Extracted Text
Highlighting: “"Tier IV Net Open Position"”
(Bilateral Form) (ISDA Agreements Subject to New York Law Only)
ISDAtAssociation, Inc
International Swaps and DefiValiVel
CREDIT SUPPORT ANNEX
to the Schedule to the
IISDAt
MASTER AGREEMENT
dated as of October 28, 2013
between
DEUTSCHE BANK AG ("Party A") and SOUTHERN FINANCIAL, LLC ("Party B")
This Annex supplements, forms part of, and is subject to, the above-referenced Agreement, is part of its
Schedule and is a Credit Support Document under this Agreement with respect to each party.
Accordingly, the parties agree as follows:-
Paragraph 1. Interpretation
(a) Definitions and Inconsistency. Capitalized terms not otherwise defined herein or elsewhere in this
Agreement have the meanings specified pursuant to Paragraph 12, and all references in this Annex to
Paragraphs are to Paragraphs of this Annex. In the event of any inconsistency between this Annex and the
other provisions of this Schedule, this Annex will prevail, and in the event of any inconsistency between
Paragraph 13 and the other provisions of this Annex, Paragraph 13 will prevail.
(b) Secured Part• and Pledgor. All references in this Annex to the "Secured Party" will be to either
party when acting in that capacity and all corresponding references to the "Pledgor" will be to the other party
when acting in that capacity; provided, however-, that if Other Posted Support is held by a party to this
Annex, all references herein to that party as the Secured Party with respect to that Other Posted Support will
be to that party as the beneficiary thereof and will not subject that support or that party as the beneficiary
thereof to provisions of law generally relating to security interests and secured parties.
Paragraph 2. Security Interest
Each party, as the Pledger, hereby pledges to the other party, as the Secured Party, as security for its Obligations, and
grants to the Secured Party a first priority continuing security interest in, lien on and right of Set-off against all Posted
Collateral Transferred to or received by the Secured Party hereunder. Upon the Transfer by the Secured Party to the
Pledger of Posted Collateral, the security interest and lien granted hereunder on that Posted Collateral will be released
immediately and, to the extent possible, without any further action by either party.
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Paragraph 3. Credit Support Obligations
(a) Delivery Ammon Subject to Paragraphs 4 and 5, upon a demand made by the Secured Party on or
promptly following a Valuation Date, if the Delivery Amount for that Valuation Date equals or exceeds the
Pledgor's Minimum Transfer Amount, then the Pledgor will Transfer to the Secured Party Eligible Credit Support
having a Value as of the date of Transfer at kast equal to the applicable Delivery Amount (rounded pursuant to
Paragraph 13). Unless otherwise specified in Paragraph 13, the "Delivery Amount' applicable to the Pledgor for
any Valuation Date will equal the amount by which:
(f) the Credit Support Amount
exceeds
(ii) the Value as of that Valuation Date of all Posted Credit Support held by the Secured Party.
(b) Renew Amount Subject to Paragraphs 4 and 5, upon a demand made by the Pledgor on or promptly
following a Valuation Date, if the Return Amount for that Valuation Date equals or exceeds the Secured Party's
Minimum Transfer Amount, then the Secured Party will Transfer to the Ptedgor Posted Credit Support specified
by the Pledgor in that demand having a Value as of the date of Transfer as close as practicable to the applicable
Return Amount (rounded pursuant to Paragraph 13). Unless otherwise specified in Paragraph 13, the 'Return
Amount' applicable to the Secured Party for any Valuation Date will equal the amount by which:
(ft the Value as of that Valuation Date of all Posted Credit Support held by the Secured Party
exceeds
(ii) the Credit Support Amount.
"ere& Support Amount' means, unless otherwise specified in Paragraph 13, for any Valuation Date (ft the
Secured Party's Exposure for that Valuation Date plus (ii) the aggregate of all Independent Amounts applicable
to the Pledger, if any, minus (iii) all Independent Amounts applicable to the Secured Party, if any, minus (iv) the
Pledgor's Threshold; provided, however, that the Credit SuppOrt Amount will be deemed to be zero whenever
the calculation of Credit Support Amount yields a number less than zero.
Paragraph 4. Conditions Precedent, Transfer Timing, Calculations and Substitutions
(a) Conditions Precedent Each Transfer obligation of the Pledgor under Paragraphs 3 and 5 and of the
Secured Party under Paragraphs 3.4(d)(ii), 5 and 6(d) is subject to the conditions precedent that
(i) no Event ofDefault,Potential Event ofDefault or Specified Condition has occurred and
is continuing
with respect to the other party, and
(ii) no Early Termination Date for which any unsatisfied payment obligations exist has occurred or been
designated as the result of an Event of Default or Specified Condition with respect to the other party.
(b) Transfer Timing. Subject to Paragraphs 4(a) and 5 and unless otherwise specified, if a demand for the
Transfer of Eligible Credit Support or Posted Credit Support is made by the Notification Time, then the relevant
Transfer will be made not later than the close of business on the next LocatBusiness Day; if a demand is made
after the Notification Time, then the relevant Transfer will be made not later than the close of business on the
second Local Business Day thereafter.
(e) Calndations. All calculations of Value and ExPasum for purposes ofParagraphs 3 and 6(d) will be made
by the Valuation Agent as of the Valuation Time. The Valuation Agent will notify each party (or the other party.
if the Valuation Agent is a party) of its calcuLations not later than the Notification Time on the Local Business
Day following the applicable Valuation Date (or in the case ofParagraph 6(d), following the date of calculation).
