EU Regulation (EU) No 236/2012

This supplemental notification (the "Supplement") applies to supplement your existing prime brokerage, stock lending or other agreement with us and relates to EU Regulation No 236/2012 on the short selling of certain securities (the "Regulation"). The Regulation is effective November 1, 2012. Pursuant to the Regulation, on or after November 1, 2012, unless the "market maker" exemption (as described in the Regulation) is available, the uncovered short sale of EEA listed shares and sovereign debt within the scope of the Regulation is prohibited absent compliance with the requirements set forth in Articles 12(1)(b) and 12(1)(c) (with respect to shares) and Article 13(1(c) (with respect to sovereign debt) of the Regulation.

This Supplement sets forth certain terms and conditions that comply with the Regulation. The full text of the Illiquid Shares Notice Terms and Conditions, the Liquid Shares Notice Terms and Conditions and the Standard Sovereign Debt Notice Terms and Conditions (collectively, the "Notices" and each a "Notice") are set forth below. YOU ARE DEEMED TO HAVE READ AND AGREED TO THEM. These Notices and the terms and conditions set forth within them comply with the Regulation and relate to the provision by Banco de Madrid of "locate approvals" in connection with such securities. The Notices apply to the provision of "locate approvals" in relation to liquid shares (as defined in the relevant Notice), illiquid shares (as defined in the applicable Notice) and sovereign debt (as defined in the applicable Notice) as required by the Regulation.

Illiquid shares within the scope of the Regulation: If the locate approval you receive from Banco de Madrid is for an illiquid share, each illiquid share will be identified and marked with the comment "Illiquid" and the Notice below relating to illiquid shares will apply.

Liquid shares within the scope of the Regulation: If the locate approval you receive from Banco de Madrid is for a liquid share, each liquid share will be identified by the absence of a comment and will be unmarked. For any such approved but unmarked share you can assume that it is for a liquid share and hence the Notice applicable to liquid shares below will apply. A share is deemed liquid for purposes of the Regulation if it is within the liquidity requirements defined by MiFID (Article 22 of Regulation (EU) No 1287/2006 of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the Council) or other shares that are included in the main national equity index as identified by the relevant authority of each Member State and are the underlying financial instrument for a derivative contract admitted to trading on a trading venue. All other shares not meeting the definition within the immediately prior sentence are illiquid shares for the purposes of the Regulation.

Sovereign Debt within the scope of the Regulation: If the locate approval you receive from Banco de Madrid relates to sovereign debt, the Notice below relating to Standard Sovereign Debt will apply.

If you have any questions regarding these notices, you may contact your usual contacts within Banco de Madrid.

November 2012

These terms and conditions apply to any notice that we issue to you (or to an investment manager or other agent acting on your behalf) (an “Illiquid Shares Notice”) in relation to shares to which EU Regulation No 236/2012 on short selling and certain aspects of credit default swaps (the “Regulation”) applies, excluding those shares referred to in Article 6(4) of Commission Implementing Regulation (EU) No 827/2012) (“Shares”).

These terms and conditions are supplemental to the prime brokerage agreement, master securities lending agreement or other terms of business, as applicable, entered into between you and us (the “Master Agreement”). To the extent that there is a conflict between these terms and conditions and the terms and conditions of the Master Agreement, these terms and conditions shall prevail. Words and expressions defined in the Master Agreement have the same meanings in these terms and conditions.

Commitment: If we issue an Illiquid Shares Notice to you or to an investment manager or other agent acting on your behalf, this will be a commitment by us to lend or otherwise transfer to you or to your order Shares of the description and up to the maximum number specified in the Illiquid Shares Notice (the “Maximum Number”), subject to the terms set out below and the terms of the Master Agreement. If we issue an Illiquid Shares Notice to an investment manager or other agent acting on your behalf and on behalf of another party or parties, the maximum aggregate amount of our commitment to all parties for whom such investment manager or other agent is acting will be equal to the Maximum Number of Shares.

