
“Relevant Transaction” means any transaction which is subject to the
Reconciliation to occur each business day, one Joint Business Day;
Portfolio Reconciliation Risk Mitigation Techniques and/or the Dispute
Resolution Risk Mitigation Techniques.
(b) if the Portfolio Reconciliation Requirements require Data
Reconciliation to occur once per week, one calendar week;
“third party service provider” means an entity that the Parties agree will
perform all or part of the actions under the relevant provision for both
(c) if the Portfolio Reconciliation Requirements require Data
Reconciliation to occur once per quarter, three calendar months; or
(d) if the Portfolio Reconciliation Requirements require Data
Reconciliation to occur once per year, one calendar year.
Parties.
SIGNATURE PAGE OF THE SUPPLEMENT
Raiffeisenbank a.s.
Signature: _______________________________
Signature: ______________________________
Name:
Name:
Position:
Position:
_____________________
Signature: _______________________________
Signature: ______________________________
Name:
Name:
Position:
Position:
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