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(d) Sebsiiiinions
() Unless otherwise specified in Paragraph 13, upon notice to the Secured Party specifying the items of
Posted Credit Support to be exchanged, the Pledgor may, on any Local Business Day. Transfer to the
Secured Party substitute Eligible Credit Support (the "Substitute Credit Support"): and
(ii) subject to Paragraph 4(a), the Secured Party will Transfer to the Pledgor the item's of Posted Credit
Support specified by the Pledgor in its notice not later than the Local Business Day following the date
on which the Secured Party receives the Substitute Credit Support, unless otherwise specified in
Paragraph 13 (the "Substitution Date"); provided that the Secured Party will only be obligated to Transfer
Posted Credit Support with a Value as of the date of Transfer of that Posted Credit Support equal to the
Value as of that date of the Substitute Credit Support.
Paragraph 5. Dispute Resolution
If a party (a "Disputing Party") disputes (I) the Valuation Agent's calculation of a Delivery Amount or a Return
Amount or (II) the Value of any Transfer of Eligible Credit Support or Petted Credit Support, then (I) the
Disputing Party will notify the other party and the Valuation Agent (if the Valuation Agent is not the other party)
not later than the close of business on the Local Business Day flollowing (X) the date that the demand la made
under Paragraph 3 in the case of (I) above or (V) the date of Transfer in the case of (II) above, (2) subject to
Paragraph 4(a), the appropriate party will Transfer the undisputed amount to the other party not later than the
close of business on the Local Business Day following (X) the date that the demand is made under Paragraph 3
in the case of (1) above or (Y) the date of Transfer in the case or(1l) above, (3) the panics will consult with each
then:
other in an attempt to resolve the dispute and (4) if they fail to resolve the dispute by the Resolution Time,
(0 In the case of a dispute involving a Delivery Amount or Return Amount, unless otherwise specified
in Paragraph 13, the Valuation Agent will recalculate the Exposure and the Value as of the Recalculation
Date by:
(A) utilizing any calculations of Expo-lac for the Transactions (or Swap Transactions) that the parties
have agreed are not in dispute;
(B) calculating the Exposure for the Transactions (or Swap Transactions) in dispute by seeking four
actual quotations at mid-market from Reference Market-makers for purposes of calculating Market
Quotation, and taking the arithmetic average of those obtained; provided that if four quotations are not
available for a particular Transaction (or Swap Transaction), then fewer than four quotations may be
used for that Transaction (or Swap Transaction); and if no quotations are available for a particular
Transaction (or Swap Transaction), then the Valuation Agent's original calculations will be used for
that Transaction (or Swap Transaction); and
(C) utilizing the procedures specified in Paragraph 13 the calculating the Value, if disputed, of Posted
Credit Support.
(ii) In the case of a dispute involving the Value of any Transfer of Eligible Credit Support or Posted
Credit Support, the Valuation Agent will recalculate the Value as of the date of Transfer pursuant to
Paragraph 13.
Following a recalculation pursuant to this Paragraph, the Valuation Agent will notify each party (or the other
party, if the Valuation Agent is a party) not later than the Notification Time on the Local Business Day following
the Resolution Time. The appropriate party will, upon demand following that notice by the Valuation Agent or
a resolution pursuant to (3) above and subject to Paragraphs 4(a) and 4(b), make the appropriate Transfer.
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Paragraph 6. Holding and Using Posted Collateral
(a) Care of Posted Collateral. Without limiting the Secured Party's rights under Paragraph 6(c), the Secured
Party will exercise reasonable care to assure the safe custody of all Posted Collateral to the extent required by
applicable law, and in any event the Secured Party will be deemed to have exercised reasonable care if it
exercises at least the same degree of can as it would exercise with respect to its own property. Except as
specified in the preceding sentence, the Secured Party will have no duty with respect to Posted Collateral,
including, without limitation, any duty to collect any Distributions, or enforce or preserve any rights pertaining
thereto.
(b) Eligibility to Hold Posted Collateral; Custodians.
(i) General. Subject to the satisfaction of any conditions specified in Paragraph 13 for holding Posted
Collateral, the Secured Party will be entitled to hold Posted Collateral or to appoint an agent (a
"Custodian") to hold Posted Collateral for the Secured Party. Upon notice by the Secured Party to the
Pledgee of the appointment of a Custodian, the Pledgers obligations to make any Transfer will be
discharged by making the Transfer to that Custodian. The holding of Posted Collateral by a Custodian
will be deemed to be the holding of that Posted Collateral by the Secured Party for which the Custodian
is acting.
(ii) Failure to Satisfy Consfidoe& if the Secured Party or its Custodian fails to satisfy any conditions
for bolding Posted Collateral, then upon a demand made by the Pledger, the Secured Party will, not later
than five Local Business Days after the demand, Transfer or cause its Custodian to Transfer all Posted
Collateral held by it to a Custodian that satisfies those conditions or to the Secured Party if it satisfies
those conditions.
(iii) Liability. The Secured Party will be liable for the acts or emissions of its Custodian to the same
extent that the Secured Party would be liable hereunder for its own acts or omissions.
