THIS DELEGATED REPORTING SERVICE AGREEMENT (the Agreement )

Transcription

1 THIS DELEGATED REPORTING SERVICE AGREEMENT (the Agreement ) BETWEEN: (1) (the "Client") and (2) ING Belgium SA/NV (the "Bank") INTRODUCTION (A) (B) (C) the Client and the Bank have entered into or envisage entering into one or more Transactions (as defined herein); pursuant to the EMIR Legislation (as defined herein), each of the Bank and the Client is required to report such Transactions (or any modification or termination thereof) to a Trade Repository (as defined herein); the Client wishes to delegate its Reporting Obligation (as defined herein) to the Bank and the Bank agrees to report Transactions on behalf of the Client under the terms and conditions of this Agreement. THE PARTIES AGREE AS FOLLOWS: 1. DEFINITIONS 1.1 In this Agreement: "EMIR" means Regulation (EU) no. 648/2012 of the European Parliament and the Council on OTC derivatives, central counterparties and trade repositories, as amended or re-enacted from time to time. "EMIR Legislation" means EMIR and any applicable supporting law, rule, regulation or official guidance thereunder (including without limitation any regulatory technical standards or implementing technical standards, or any associated guidance issued by the EU Commission or the European Securities Markets Authority (ESMA)) made or issued under, pursuant to or otherwise with respect to EMIR, as amended or re-enacted from time to time. "LEI" means an unique, temporary or definitive, code identifying the Bank or the Client as the case may be. "Reporting Obligation" means the reporting obligations as set out in Article 9 of EMIR and further elaborated in the EMIR Legislation. "Trade Repository" means a legal entity selected by the Bank from time to time that centrally collects and maintains the records of derivatives transactions and which has been registered or recognized in accordance with the EMIR Legislation and/or one or more systems or services operated by any such legal entity, or in the absence of such a legal entity, ESMA

2 "Transactions" means an "OTC derivative" or "OTC derivative contract" as defined in Article 2(7) of EMIR to which the Bank and the Client are both parties, excluding, for the avoidance of doubt, (i) any derivatives traded on a regulated market or an equivalent market outside the European Union and (ii) any derivatives transactions that are not subject to the EMIR Legislation. 2. INTERPRETATION All words and expressions used in this Agreement which are not otherwise defined herein shall have the same meaning ascribed to them in the EMIR Legislation. 3. APPOINTMENT 3.1 Upon and subject to the terms of this Agreement, the Client hereby delegates to the Bank the Client's Reporting Obligation in respect of the Transactions. 3.2 The Bank hereby: agrees to report the Transactions on behalf of the Client; agrees to provide the services described in this Agreement in good faith, using all due skill, care and diligence to be expected from a professional financial institution and in accordance with the terms of this Agreement. 4. REPORTING SERVICE 4.1 The Bank shall, subject to Clause 5 below, use its reasonable efforts to report (also on behalf of the Client) the details of each Transaction and of any modification or termination thereof to a Trade Repository within the applicable timeframes prescribed by and in accordance with the EMIR Legislation. The Bank may report the Transactions to different Trade Repositories The Bank will be the UTI (Unique Trade Identifier) generating party with respect to each Transaction reported to a Trade Repository (also on behalf of the Client). 4.3 As soon as operationally possible, the Bank will provide the Client with an overview of the Transactions reported by the Bank on behalf of the Client on a regular basis. 5. CLIENT UNDERTAKINGS, OBLIGATIONS AND INDEMNITY 5.1 The Client represents and warrants that: it has full power and authority to enter into this Agreement; it has complied with and will at all times continue to comply with all laws, rules and regulations or court and governmental orders by which it is bound or to which it is subject in connection with the execution and performance of this Agreement; the execution, delivery and performance of its duties under this Agreement will not conflict with or result in any breach of violation of any terms, conditions or provisions of any applicable law, its statutory documents or implementing - 2 -

