NETHERLANDS
ANNEX
1. The following amendment is made to the Terms and Conditions:
(a) New clause A11.1(d) to be included after A11.1(c) as follows:
“if the Participant is a Netherlands Party, a creditor of the counterparty of such Netherlands
Party (hereinafter the "Bank") takes possession of, or an attachment, distress, execution,
sequestration or other analogous legal process is levied or enforced upon any present or
future claims of the Bank vis-à-vis the Netherlands Party, including but not limited to any
claims for the transfer of Securities, Margin Securities or Cash Margin, and such process is
not dismissed or discharged within fourteen (14) days thereafter[, and the Netherlands
Party serves a default notice on the Bank].
[This provision is designed to ensure that, should a creditor of the Bank attach any of the
assets held by the Netherlands Party under the terms of the Repo, those assets could be
included by the Bank in calculating any amounts owed by the Bank or to the Bank under
any set-off calculation. Without this provision, any amounts subject to the attachment
could not be included in any such calculation. Even though the Bank would technically be
the party “in default”, the Bank would still be the party who performs the set-off
calculation. We have inserted this provision as an automatic Event of Default rather than
being dependant on the Netherlands Party serving a default notice on the Bank as we felt
that this provided the Bank with greater certainty that its right to include amounts owed to
it by the Netherlands Party in any set-off calculation would not be prejudiced by the
Netherlands Party’s failure to serve a default notice.]
(b) New clause A11.2(x) to be included after clause A11.2(w) as follows:
“For the avoidance of doubt, in respect of the Participant, the appointment of an
administrator ("stille curator") for it pursuant to Section 1:76 of the Act on the Financial
Supervision ("Wet op het financieel toezicht", hereinafter "WFT") will be deemed to be
equivalent to the appointment of a receiver, administrator, liquidator or trustee or
analogous officer of the Participant or over all or any material part of such Participant’s
property, and thus constitute an Event of Default if the Bank serves a Default Notice.
Any reference to a provision of the WFT will also be deemed to refer to, without limitation,
amended or revised successor provisions and re-enacted provisions, whether or not
amended. References to the WFT include, without limitation, references to amendment,
revision or re-enactment of the WFT."]1
(c) New clause A11.2(y) is added after clause A11.2(x) as follows:
“For the avoidance of doubt, in respect of the Participant, each of the following measures,
(i) the appointment of an administrator ("stille curator") for it pursuant to Section 1:76
of the Act on the Financial Supervision ("Wet op het financieel toezicht", hereinafter
"WFT"),
1
To be included where the Participant is: (i) a bank as defined in Section 1:1 of the WFT, in the form of a private or a public limited
liability company, or in the form of a co-operative society with limited liability ("coöperatie met beperkte aansprakelijkheid"), in each
case incorporated under the laws of the Netherlands and registered pursuant to Section 1:107(2)(a)(1) of the WFT; (ii) an investment
firm ("beleggingsondernemingen") as defined in Section 1:1 of the WFT; or (iii) or a registered Netherlands branch of a foreign bank or
foreign investment firm.
LON7042830/4 006940-0919
(ii) limitation or removal of its powers of disposal with respect to all or some of its
assets pursuant to Section 3:135(1), Section 3:138(1) or Section 3:139(1) of the WFT, and
[(iii) the activation of the safety net instrument ("opvanginstrument") pursuant to Section
3:151 of the WFT,]2
will be deemed to be equivalent to the appointment of a receiver, administrator, liquidator
or trustee or analogous officer of the Participant or over all or any material part of such
Participant’s property, and thus constitute an Event of Default if the Bank serves a Default
Notice.
Any reference to a provision of the WFT will also be deemed to refer to, without limitation,
amended or revised successor provisions and re-enacted provisions, whether or not
amended. References to the WFT include, without limitation, references to amendment,
revision or re-enactment of the WFT."]3
2
To be included if Participant is a life assurance company.
3
To be included if Participant is an insurance company.
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