(c) Use of Posted CollateraL Unless otherwise specified in Paragraph 13 and without limiting the rights and
obligations of the parties under Paragraphs 3, 4(d)(ti), 5, 6(d) and 8, if the Secured Party is not a Defaulting Party
or an Affected Party with respect to a Specified Condition and no Early Termination Date has occurred or been
designated as the result of an Event of Default or Specified Condition with respect to the Secured Party, then the
Secured Party will, notwithstanding Section 9-207 of the New York Uniform Commercial Code, have the right
to:
() sell, pledge, rehypothecate, assign, invest, use, commingle or otherwise dispose of, or otherwise rase
in its business any Posted Collateral it holds, free from any claim or right of any nature whatsoever of
the Pledger, including any equity or right of redemption by the Pledgor, and
(ii) register any Posted Collateral in the name of the Secured Party, its Custodian or a nominee for either.
For purposes of the obligation to Transfer Eligible Credit Support or Posted Credit Support pursuant to
Paragraphs 3 and 5 and any rights or remedies authorized under this Agreement, the Secured Party will be
deemed to continue to bold all Posted Collateral and to receive Distributions made thereon. regardless of whether
the Secured Party has exercised any rights with respect to any Posted Collateral pursuant to (i) or (ii) above.
(d) Distribution, and Interest Amount
CO Distributions. Subject to Paragraph 4(a), if the Secured Party receives or is deemed to receive
Distributions on a Local Business Day, it will Transfer to the Pledges not later than the following Local
Business Day any Distributions it receives or is deemed to receive to the extent that a Delivery Amount
would not be created or increased by that Transfer, as calculated by the Valuation Agent (and the date
of calculation will be deemed to be a Valuation Date for this purpose).
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(ii) Interest Assorou. Unless otherwise specified in Paragraph 13 and subject to Paragraph 4(a), in lieu
of any interest, dividends or other amounts paid a deemed to have been paid with respect to Posted
Collateral in the Ibmt of Cash (all of which may be retained by the Secured Party), the Secured Patty
will Transfer to the Pledgor at the times specified in Paragraph 13 the Interest Amount to the extent that
a Delivery Amount would not be created or increased by that Transfer, as calculated by the Valuation
Agent (and the date of calculation will be deemed to be a Valuation Date for this purpose). The Interest
Amount or portion thereof not Transferred pursuant to this Paragraph will constitute Posted Collateral
in the form of Cash and will be subject to the security interest granted under Paragraph 2.
Paragraph T. Events of Default
a party it
For purposes of Section 5(a)(iii)(l) of this Agreement, an Event of Default will exist with respect to
(i) that party fails (or fails to cause its Custodian) to make, when due, any Transfer ofEligible Collateral.
failure
Posted Collateral or the Interest Amount, as applicable, required to be made by it and that
continues for two Local Business Days after notice of that failure is given to that party;
(ii) that party fails to comply with any restriction or prohibition specified in this Annex with respect to
any of the rights specified in Paragraph 6(c) and that failure continues for five Local Business Days after
notice of that failure is given to that party; or
(iii) that party fails to comply with or perform any agreement or obligation other than those specified
in Paragraphs 7(i) and 7(u) and that failure continues for 30 days after deice of that failure is given to
that party.
Paragraph 8. Certain Rights and Remedies
(a) Secured Parry's Rights and Pendia. If at any time (1) an Event ofDefault or Specified Condition with
been
respect the Pledgor has occurred and is continuing or (2) an Early Termination Date has occurred or
to
designated as the result of ao Event of Default or Specified Condition with respect to the Pledgor, then, unless
the Pledgor has paid in full all of Its Obligations that ate then due, the Secured Patty may exercise one or more
of the following rights and remedies:
(0 all rights and remedies available to a secured party under applicable law with respect to Posted
Collateral held by the Secured Party;
(ii) any other rights and remedies available to the Secured Party under the terms of Other Posted Support,
if any;
(iii) the right to Set-off any amounts payable by the Pledger with respect to any Obligations against any
Posted Collateral or the Cash equivalent of any Posted Collateral held by the Secured Party (or any
obligation of the Secured Party to Transfer that Posted Collateral); and
(iv) the right to liquidate any Posted Collateral held by the Secured Party through ate or more public
or private sales or other dispositions with such notice, if any, as may be required under applicable law,
free from any claim or right of any nature whatsoever of the Pledgor, including any equity or right of
redemption by the Pledgor (with the Secured Party having the right to purchase any or all of the Posted
Collateral to be sold) and to apply the proceeds (or the Cash equivalent thereof) from the liquidation of
the Posted Collateral to any amounts payable by the Pledgor with respect to any Obligations in that order
as the Secured Party may elect.
Each party acknowledges and agrees that Posted Collateral in the form of securities may decline speedily in value
and is of a type customarily sold on a recognized market, and, accordingly, the Pledgor is not entitled to prior
notice of any sale of that Posted Collateral by the Secured Party, except any notice that is required under
applicable law and cannot be waived.