Duration and undertaking: Our commitment will be valid in respect of sales of Shares entered into at or prior to the close of business on the date of the relevant Illiquid Shares Notice in the market within the European Economic Area (EEA) on which the Shares specified in the Illiquid Shares Notice are admitted to trading (or such other time as is specified in the Illiquid Shares Notice) (the “Cut-off Time”). Provided that you have, or an investment manager or other agent acting on your behalf has, submitted to us before 11:59 pm London time (or such other time as is specified in the Illiquid Shares Notice) (the “Trade File Cut-off Time”) a trade file specifying the relevant sale transactions (the “Trade File”), we undertake (subject to these terms and conditions and the terms of the Master Agreement) to lend or otherwise transfer to you or to your order Shares of the description specified in the Illiquid Shares Notice in a number (the “Actual Number”) equal to the lesser of (i) the number of such Shares specified in the Illiquid Shares Notice and (ii) the number of such Shares specified in the Trade File, for settlement at such time as is specified in the Trade File (being no earlier than the standard settlement time for the relevant Shares following the time of the trade). If the Trade File is submitted by an investment manager or other agent acting on your behalf and on behalf of another party or parties, the aggregate number of Shares that we undertake to lend or otherwise transfer to all parties for whom such investment manager or other agent is acting will be equal to the Actual Number of Shares.

Following the Trade File Cut-off Time we will have no further commitment to you in respect of any Shares other than those specified in the Trade File.

Revocation or amendment: We may at any time by notice to you revoke or reduce our commitment or specify a different Cut-off Time. Such notice will not affect our commitment to lend or otherwise transfer to you in accordance with these terms and conditions any Shares specified in the Illiquid Shares Notice that you have sold before such notice is given and that are specified in a Trade File submitted to us (whether before or after your receipt of such notice) before the Trade File Cut-off Time.

Terms: The fee or rate payable in respect of the loan or other provision of Shares will be as notified to or agreed with you (or an investment manager or other agent acting on your behalf).

Conditions: Our obligation to lend or otherwise transfer Shares to you in accordance with these terms and conditions is conditional on (i) your continued compliance in all material respects with the terms of the Master Agreement, including but not limited to your maintaining, providing or making available to us such amount of eligible margin or collateral in respect of the loan or other provision of Shares (together with your other obligations) as is required under the Master Agreement and any related documentation; and (ii) no event permitting us to terminate the Master Agreement without notice (“event of default”) or event which, upon the expiry of time or our determination in accordance with the provisions of the Master Agreement, would be an event of default having occurred.

Liability: Our liability for any failure to lend or otherwise transfer Shares to you in accordance with these terms and conditions shall be subject to the provisions of the Master Agreement including but not limited to any limitation of liability and force majeure provisions, provided that any force majeure provisions shall operate to exclude our liability for any such failure rather than to terminate our obligation to lend or otherwise transfer Shares to you
 
No representation: It is your sole responsibility to ensure your compliance with the requirements of the Regulation. We accept no obligation or liability in this regard, and make no representation as to the compliance of any arrangements with the requirements of the Regulation.

Acceptance: By entering into a short sale of Shares in the quantity and of the type specified in an Illiquid Shares Notice in reliance on these terms and conditions you will be deemed to accept these terms and conditions.

These terms and conditions apply to any locate approval notice that we issue to you (or to an investment manager or other agent acting on your behalf) (a “Liquid Shares Notice”) in relation to shares to which EU Regulation No 236/2012 on short selling and certain aspects of credit default swaps (the “Regulation”) applies and which meet the liquidity requirements established in Article 22 of Commission Regulation (EC) No 1287/2006, or are included in the main national equity index as identified by the relevant competent authority of a member state and are the underlying financial instrument for a derivative contract admitted to trading on a trading venue (as contemplated under Article 6(4) of Commission Implementing Regulation (EU) No 827/2012) (“Shares”).

These terms and conditions are supplemental to the prime brokerage agreement, master securities lending agreement or other terms of business, as applicable, entered into between you and us (the “Master Agreement”). To the extent that there is a conflict between these terms and conditions and the terms and conditions of the Master Agreement, these terms and conditions shall prevail. Words and expressions defined in the Master Agreement have the same meanings in these terms.