3 legislation or any order, writ, judgment or decree of any governmental authority to which it is subject or by which it is bound; the information and data provided by it to the Bank from time to time are complete and accurate; each Transaction is for hedging purposes, unless it informs the Bank otherwise in a timely manner. 5.2 If the Client fails to provide the Bank with any information or data needed or requested in a timely manner for whatever reason, and the Bank is not able to report the relevant Transaction(s) on the Client's behalf, the Bank shall notify the Client accordingly. The Client shall (a) be entitled to report such Transaction(s) to a Trade Repository itself (directly or through an agent), (b) notify the Bank and provide the Bank with the details of the Transaction(s) as reported by it to avoid duplication of reporting and (c) not have any claims against the Bank for breach of contract or otherwise in such an event. 5.3 The Client shall: provide all such data and information as the Bank may reasonably request for the purpose of reporting each Transaction in accordance with this Agreement and the EMIR Legislation in a timely manner; agree with the Bank in a timely manner the relevant common data (as prescribed by the EMIR Legislation) with respect to each Transaction; provide the Bank with its temporary or definitive LEI in a timely manner; refrain from reporting Transaction(s) to a Trade Repository either directly or indirectly except as provided in this Agreement; immediately inform the Bank if any information provided by it or any representation or warranty given by it under this Agreement is no longer accurate; cooperate promptly and fully with the Bank in responding to any regulatory or compliance examinations or inspections (including information requests) relating to any Transaction brought by any governmental or regulatory authorities having appropriate jurisdiction, including giving such materials and providing such information promptly upon request by the Bank. 5.4 The Client acknowledges and agrees that: (i) it remains responsible for the accuracy of the information and data submitted on its behalf by the Bank and (ii) errors in entries due to system or human failures and errors are inevitable and both parties will act reasonably and in good faith to identify and rectify them in a timely manner; the Bank can in no event give any assurance, representation or guarantee to the Client that the Bank's services pursuant to this Agreement will at all times satisfy the Reporting Obligation; - 3 -

4 5.4.3 it shall remain responsible for complying with its own recordkeeping obligations under the EMIR Legislation; and it shall remain responsible for complying with regulatory obligations which it is subject to. 5.5 The Client shall indemnify the Bank for, and hold the Bank harmless against, any duly documented damages, expenses, costs and other liabilities (for the avoidance of doubt, including VAT and other taxes as well as any reasonable legal costs and out of pocket expenses) that the Bank may suffer or incur or which may be alleged against it as a result of the representations and warranties given by the Client hereunder being incorrect or incomplete, or as a result of a failure or alleged failure by the Client to comply with any of its obligations under this Agreement or the EMIR Legislation, unless such failure is entirely due to the Bank's gross negligence, willful default or fraud. 6. FEES, COSTS AND EXPENSES 6.1 Subject to Clause 7.2, the Bank will be entitled to charge the Client fees for its services under this Agreement. If applicable, such fees shall be calculated and the invoicing frequency of such fees shall be set out in the Fee Schedule which may be updated from time to time. 6.2 The Client shall promptly pay to the Bank any duly documented fees and costs charged to or incurred by it in respect of the provision of its services under this Agreement. 7. AMENDMENT 7.1 Except with respect to an amendment of or modification to the Fee Schedule pursuant to the provisions of Clause 7.2, any amendment, modification or waiver of the Agreement shall only be effective if made in writing between the Bank and the Client. 7.2 The Bank may unilaterally amend or modify the Fee Schedule at any time provided it informs the Client in writing at least one (1) month before such amendment or modification takes effect. 8. TERM AND TERMINATION 8.1 The Agreement is entered into for an indefinite period of time, unless terminated earlier by notice in accordance with this Clause The parties may terminate this Agreement at any time without penalty by giving at least one (1) month s prior written notice to the other party. 8.3 On termination of this Agreement the Client shall promptly pay to the Bank all outstanding fees, expenses and other monies accrued up to the date of such termination. 8.4 Upon termination of this Agreement in accordance with this Clause 8, the rights and obligations of the parties under this Agreement shall terminate and be of no future - 4 -

5 effect, except for clauses 5.1, 5.4 and 5.5, Clause 8.3 and Clause 10, which shall remain in full force and effect. 9. NOTICES A notice under or in connection with this Agreement (a "Notice") shall be in writing and shall be sent to the party due to receive the Notice by the following means: (i) if sent to the Bank: EMIR.Reporting@ingbank.com for notices and communications in relation to Clause 4.3; For all other purposes : gpc.belgian.doc@ing.be or By mail to the following postal address: ING Belgium SA/NV, Credit Risk Management - CCRM Support Att. Jean Luc Devos (MA 2 +2) Avenue Marnixlaan Brussels (ii) if sent to the Client: to the address provided by the Client on the signature page, or if the Client has not provided such details, the address provided to the Bank in connection with the relevant Transaction(s), or to another address specified by that party by not less than seven (7) days' written notice to the other party. 10. CONFIDENTIALITY 10.1 Notwithstanding anything to the contrary in this Agreement and any non-disclosure, confidentiality or other agreement between the parties, the Client hereby consents to the disclosure by the Bank of information: to the extent required or permitted under, or made in accordance with the Reporting Obligation or any other rules, orders or directives following from the EMIR Legislation or any other regulations which mandate reporting and/or retention of transaction information and similar information in accordance with which the other party is required or accustomed to act; or to and between the Bank s head office, branches or affiliates, or to any persons or entities who provide services to the Client, the Bank or the Client and the Bank jointly in connection with such Reporting Obligation For the avoidance of doubt: to the extent that applicable non-disclosure, confidentiality, bank secrecy, data privacy or other laws impose non-disclosure requirements on transaction and - 5 -