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(b) Ptedgor's Rights mad Resettles. If at any time an Early Termination Date has occurred or been
designated as the result of an Event of Default or Specified Condition with respect to the Secured Party, then
(except in the case of an Early Termination Date relating to less than all Transactions (or Swap Transactions)
where the Secured Party has paid in full all of its obligations that are then due under Section 6(c) of this
Agreement);
(i) the Pledger may exercise all rights and remedies available to a pledger under applicable law with
respect to Posted Collateral held by the Secured Party;
(i) the Pledgor may exercise any other rights and remedies available to the Pledgor under the terms of
Other Posted Support, if any;
(ii) the Secured Party will be obligated immediately to Transfer all Posted Collateral and the Interest
Amount to the Pledger; and
(iv) to the extent that Posted Collateral or the Interest Amount is not so Transferred pursuant to
(iii) above, the Pledger may;
(A) Set-off any amounts payable by the Pledger with respect to any Obligations against any Posted
Collateral or the Cash equivalent of any Posted Collateral held by the Secured Party (or any obligation
of the Secured Party to Transfer that Posted Collateral); and
(B) to the extent that the Pledger does not Set-off under (iv)(A) above, withhold payment of any
remaining amounts payable by the Pledger with respect to any Obligations, up to the Value of any
remaining Posted Collateral held by the Secured Party. until that Posted Collateral is Transferred to
the Pledger.
(c) Deiciondes and ESC= Proceeds The Secured Party will Transfer to the Pledger any proceeds and
Posted Credit Support remaining after liquidation, Set-off andlor application under Paragraphs 8(a) and 8(b) after
satisfaction in fidI of all amounts payable by the Pledger with respect to any Obligations; the Pledger in all events
will remain liable for any amounts remaining unpaid after any liquidation, Set-off and/or application under
Paragraphs 8(a) and 8(b).
(d) FinalRenown. When no amounts are or thereafter may become payable by the Pledges with respect to
any Obligations (except for any potential liability under Section 2(d) of this Agreement), the Secured Party will
Trarsfer to the Pledger all Posted Credit Support and the Interest Amount, if any.
Paragraph 9. Representations
Each party represents to the other party (which representations will be deemed to be repeated as of each date on
which it, as the Pledger, Transfers Eligible Collateral) that:
(i) it has the power to grant a security interest in and lien on any Eligible Collateral it Transfers as the
Pledgee and has taken all necessary actions to authorize the granting of that security interest and lien;
(i) it is the sole owner of or otherwise has the right to Transfer all Eligible Collateral it Transfers to the
Secured Party hereunder, free and clear of any security interest, lien, encumbrance or other restrictions
other than the security interest and lien granted under Paragraph 2;
(iii) upon the Transfer of any Eligible Collateral to the Secured Patty under the terms of this Annex, the
Secured Party will have a valid and perfected first priority security interest therein (assuming that any
central clearing corporation or any third-party financial intermediary or other entity not within the control
of the Pledger involved in the Transfer of that Eligible Collateral gives the notices and takes the action
required of it under applicable law for perfection of that interest); and
(iv) the performance by it of its obligations under this Annex will not result in the creation of any
security interest, lien or other encumbrance on any Posted Collateral other than the security interest and
lien granted under Paragraph 2.
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Paragraph 10. F.xpeases
(a) GeneraL Except as otherwise provided in Paragraphs 10(b) and 10(c), each party will pay its own costs
and expenses in connection with performing its obligations under this Annex and neither party will be liable for
any cods and expenses incurred by the other party in connection herewith.
(b) Posted Credit Support The Pledgor will promptly pay when due all taxes, assessments or charges of any
nature that are Imposed with respect to Posted Credit Support held by the Secured Party upon becoming aware
of the same, regardless of whether any portion of that Posted Credit Support is subsequently disposed of under
Paragraph 6(c), except for those taxes, assessments and charges that result from the exercise of the Secured
Party's rights under Paragraph 6(c).
(c) Lintittation/Applicatiort of Posted Credit Support All reasonable costs and expenses incurred by or on
behalf of the Secured Party or the Pledger in connection with the liquidation and/or application of any Posted
Credit Support under Paragraph 8 will be payable, on demand and pursuant to the Expenses Section of this
Agreement, by the Defaulting Party or, if there is no Defaulting Party, equally by the parties.
Paragraph 11. Miscellanies'
(a) Default Interest A Secured Party that fails to make, when due, any Transfer of Posted Collateral or the
Interest Amount will be obligated to pay the Pledgor (to the extent permitted under applicable law) an amount
equal to interest at the Default Rate multiplied by the Value of the items of property that were required to be
Transferred, from (and including) the date that Posted Collateral or Interest Amount was required to be
Transferred to (but excluding) the date of Transfer of that Posted Collateral or bit:rest Amount. This interest will
be calculated on the basis of daily compounding and the actual number of days elapsed.
(b) Further Assurances. Promptly following a demand made by a party, the other party will execute, deliver,
file and record any financing statement, specific assignment or other document and take any other action that may
be necessary or desirable and reasonably requested by that party to create, preserve, perfect or validate any
security interest or lien granted under Paragraph 2, to enable that party to exercise or enforce its rights under this
Annex with respect to Posted Credit Support or an Interest Amount or to effect or document a release of a
security interest on Posted Collateral or an Interest Amount.
(c) Farther Protection. The Pledger will promptly give notice to the Secured Patty of„ and defend against,
any suit, action, proceeding or lien that involves Posted Credit Support Transferred by the Pledgor or that could
adversely affect the security interest and lien granted by it under Paragraph 2, unless that suit, action, proceeding
or lien results from the exercise of the Secured Party's rights under Paragraph 6(c).
(d) Good Faith and Commercially Reasonable Manner. Performance of all obligations under this Annex.
including, but not limited to, all calculations, valuations and determinations made by either party, will be made
in good faith and in a commercially reasonable manner.