Confirmation: If we issue a Liquid Shares Notice to you or to an investment manager or other agent acting on your behalf, this will be confirmation by us that (subject to these terms and conditions): (i) we consider that we can make Shares of the description and up to the maximum number specified in the Liquid Shares Notice (the “Maximum Number”) available to you for settlement in due time (being the standard settlement time for the relevant Shares following the time of the trade) taking into account the amount of the Shares specified in the Liquid Shares Notice and market conditions; and (ii) such Shares are easy to borrow or purchase in the relevant quantity taking into account market conditions and other information available to us on the supply of such Shares. If we issue a Liquid Shares Notice to an investment manager or other agent acting on your behalf and on behalf of another party or parties, the aggregate number of Shares that we consider we can make available for settlement to all parties for whom such investment manager or other agent is acting will be equal to the Maximum Number of Shares.

No Commitment: The Liquid Shares Notice represents our assessment of our ability to make Shares available to you for settlement and is not an undertaking to lend or otherwise procure the transfer of Shares to you.

Duration: Our confirmation will be valid in respect of sales of Shares entered into at or prior to the close of business on the date of the relevant Liquid Shares Notice in the market within the European Economic Area (EEA) on which the Shares specified in the Liquid Shares Notice are admitted to trading (or such other time as is specified in the Liquid Shares Notice).

Liability: Our liability to you under these terms and conditions shall be subject to the provisions of the Master Agreement including but not limited to any limitation of liability and force majeure provisions.

No Representation: It is your sole responsibility to ensure your compliance with the requirements of the Regulation. We accept no obligation or liability in this regard, and make no representation as to the compliance of any arrangements with the requirements of the Regulation.

Confirmation: Without prejudice to the paragraph above, we confirm that as part of our business we participate in the borrowing and purchasing of Shares.  

These terms and conditions apply to any locate approval notice that we issue to you (or to an investment manager or other agent acting on your behalf) (a “Standard Sovereign Debt Notice”) in relation to sovereign debt instruments to which EU Regulation No 236/2012 on short selling and certain aspects of credit default swaps (the “Regulation”) applies (“Sovereign Debt”).

These terms and conditions are supplemental to the prime brokerage agreement, master securities lending agreement or other terms of business entered into between you and us (the “Master Agreement”). To the extent that there is a conflict between these terms and conditions and the terms and conditions of the Master Agreement these terms and conditions shall prevail. Words and expressions defined in the Master Agreement have the same meaning in these terms.

Confirmation: If we issue a Standard Sovereign Debt Notice to you (or to an investment manager or other agent acting on your behalf), this will be confirmation by us that (subject to these terms and conditions) we consider that we can make Sovereign Debt of the description and up to the maximum amount specified in the Standard Sovereign Debt Notice (the “Maximum Amount”) available to you for settlement in due time (being the standard settlement time for the relevant Sovereign Debt following the time of the trade) taking into account the amount of the Sovereign Debt specified in the Standard Sovereign Debt Notice and market conditions. If we issue a Standard Sovereign Debt Notice to an investment manager or other agent acting on your behalf and on behalf of another party or parties, the aggregate amount of Sovereign Debt that we consider we can make available for settlement to all parties for whom such investment manager or other agent is acting will be equal to the Maximum Amount of Sovereign Debt.

No Commitment: The Standard Sovereign Debt Notice represents our assessment of our ability to make Sovereign Debt available to you for settlement and is not an undertaking to lend or otherwise procure the transfer of Sovereign Debt to you.

Duration: Our confirmation will be valid in respect of sales of Sovereign Debt entered into at or prior to the close of business on the date of the relevant Standard Sovereign Debt Notice (or such other time as is specified in the Standard Sovereign Debt Notice).

Liability: Our liability to you under these terms and conditions shall be subject to the provisions of the Master Agreement including but not limited to any limitation of liability and force majeure provisions.

No Representation: It is your sole responsibility to ensure your compliance with the requirements of the Regulation. We accept no obligation or liability in this regard, and make no representation as to the compliance of any arrangements with the requirements of the Regulation. 

Confirmation: Without prejudice to the paragraph above, we confirm that as part of our business we participate in the borrowing and purchasing of Sovereign Debt.