6 similar information required or permitted to be disclosed as contemplated herein but permits a party to waive such requirements by consent, consents and acknowledgements provided herein shall be the consent by the Client for the purposes of such law; and the Client acknowledges and agrees that, to the extent permitted by any law, order, directive or regulation with which it is required or accustomed to act, its consent overrides and otherwise voids, with respect to the disclosure under Clause 10.1, any existing privacy or confidentiality obligation which it is subject to The Client represents and warrants that any third party to whom it owes a duty of confidence or whose consent or approval is required under the terms of any agreement in respect of the information disclosed to the Bank, has consented or given its approval to the disclosure of that information The Client further agrees and acknowledges that: disclosures made pursuant to this Clause 10 may include, without limitation, the disclosure of trade information and pricing data (such as, inter alia, the Client s identity) to any Trade Repository, one or more systems or services operated by any Trade Repository, any national regulator(s) (including, without limitation, ESMA and national regulators in the European Union) and that such disclosures could result in such trade information and pricing data becoming available to the public or such regulators; for purposes of complying with the Reporting Obligation, the Bank may engage the services of a third party service provider or agent (including, without limitation, an entity affiliated with such other party) to transfer trade information to a Trade Repository and that a Trade Repository may engage the services of a global trade repository regulated by one or more governmental regulators; disclosures made pursuant to these Terms may be made to recipients in a jurisdiction other than that of the Client, including a jurisdiction that may not necessarily provide an equivalent or adequate level of protection for personal data as the Client's home jurisdiction; any agreement between the parties to maintain confidentiality of information contained in this agreement or in any non-disclosure, confidentiality or other agreement shall continue to apply to the extent that such agreement is not inconsistent with the disclosure of information in connection with the Reporting Obligation as set out herein; and nothing herein is intended to limit the scope of any other consent to disclosure separately given by each party to the other party

7 11. GENERAL 11.1 If any provision of this Agreement is held to be illegal, void, invalid or unenforceable under the laws of any relevant jurisdiction, the legality, validity and enforceability of the remainder of the Agreement shall not be in any way affected or impaired thereby Neither party to this Agreement shall assign any of its rights or obligations under this Agreement or transfer its legal relationship to the other party, in whole or in part without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed) The Schedules to this Agreement as amended or updated from time to time form an integral part hereof. 12. GOVERNING LAW AND JURISDICTION 12.1 This Agreement, and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed and enforced in accordance with Belgian law The parties hereby agree that any dispute, including of a non-contractual nature, which arise out of or in connection with this Agreement shall be brought before the competent courts in Brussels, Belgium. ING Belgium SA/NV Name: Serge Mores Title: Head of Business Management ING Financial Markets Brussels Name: Bedriye Kaleci Title:Manager Financial Markets Operations - 7 -

8 FOR CLIENTS: BLOCK A Signed by duly authorised representatives for and on behalf of 1. Full legal name 1 2. Signature 3. Name 4. Position at company/entity And 5. Signature 6. Name 7. Position at company/entity 8. Date 9. LEI Insert name of company/entity Without LEI ING will not be able to execute this Agreement BLOCK B Contact details for the purpose of Clause 9(Notices): Address: Please sign this Service agreement where indicated above and return the document to the following address: (i) By to the following address : (ii) gpc.belgian.doc@ing.be By mail to the following postal address: ING Belgium SA/NV, Credit Risk Management - CCRM Support Att. Jean Luc Devos (MA 2 +2) Avenue Marnixlaan Brussels - 8 -

9 FEE SCHEDULE Subject to Clause 6, the Bank will provide the services under this Agreement for a temporary fee of EUR