(e) Demands and Notices. All demands and notices made by a party under this Annex will be made as
specified in the Notices Section of this Agreement, except as otherwise provided in Paragraph 13.
(I) Specification of Certain Masten. Anything referred to in this Annex as being specified In Paragraph
13 also may be specified in one or more Confirmations or other documents and this Annex will be construed
accordingly.
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Paragraph 12. Definitions
As used in this Annex:—
"Cash" means the lawful currency of the United States of America.
"Credit Support Amount" has the meaning specified in Paragraph 3.
"Custodian" has the meaning specified in Paragraphs 6(bXi) and 13.
"barely Amount' has the meaning specified in Paragraph 3(a).
"Disputing Part►" has the meaning specified in Paragraph 5.
"Dis!diadems" means with respect to Posted Collateral other than Cash, all principal, interest and other payments
and distributions of cash or other property with respect thereto, regardless of whether the Secured Party has
disposed of that Posted Collateral under Paragraph 6(c). Distributions will not include any item of property
acquired by the Secured Party upon any disposition or liquidation of Posted Collateral or, with respect to any
Posted Collateral in the form of Cash, any distributions on that collateral, unless otherwise specified herein.
"Eligible Col&serer means, with respect to a party, the items, if any, specified as such for that party in
Paragraph 13.
"Eligible Credit Support" means Eligible Collateral and Other Eligible Support.
"Exposure" means for any Valuation Date or other date for which Exposure is calculated and subject to
Paragraph 5 in the cue of a dispute, the amount, if any, that would be payable to a party that is the Secured
Party by the other party (expressed as a positive number) or by a party that is the Secured Party to the other party
(expressed as a negative number) pursuant to Section 6(eXii)(2XA) of this Agreement as if all Transactions (or
Swap Transactions) were being terminated as of the relevant Valuation Time; provided that Market Quotation
will be determined by the Valuation Agent using its estimates at mid-market of the amounts that would be paid
for Replacement Transactions (as that term is defined in the definition of "Market Quotation").
"Independent Amount" means, with respect to a party, the amount specified as such for that party in Paragraph
13; if no amount is specified, zero.
"latent Amount' means, with respect to an Interest Period, the aggregate sum of the amounts of interest
calculated for each day in that Interest Period on the principal amount of Posted Collateral in the form of Cash
held by the Secured Party on that day, determined by the Secured Party for each such day as follows:
(x) the amount of that Cash on that day; multiplied by
(y) the Interest Rate in effect for that day; divided by
(z) 360.
"lateral Period" means the period from (and including) the last Local Business Day on which an Interest
Amount was Transferred (or, if no Interest Amount has yet been Transferred, the Local Business Day at which
Posted Collateral in the form of Cash was Transferred to or received by the Secured Party) to (but excluding)
the Local Business Day on which the current Interest Amount is to be Transferred.
"Interest Rate" means the rate specified in Paragraph 13.
"Local Bushiest Day", unless otherwise specified in Paragraph 13, has the meaning specified in the Definitions
Section of this Agreement, except that references to a payment in clause (b) thereof will be deemed to include
a Transfer under this Annex.
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"Minimum Transfer Amount" means, with respect to a party, the amount specified as such for that party in
Paragraph 13; if no amount is specified, zero.
"Notification lime has the meaning specified in Paragraph 13.
"Obligations" means, with respect le s party, all present and future obligations of that party under this Agreement
and any additional obligations specified for that party in Paragraph 13.
"Other Eligible Support" means, with respect to a party, the items, if any, specified as such for that party in
Paragraph 13.
"Other Posed Support" means all Other Eligible Support Transferred to the Secured Party that remains in effect
for the benefit of that Secured Party.
"Pledger means either party, when that party (i) receives a demand for or is required to Transfer Eligible Credit
Support under Paragraph 3(a) or (5) has Transferred Eligible Credit Support under Paragraph 3(a).
"Posted Collateral" means all Eligible Collateral, other property, Distributions, and all proceeds thereof that have
been Transferred to or received by the Secured Party under this Annex and not Transferred to the Pledger
pursuant to Paragraph 3(b), 4(d)(ii) or 6(d)(i) or released by the Secured Patty under Paragraph S. Any Interest
Amount or portion thereof not Transferred pursuant to Paragraph 6(d)(ii) will constitute Posted Collateral in the
form of Cash.
"Ported Credit Support' means Posted Collateral and Other Potted Support.
'Recalculation Date" means the Valuation Date that gives rise to the dispute under Paragraph 5; prOvided,
however, that if a subsequent Valuation Date occurs under Paragraph 3 prior to the resolution of the dispute, then
the "Recalculation Date" means the most recent Valuation Date under Paragraph 3.
"Peso:talon Time" has the meaning specified in Paragraph 13.
"Ran Amount" has the meaning specified in Paragraph 3(b).
"Secured Puny" means either party, when that party (1) makes a demand for or is entitled to receive Eligible
Credit Support under Paragraph 3(a) or (ii) holds or is deemed to hold Posted Credit Support.
"Specified Condition" means, with respect to a party, any event specified as such for that party in Paragraph 13.
"Sabsdatte Credit Support" has the meaning specified in Paragraph 4(d)(i).
"Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
"Threshold" mans, with respect to a party, the amount specified as such for that party in Paragraph 13; if no
amount is specified, zero.
"Transfer" means, with respect to any Eligible Credit Support, Posted Credit Support or Interest Amount, and
in accordance with the instructions of the Secured Party, Pledger or Custodian, as applicable:
(i) in the case of Cash, payment or delivery by wire transfer into one or more bank accounts specified
by the recipient;
(ii) in the case of certificated securities that cannot be paid or delivered by book-entry, payment or
delivery in appropriate physical form to the recipient or its account accompanied by sny duly executed
instruments of transfer, assignments in blank, transfer tax stamps and any other documents necessary to
constitute a legally valid transfer to the recipient;
(di) in the case of securities that can be paid or delivered by book-entry, the giving of written instructions
to the relevant depository institution or other entity specified by the recipient, together with a written
copy thereof to the recipient, sufficient if complied with to result in a legally effective transfer of the
relevant interest to the recipient; and
(iv) in the case of Other Eligible Support or Other Posted Support. as specified in Paragraph 13.
9 ISDACP 1994
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Party A: Deutsche Bank AG
Party B: Southern Financial, LLC
Paragraph 13. Elections and Variables
(a) Security Interest for "Obligations". The term "Obligations" as used in this Annex includes the
following additional obligations.
With respect to Party B, "Obligations" means any and all present and future obligations of Party B
under or in connection with this Agreement, or any other contract, or any other transaction between
Party B and Party A.
(b) Credit Support Obligations.
(1) Delivery Amount, Return Amount and Credit Support Amount.
(A) "Delivery Amount" has the meaning specified in Paragraph 3(a), except that each
reference therein to "Valuation Date" is hereby amended to be "Valuation Time".
(B) "Return Amount" has the meaning specified in Paragraph 3(b), except that each
reference therein to "Valuation Date" is hereby amended to be "Valuation Time".
(C) "Credit Support Amount" has the meaning specified in Paragraph 3, except that, if an
Independent Amount or Independent Amounts are specified for a party, the Credit
Support Amount for such party will never be less than the aggregate of all Independent
Amounts applicable to that party.
(ii) Eligible CollateraL The following items will qualify as "Eligible Collateral" for the party
specified:
Party A Party B Valuation
Percentage
(A) Cash Inapplicable [X] 100%
(B) negotiable debt obligations issued by the U.S. Inapplicable [X] 98%
Treasury Department having a remaining maturity
of less than one year ("Treasury Bills")
(C) negotiable debt obligations issued by the U.S. Inapplicable [X] 95%
Treasury Department having a remaining maturity
of 1.10 years ("Treasury Notes")
(D) negotiable debt obligations issued by the U.S. Inapplicable (XJ 90%
Treasury Department having a remaining maturity
of more than 10 years ("Treasury Bonds")
(E) Any account or deposit ofParty B with Party A or Inapplicable [XJ As determined
an affiliate of Party A which is identified on Exhibit by Party A in
A annexed hereto or otherwise designated as its sole
Eligible Collateral for purposes of this Annex in a discretion and
writing executed and delivered, in counterpart or further reduced
otherwise, by Party A and Party B (each such by the MI
account or deposit, together with all of the amount of any
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securities, funds and other property therein and all other
of the security entitlements related thereto, an obligations
Account'). In the case of an account or secured by
deposit with an affiliate of Party A, such account or such Eligible
deposit shall qualify as an Eligible Account only if Account as
such affiliate signs this Annex at the end hereof. determined by
Party A in its
sole discretion.
(F) Such other collateral as Party A and Party B may Inapplicable EX) As may be
agree. agreed.
(iii) Other Eligible Support. The following items will qualify as "Other Eligible Support" for
the party specified:
(A) Inapplicable Inapplicable I 1
(B) Inapplicable Inapplicable 1
(iv) Thresholds.
(A) "Independent Amount" means with respect to Party A: Inapplicable
"Independent Amount" means with respect to Party B: an amount in USD
equal to the sum of (I) for Derivatives Transactions, the aggregate of the
amounts specified in the Confirmations for such Transactions or as otherwise
agreed by the parties, and (2) for Foreign Exchange Transactions, an amount
equal to the sum of (a) the product of Tier I Net Open Position multiplied by
Tier I Independent Amount Ratio, (b) the product of Tier II Net Open Position
multiplied by Tier II Independent Amount Ratio, (c) the product of Tier III Net
Open Position multiplied by Tier III Independent Amount Ratio, (d) the product
of Tier IV Net Open Position multiplied by Tier IV Independent Amount Ratio
and (e) the Forward Risk Adjustment Amount.
(B) "Threshold" means with respect to Party A: Inapplicable.
"Threshold" means with respect to Party B: Zero.
(C) "Minimum: Transfer Amount" means with respect to Party A: $100,000 provided,
however, that the Minimum 'transfer Amount for such party shall be zero upon the
occurrence and during the continuance of an Event of Default, Potential Event of
Default, Termination Event, Additional Termination Event or Specified Condition
with respect to such party.
"Minimum Transfer Amount" means with respect to Party B: $100,000 provided,
however, that the Minimum Transfer Amount for such party shall be zero upon the
occurrence and during the continuance of an Event of Default, Potential Event of
Default, Termination Event, Additional Termination Event or Specified Condition
with respect to such party.
(D) Rounding. The Delivery Amount and the Return Amount will be rounded up and
down respectively to the nearest integral multiple of 610,000.
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(c) Valuation and Timing.
(I) "Valuation Agent" means: Party A.
(ii) "Valuation Date" means: Any Local Business Day.
(iii) "Valuation Time" means:
I the close of business in the city of the Valuation Agent on the Valuation Date or date
of calculation, as applicable;
[X] the close of business on the Local Business Day before the Valuation Date or date of
calculation, as applicable;
provided that the calculations of Value and Exposure will be made as of approximately the
same time on the same date.
(iv) "Notification Time" means 1:00 pm, New York time, on a Local Business Day.
(d) Conditions Precedent and Secured Party's Rights and Remedies. Each Termination Event
specified below with respect to a party will be a "Specified Condition" for that party (the specified
party being the Affected Party if a Termination Event or Additional Termination Event occurs with
respect to that party):
Party B
Force Majeure
Illegality [X]
Tax Event [
it Event Upon Merger ( 1
Credit Event Upon Merger
The Additional Termination Events Ex]
specified in Part I (other than an
Elective Termination) of the Schedule
to this Agreement or any event which,
with the giving ofnotice or the lapse of
time or both, would constitute an
Additional Termination Event.
(e) Substitution.
(i) "Substitution Date" has the meaning specified in Paragraph 4(dXii).
(ii) Consent. If specified here as applicable, then the Pledgor must obtain the Secured Party's
consent for any substitution pursuant to Paragraph 4(d): Inapplicable
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(0 Dispute Resolution.
(I) With respect to FX Transactions, Paragraph 5 of this Annex is deleted in its entirety and thus
is inapplicable.
(II) With respect to Transactions other than FX Transactions, the following provision would
"Resolution Time" means 1:00 p.m., New York time, on the Local Business Day
following the date on which the notice is given that gives rise to a dispute under
Paragraph 5.
(ii) Value. For the purpose of Paragraphs 5(i)(C) and 5(ii), the Value of Posted Credit
Support will be calculated as follows: as set forth for other purposes in Paragraph
12.
(iii) Alternative. The provisions of Paragraph 5 will apply. except to the following
extent: (A) pending the resolution of a dispute, Transfer of the undisputed Value of
Eligible Credit Support or Posted Credit Support involved in the relevant demand
will be due as provided in Paragraph 5 if the demand is given by the Notification
Time, but will be due on the second Local Business Day after the demand if the
demand is given after the Notification Time; and (B) the Disputing Party need not
comply with the provisions of Paragraph 5(11)(2) if the amount to be Transferred
does not exceed the Disputing Party's Minimum Transfer Amount.
(g) Holding and Using Posted Collateral.
(0 Eligibility to Hold Posted Collateral; Custodians. Party A and its Custodian will be entitled to
hold Posted Collateral pursuant to Paragraph 6(b); provided that the following conditions
applicable to it are satisfied:
(A) Party A is not a Defaulting Party.
(B) Posted Collateral may be held only in the following jurisdictions: Posted Collateral
consisting of certificated securities must be held in New York.
Initially, the Custodian for Party A is: Deutsche Bank AG New York Branch.
(ii) Use ofPosted CollateraL The provisions of Paragraph 6(c) will apply to Party A and not to
Party B.
(iii) Collateral Account. All Eligible Collateral received by Party A from Party B (other than
Contract Rights and Eligible Accounts) shall be credited to one or more accounts (each, a
"Collateral Account") at Party A, or its Custodian, each of which may include property of
other parties but will bear a title indicating that the property in such Collateral Account is
held as security.
Party A shall cause statements concerning the Posted Collateral held in each Collateral
Account to be delivered to Party B on request. Nothing in this Paragraph I 3(g)(iii) shall be
constructed as limiting the right of Party A to use or otherwise dispose of Posted Collateral
pursuant to Paragraph 6(c).
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Party A shall have no responsibility for ascertaining or informing Party B with respect to,
and shall not be required to take any action concerning, any maturities, calls, conversions,
exchanges, offers, tenders, redemptions or similar matters relating to any of the Posted
Collateral, regardless of whether Party A has or is deemed to have knowledge of any thereof.
(iv) Eligible Accounts. Party B may close, or withdraw funds or property from, an Eligible
Account provided as Eligible Collateral only if (i) such close or withdrawal is part of a
substitution effected in accordance with Paragraph 4(d) of this Annex or (ii) after giving
effect to such close or withdrawal, the value of the remaining Posted Collateral for purposes
of this Annex will be equal to or greater than that required hereunder.
Party B hereby irrevocably authorizes Party A and its affiliates to disregard any instruction
from Party B relating to an Eligible Account established with such entity which violates the
provisions of this Paragraph 13(gXiv).
Party B hereby irrevocably authorizes Party A to originate entitlement orders (within the
meaning of Article 8 of the New York Uniform Commercial Code) with respect to each
Eligible Account maintained with an affiliate of Party A, and each such affiliate agrees that
(x) it will comply with such entitlement orders originated by Party A without further consent
by Party B and (y) it is acting as agent for Party A with respect to such Eligible Account.
(h) Distributions and Interest Amount.
(i) Interest Rate. The "Interest Rate" will be with respect to Eligible Collateral in the form of
Cash, for any day, the rate opposite the caption "Federal Funds (Effective)" for such day as
published for such day in Federal Reserve Publication 1-1.15(519) or any successor
publication as published by the Board of Governors of the Federal Reserve System.
(ii) Transfer of Interest Amount. The Transfer of the Interest Amount will be made on the first
Local Business Day of each calendar month.
(iii) Alternative to Interest Amount. The provisions of Paragraph 6(d)(ii) will apply.
(i) Other Eligible Support and Other Posted Support.
(i) "Value" with respect to Other Eligible Support and Other Posted Support means:
Inapplicable
(ii) "Transfer" with respect to Other Eligible Support and Other Posted Support means:
Inapplicable
(j) Demands and Notices. All demands, specifications and notices under this Annex will be made
pursuant to the Notices Section of this Agreement, unless otherwise specified here:
Party A: Deutsche Bank AG
60 Wall Street
New York, NY 10005
Attention: Collateral Management
Telephone No.:
Fax No.:
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Party B: Same as provided in Notices section of the Agreement
(k) Addressesfor Transfers
Party A: To be notified from time to limo
Party B: To be notified from time to time
(I) Other Provisions.
(I) The following definitions are hereby inserted into Paragraph 12 in the appropriate
alphabetical order:
(A) "Aggregate Ceiling Limit" means USD 40,000,000.
(B) "Aggregate Net Open Position" means, at any time, the stun of (i) the Tier I Net Open
Position, (ii) the Ticr II Net Open Position (iii) the Ticr III Net Open Position and (iv)
the Tier IV Net Open Position.
(C) "Base Currency" means U.S. Dollars.
(D) "Derivatives Transaction" means any Transaction other than a Foreign Exchange
Transaction.
(E) "Tier HI Ceiling Limit' means USD 20,000,000.
(F) "Tier III Close-Out Ratio" means a number expressed as a percentage representing
the quotient of (A) the portion of the Net Collateral Value attributable to all FX
Transactions and Currency Option Transactions involving Tier Ill Currencies but not
involving Tier IV Currencies, divided by (B) the Tier Ill Net Open Position, such
number being determined and notified by Party A to Party B from time to time, and
initially being eight percent (8%).
(G) "Tier HI Independent Amount Ratio" means a number expressed as a percentage
representing the minimum proportion of (1) the Net Collateral Value attributable to
all FX Transactions and Currency Option Transactions involving Tier Ill Currencies
but not involving Tier IV Currencies to (2) the Tier Ill Net Open Position, which
Party B must maintain in respect of outstanding FX Transactions and Currency
Option Transactions involving Tier III Currencies but not involving Tier IV
Currencies, such number being determined and notified by Party A to Party B from
time to time, and initially being fifteen percent (15%).
(H) "Tier III Net Open Position" means, at any given time, the amount obtained by
calculating the Net Open Position as it applies to all FX Transactions and Currency
Option Transactions involving Tier III Currencies but not involving Tier IV
Currencies.
(I) "Tier II Ceiling Limit' means USD 40,000,000.
"Tier II Close-Out Ratio" means a number expressed as a percentage representing
the quotient of (A) the portion of the Net Collateral Value attributable to all FX
Transactions and Currency Option Transactions involving Tier 11 Currencies but not
involving Tier III Currencies or Tier IV Currencies, divided by (B) the Tier II Net
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Open Position, such number being determined and notified by Party A to Party B
from time to time, and initially being five percent (5%).
(K) "Tier II Independent Amount Ratio" means a number expressed as a percentage
representing the minimum proportion of (1) the Net Collateral Value attributable to
all FX Transactions and Currency Option Transactions involving Tier II Currencies
but not involving Tier III Currencies or Tier IV Currencies to (2) the Tier II Net
Open Position, which Party B must maintain in respect of outstanding FX
Transactions and Currency Option Transactions involving Tier II Currencies but not
involving Tier III Currencies or Tier IV Currencies, such number being determined
and notified by Party A to Party B from time to time, and initially being ten percent
(10%).
(L) "Tier II Net Open Position" means, at any given time, the amount obtained by
calculating the Net Open Position as it applies to all FX Transactions and Currency
Option Transactions involving Tier II Currencies but not involving Tier Ill Currencies
or Tier IV Currencies.
(M) "Foreign Exchange Transactions" means any Transaction that is a FX Transaction
or Currency Option Transaction as defined in the FX Definitions (as defined below).
(N) "Forward Risk Adjustment Amount" means an amount in the Base Currency
determined by Party A in a commercially reasonable manner to account for the risk
attributable to movements in the yield curves of the underlying currencies of the FX
Transactions.
(O) "Tier IV Ceiling Limit" means USD 20,000,000.
(P) "Tier IV Close-Out Ratio" means a number expressed as a percentage representing
the quotient of (A) the portion of the Net Collateral Value attributable to all FX
Transactions and Currency Option Transactions involving Tier IV Currencies,
divided by (3) the Tier IV Net Open Position, such number being determined and
notified by Party A to Party B from time to time, and initially being fifteen percent
(15%).
(Q) "Tier IV Independent Amount Ratio" means a number expressed as a percentage
representing the minimum proportion of (1) the Net Collateral Value attributable to
all FX Transactions and Currency Option Transactions involving Tier IV Currencies
to (2) the Tier IV Net Open Position, which Party B must maintain in respect of
outstanding FX Transactions and Currency Option Transactions involving Tier IV
Currencies, such number being determined and notified by Party A to Party B from
time to time, and initially being twenty- five percent (25%).
(R)